remanded EB-1C Case: Cabinet Design And Sales

U.S. Citizenship 
and Immigration 
Services 
In Re : 25516566 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 2, 2023 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner , an entity engaged in cabinet designs, sales , and installation , seeks to permanently 
employ the Beneficiary as its "President and General Manager " under the fust 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 Nebra ska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had the ability to pay the Beneficiary's proffered wage at the time of filing , 
continues to have that ability, and that it continues to do business. The Director also concluded that 
the Petitioner provided foreign documents that were not accompanied by properly certified English 
language translation s and therefore did not establish that the Beneficiary's foreign employer was doing 
business at the time of filing and continues to do business. The matter is now before us on appeal. 
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 Christa 's, Inc., 26 I&N Dec. 537 , 537 n.2 (AAO 2015) . Upon de novo review, 
we will therefore withdraw the Director's decision and remand the matter for entry of a new decision 
consistent with the following analysis. 
I. LAW 
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 State s 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 State s 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). 
II. BASIS FOR REMAND 
First, regarding the Director's conclusion that the record does not establish that the Petitioner and its 
foreign parent entity have been and continue to do business, the Petitioner has provided additional 
evidence on appeal addressing the previously noted evidentiary deficiencies. See 8 C.F.R. 
§ 204.5(j)(2) (for the definition of the term doing business). Namely, the Petitioner has provided 
business documents accompanied by properly certified foreign language translations in compliance 
with 8 C.F.R. § 103.2(b)(3). The new evidence includes several of the foreign entity's supply and 
work order contracts, VAT invoices, and tax and bank statements. Together, these documents 
adequately demonstrate that the foreign entity has been and continues to engage in business 
transactions that are consistent with an entity that is doing business. The Petitioner has also provided 
additional customer contracts and invoices showing that it had been doing business prior to, and has 
continued to do business since, the date this petition was filed. See 8 C.F.R. § 103.2(b)(l) (requiring 
that eligibility for the requested benefit be established at the time of filing and continuing until the 
final adjudication). We will therefore withdraw the Director's adverse conclusions concerning the 
foreign entity and the Petitioner doing business during the relevant time periods. 
Next, we will discuss the issue of the Petitioner's ability to pay. The Petitioner must establish its 
ability to pay the Beneficiary's proffered wage from the priority date onward. The priority date in this 
instance is February 2, 2022. The regulatory requirements for ability to pay state that evidence must 
be in the form of a petitioner's annual reports, federal tax returns, or audited financial statements; 
consideration of additional evidence is acceptable in "appropriate cases." 8 C.F .R. § 204.5(g)(2). The 
Director's decision in this matter was issued in October 2022, the same year this petition was filed. 
As such, required evidence of the Petitioner's ability to pay the proffered wage in 2022 was not yet 
available, and the Director based the ability to pay determination on evidence that predates the priority 
date. Required evidence of the Petitioner's ability to pay after the February 2022 priority date, should 
now be available. We will therefore remand this matter to the Director. On remand, the Director 
should ask the Petitioner to submit copies of annual reports, federal tax returns, or audited financial 
statements covering periods after the petition's priority date. Upon receipt of a timely response, the 
Director should issue a new decision based upon a comprehensive review of all relevant evidence. 
Finally, despite our withdrawal of the Director's decision, the record lacks sufficient evidence 
establishing that the Beneficiary would be employed in the United States in a managerial or executive 
capacity. Although the Petitioner initially claimed that the Beneficiary would "permanently serve in 
[a] primarily managerial capacity," the Petitioner listed two components of"executive capacity" when 
describing the Beneficiary's proposed job duties. Namely, the Petitioner stated that directing the 
management of the company and exercising wide latitude in discretionary decision-making, both 
components of the definition of executive capacity, will comprise 90% of the Beneficiary's proposed 
position. See section 101 (a)( 44)(B)(i) and (iii) of the Act. It is therefore unclear whether the Petitioner 
is claiming that the nature of the Beneficiary's proposed employment would be managerial or 
executive. We note that a petitioner claiming that the beneficiary's position will consist of a mixture 
of managerial and executive duties will not meet its burden of proof unless it has demonstrated that 
the beneficiary will primarily engage in either managerial or executive capacity duties. See section 
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10l(a)(44)(A)-(B) of the Act. While in some instances there may be duties that could qualify as both 
managerial and executive in nature, it is the petitioner's burden to establish that the beneficiary's duties 
meet each set of criteria set forth in the statutory definition for either managerial or executive 
capacity. A petition may not be approved if the evidence of record does not establish that the 
beneficiary will be primarily employed in either a managerial or executive capacity. 
We further note that a determination of whether the Beneficiary's U.S. employment would be in a 
managerial capacity hinges on a comprehensive analysis which includes consideration of the proposed 
job duties and the organizational hierarchy within which those duties are to be performed. The U.S. 
job descriptions provided in this matter lack sufficient detail about the actual job duties the Beneficiary 
would perform within the scope of a cabinet retail and design business. Further, the additional 
quarterly tax returns submitted in response to the Director's request for evidence show a significantly 
reduced work force. Although the Petitioner claimed to employ a six-person staff at the time of filing, 
it claimed four employees in its 2022 first quarterly tax return and three employees the following 
quarter, thus indicating that only months after filing this petition, it was operating with half of the 
originally claimed staff To establish eligibility for the requested classification, the Petitioner must 
provide evidence that the Beneficiary would be "primarily" employed in a managerial or executive 
capacity. See, e.g., sections 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform 
the enumerated managerial or executive duties); Matter of Church Scientology Int'!, 19 I&N Dec. 593, 
604 (Comm'r 1988). The significant reduction in personnel leads us to question whether the Petitioner 
is adequately staffed to relieve the Beneficiary from having to primarily perform operational job 
duties, and perform duties consistent with a primarily managerial or executive position. 
Accordingly, the Director may wish to request that additional evidence be submitted to clarify the 
above-described ambiguities regarding the proposed employment, as well as additional evidence 
related to the Petitioner's ability to pay the proffered wage. The Director should consider any new 
evidence submitted prior to making a determination concerning the Petitioner's eligibility. 
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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