remanded EB-1C Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 7466882 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 19, 2020 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner seeks to permanently employ the Beneficiary as its President under the first preference 
immigrant classification for multinational executives or managers. 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 Petitioner did not 
establish that the Beneficiary had been employed in an executive capacity abroad. The Director also 
determined that the Petitioner did not demonstrate that the Beneficiary would be employed in an 
executive capacity in the United States . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will remand the matter to the 
Director for further consideration and entry of a new decision. 
I. LEGAL FRAMEWORK 
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 I-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 has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition , that the beneficiary is coming to work in the United States 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). 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Petitioner asserts that the Beneficiary was employed abroad in a managerial capacity by its parent 
company in China. 1 However, the Director determined that the Petitioner did not establish that its 
foreign parent employed the Beneficiary in an executive capacity. He did not review the Beneficiary's 
eligibility as a manager and solely focused on whether she was employed abroad as an executive. On 
remand, the Director shall consider the arguments and evidence submitted by the Petitioner and 
analyze whether the Beneficiary was employed abroad as a manager. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Petitioner asserts in parts of the record that the Beneficiary will be primarily engaged in executive 
duties under section 10l(a)(44)(B) of the Act,2 but it also asserts in parts of the record that the 
Beneficiary will be primarily engaged in managerial duties under section 101(a)(44)(A) of the Act.3 
The Director determined that the Petitioner did not establish that it would employ the Beneficiary in 
the United States in an executive capacity. Id. However, the Director did not review the Beneficiary's 
eligibility as a manager and solely focused on whether she would be employed in the U.S. as an 
executive. On remand, the Director shall consider the arguments and evidence submitted by the 
Petitioner and analyze whether the Beneficiary will be employed in the U.S. as a manager or executive. 
1 The Petitioner asserts that the Beneficiary served as sales manager for its parent company in China for over two years 
starting in June 2014. However. in a B-2 nonimmigrant visa application submitted in September 2015. the Beneficiary 
indicated that she was the "Vice General Manager" for the foreign entity. Further, in a B-2 nonimmigrant visa application 
submitted in November 2014, the Beneficiary indicated that she was the "Assistant of General Manager" for the foreign 
entity. On remand, the Petitioner may submit additional evidence to rebut this derogatory information regarding the 
Beneficiary's position abroad. 8 C.F.R. § 103.2(b)(16)(i). 
2 For example, in letters supporting the petition and the response to the request for evidence, the Petitioner asserted that 
the position of President is "the most senior executive position within! .r I• 
3 The Petitioner also asserted in the letters referenced above that the Beneficiary's duties are "managerial in nature." On 
appeal, it states that the Beneficiary manages an essential function of the Petitioner and asserts that the "specific job duties 
are primarily managerial or executive in nature." 
2 
IV. ABILITY TO PAY 
Although not discussed by the Director, we note that the record does not contain regulatory required 
evidence of the Petitioner's ability to pay the proffered wage from the priority date continuing until 
the Beneficiary obtains lawful permanent residence. The regulation at 8 C.F.R. § 204.5(g)(2) requires 
that"[ e ]vidence of this ability shall be either in the form of copies of annual reports, federal tax returns, 
or audited financial statements." In this case, the priority date is October 19, 2018, the date the 
immigrant petition was filed. See 8 C.F.R. § 204.5(d). 
The Petitioner submitted evidence of wages paid to the Beneficiary in 2018 that are equal to the 
proffered wage of$60,000. However, without an annual report, federal tax return, or audited financial 
statements for 2018, we cannot affirmatively find that the Petitioner has the ability to pay. 4 On 
remand, the Director should request such regulatory-required evidence and allow the Petitioner 
reasonable time to respond. 
V. CONCLUSION 
As the Director's decision did not evaluate the Beneficiary's eligibility as a manager abroad or in the 
U.S, we will remand the matter to the Director for farther consideration. On remand, the Director 
should also address whether the Petitioner has demonstrated its ability to pay the proffered wage. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
4 The record contains the Petitioner's unaudited financial statements for 2018. Where a petitioner relies on financial 
statements to demonstrate its ability to pay the proffered wage, the financial statements must be audited. 8 C.F.R. 
§ 204.5(g)(2). As there is no accountant's report accompanying these statements, we cannot conclude that they are audited 
statements. Unaudited financial statements are the representations of management. The unsupp01ted representations of 
management are not reliable evidence and are insufficient to demonstrate the ability to pay the proffered wage. 
3