remanded EB-1C Case: Auto Sales

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 27, 2023 In Re: 27406327 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a business engaged in pre-owned auto sales, seeks to permanently employ the 
Beneficiary as its chief executive officer under the first preference immigrant classification for 
multinational managers or executives. See Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that (1) the Petitioner's claimed foreign affiliate employed the Beneficiary abroad in a 
managerial or executive capacity for at least one year during the relevant three-year period; and (2) 
the Petitioner has a qualifying relationship with the Beneficiary's foreign employer. The Director 
further concluded, based on information obtained from outside the record of proceeding, that the 
Petitioner willfully misrepresented material facts relating to the Beneficiary's employment abroad. 
The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n .2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis . 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary is coming 
to work in the United States as a manager or executive for the same employer or a subsidiary or affiliate 
of the foreign employer, and that the prospective U.S. employer has been doing business for at least 
one year. See 8 C.F.R. § 204.5(j)(3)(i)(C)-(D). If a beneficiary is already in the United States working 
for an entity that has a qualifying relationship with their foreign employer, the petitioner must establish 
that the beneficiary, in the three years preceding their entry as a nonimmigrant, was employed by the 
entity abroad for at least one year in a managerial or executive capacity. See 8 C.F.R. 
§ 204.5(j)(3)(i)(B). 
The Director denied the petition on multiple grounds after issuing a notice of intent to deny (NOID). 
The Director concluded that the Petitioner did not establish that (1) the Beneficiary had at least one 
year of qualifying employment abroad in a managerial or executive capacity and (2) the Petitioner has 
a qualifying relationship with the Beneficiary's claimed foreign employer. The Director also 
determined, based on the results of an overseas verification conducted by the U.S. Department of State, 
that the Petitioner had willfully misrepresented material facts with respect to the Beneficiary's foreign 
employment. 
For the reasons provided below, we agree with the Director's conclusion that the record does not 
establish the Beneficiary's eligibility for the requested classification. However, the NOID did not 
provide proper notice of certain derogatory information that led the Director to enter a separate finding 
of willful misrepresentation. 
If a decision will be adverse to a petitioner and is based on derogatory information considered by U.S. 
Citizenship and Immigration Services (USCIS) and of which the petitioner is unaware, the petitioner 
must be advised of this fact and offered an opportunity to rebut the information and present information 
on its behalf before a decision is rendered. 8 C.F.R. § 103.2(b)(16)(i). Here, the NOID stated: "The 
Department of State requested the overseas verification, and it did not confirm that the beneficiary 
was ever employed by the foreign company in Venezuela." The Director did not disclose any 
information regarding the type of verification conducted or the specific information it revealed. As as 
result, the NOID did not provide adequate notice of the derogatory information that formed the basis 
of the Director's finding ofwillfol misrepresentation and did not provide a meaningful opportunity for 
the Petitioner to rebut it. 
Accordingly, we will withdraw the Director's decision and remand the matter for farther review, 
issuance of a new NOID, and entry of a new decision. We are remanding this matter to ensure that 
the Petitioner has an opportunity to rebut the derogatory information that resulted in the Director's 
finding of willful misrepresentation. 
However, we emphasize that the record as presently constituted supports the Director's conclusion 
that the Beneficiary would not otherwise meet the foreign employment requirement for this 
classification as set forth in the statute and regulations. 
At the time of filing this petition in May 2015, the Beneficiary was working for the Petitioner in E-2 
nonimmigrant status and had maintained that status since her initial admission in E-2 status on August 
31, 2007. 1 If a beneficiary entered the United States to work for a qualifying entity as a nonimmigrant 
in a work-authorized status, USCIS will reach back three years from the date of their admission to 
1 Her most recent admission to the United States occurred on July 30, 2008, and the record reflects that USCIS has since 
approved multiple requests to extend her E-2 status. 
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determine whether they had the requisite one year of employment abroad. See 8 C .F .R. 
§ 204.5(j)(3)(i)(B), see also Matter ofS-P-Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018). 
Here, because the Beneficiary was initially admitted as a nonimmigrant to work for the Petitioner on 
August 31, 2007, the Petitioner must establish that she worked abroad for its claimed foreign affiliate 
for at least one year between August 2004 and August 2007. The Petitioner has neither claimed nor 
provided evidence that the Beneficiary worked for the foreign entity during this period. Further, based 
on the evidence submitted, the Petitioner does not claim she was employed by the foreign entity or a 
qualifying U.S. entity at any time between December 2002 and August 2007. In Matter of S-P-, we 
clarified that a beneficiary who worked abroad for a qualifying multinational organization for at least 
one year but left the organization for a period of more than two years after being admitted to the United 
States as a nonimmigrant, does not satisfy the foreign employment requirement for immigrant 
classification as a multinational manager or executive. 
Here, the Petitioner asserts that the Beneficiary's qualifying employment abroad occurred between 
2000 and 2002, prior to her entry to the United States in B-2 status on December 19, 2002, a status 
she maintained until she was granted a change of nonimmigrant status from B-2 to L-2 in March 2004. 
However, the Beneficiary was not admitted to the United States to work for the Petitioner or another 
qualifying entity as a nonimmigrant in December 2002. She was adinitted as a B-2 visitor and did 
begin working for the Petitioner as a nonimmigrant until August 2007. Therefore, the Petitioner's 
reliance on this earlier date of entry for purposes of demonstrating her eligibility under 8 C.F.R. § 
204.5(j)(3)(i)(B) is misplaced. The evidence presented by the Petitioner to date does not establish that 
the Beneficiary can meet the foreign employment requirement for this classification, even if the 
Director were to determine that the Beneficiary's claimed employment abroad between 2000 and 2002 
could be verified. 
The Director's decision is withdrawn as they did not provide the Petitioner with adequate opportunity 
to rebut derogatory information from outside the record of proceeding prior to making a finding of 
willful misrepresentation, as required by 8 C.F.R. § 103 .2(b )( 16)(i). On remand, the Director should 
consider all evidence already submitted, including the evidence and claims submitted on appeal, issue 
a new NOID providing adequate notice of any derogatory information considered, and enter a new 
decision. 
ORDER: The Director's decision is withdrawn . The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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