remanded EB-1C Case: Construction Materials

U.S. Citizenship 
and Immigration 
Services 
In Re: 20601950 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN . 07, 2022 
Form 1-140, Petition for Multinational Manager or Executive 
The Petitioner, a distributor of construction materials and supplies, seeks to permanently employ the 
Beneficiary as its chief executive officer (CEO) 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. § l 153(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 Nebraska Service Center initially approved the petition but subsequently revoked 
that approval on notice, concluding that the record did not establish that the Petitioner would employ 
the Beneficiary in a managerial or executive capacity. The Director determined that the record 
contained unresolved inconsistencies regarding the Beneficiary's job duties and the Petitioner's 
organizational structure which cast doubt on the credibility and probative value of the submitted 
evidence. The matter is now before us on appeal. 
The burden of proof to establish eligibility for the benefit sought remains with the petitioner in 
revocation proceedings. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Cheung, 12 l&N Dec. 715 
(BIA 1968); and Matter of Estime , 19 I&N Dec. 450, 452, n. l (BIA 1987) . This office reviews the 
questions in this matter de novo. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . 
Upon de novo review, we will remand the matter to the Director for further action and entry of a new 
decision , consistent with the following discussion. 
I. LAW 
A. Multinational Managers and Executives 
An immigrant visa is available to a noncitizen 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 )(1 )(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 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(i)(3). 
B. Revocation Authority 
Section 205 of the Act, 8 U.S.C. § 1155, states: 'The Secretary of Homeland Security may, at any 
time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved 
by him under section 204. Such revocation shall be effective as of the date of approval of any such 
petition." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of record 
at the time the notice is issued, if unexplained and unrebutted, would warrant a denial 
of the visa petition based upon the petitioner's failure to meet his burden of proof. The 
decision to revoke will be sustained where the evidence of record at the time the 
decision is rendered, including any evidence or explanation submitted by the petitioner 
in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) ( quoting Matter of Estime, 19 I&N Dec. 450 (BIA 
1987)). Notwithstanding the USCIS burden to show "good and sufficient cause" in proceedings to 
revoke the approval of a visa petition, a petitioner bears the ultimate burden of establishing eligibility 
for the benefit sought. A petitioner's burden is not discharged until the immigrant visa is issued. 
Tongatapu Woodcraft of Haw., Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
II. ANALYSIS 
The Petitioner filed the immigrant petition in May 2017 and the Director initially approved it on May 
2, 2018. On June 21, 2021, the Director issued a notice of intent to revoke (NOIR), in which he 
advised the Petitioner that "evidence gathered during the processing of the beneficiary's Form I-485, 
Application to Register Permanent Residence or Adjust Status indicates that this petition may have 
been approved in error." 1 The Director did not, however, address this evidence in the NOIR or in the 
revocation decision. Rather, the discussion of evidence in the revocation decision is limited to 
information submitted with the Petitioner's initial 2017 filing and in support of its 2021 response to 
1 The record reflects that U.S. Citizenship and Immigration Services (USCTS) interviewed the Beneficiary in September 
2018, August 2019. and October 2020 to verity information provided on the Form T-485 and to confirm his eligibility for 
classification as a multinational manager or executive. The Director of the San Francisco, California Field Office also 
issued a request for evidence (RFE) in connection with the Form I-485 on September 19, 2019, in which he requested 
verification of the Petitioner's business location(s), staffing and organizational structure, business activities, and the 
Beneficiary's business-related travel. The Beneficiary responded to the RFE on November 15, 2019. 
2 
the NOIR. As noted, the Director revoked the approval of the petition after concluding that the 
Petitioner did establish that the Beneficiary would be employed in the United States in a managerial 
or executive capacity, as defined at section 10l(a)(44)(A) and (B) of the Act. 
In the revocation decision, the Director acknowledged that USCIS reviews the totality of the evidence 
when examining the claimed managerial or executive capacity of a beneficiary, including the 
beneficiary's job duties, the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. However, the Director did not reach 
this analysis of the totality of the evidence and instead, citing Matter of Ho, 19 I&N Dec. 582 (BIA 
1988), questioned the credibility and probative value of the evidence based on certain deficiencies and 
inconsistencies he deemed to be unresolved. 2 
On appeal, the Petitioner objects to the Director's determination that there are unresolved material 
inconsistencies in the record and maintains that Director failed to consider all evidence submitted in 
support of the petition. For the reasons discussed below, we find the Petitioner's assertions persuasive. 
Accordingly, we will withdraw the Director's decision and remand this matter for further action. 
The record reflects that, at the time of filing, the Petitioner had offices i and 
California, but since 2017 or 2018, has based its operations entirel i The Form 1-140 
indicates that the Beneficiary resides inl !California, nea In the NOIR, the 
Director noted "while not impossible, it appears impractical to manage the organization and direct the 
staff with two (2) office locations I andl I CA) while residing inl I CA." 
The Director did not further address this issue in the NOIR or suggest evidence that the Petitioner 
should provide to rebut the finding. The Petitioner's response to the NOIR included an explanation 
of how the Beneficiary carries out his duties remotely at times and the tools he uses for communication 
with other company staff. It also provided a chart detailing the Beneficiary's business travel for the 
period between February 2016 and May 2017, including dates, flight numbers, and hotel reservation 
numbers for most trips. 
In the revocation decision, the Director acknowledged the Petitioner's response and noted that it 
indicated that the Beneficiary had taken frequent trips td I However, the Director determined 
that the Petitioner failed to provide independent, objective evidence of the Beneficiary's travel to 
support its assertions and therefore did not adequately rebut the concerns the Director raised in the 
NOIR. 
On appeal, the Petitioner submits additional documentary evidence to corroborate the Beneficiary's 
business travel in 2016 and 2017, as detailed on the chart included with the NOIR response. Further, 
prior to the issuance of the NOIR, the record already contained extensive documentation related to the 
Beneficiary's business travel in 2018 and 2019, which he submitted in response to the RFE issued in 
September 2019. Although submitted in relation to the Beneficiary's Form 1-485, the evidence is part 
2 A petitioner must resolve inconsistencies with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 l&N Dec. at 591-92. Unresolved material inconsistencies may lead an officer to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
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of the record of proceeding, and the Director has specifically stated that evidence collected during the 
adjudication of the Form 1-485 has been considered. Therefore, the Director's conclusion that the 
record contains no documentation to corroborate the Beneficiary's frequent business travel to 
I is incorrect. Further, the Director did not indicate in the NOIR what type of evidence was 
required to address his concerns about the Beneficiary's residence outside normal commuting distance 
from I The Petitioner's failure to submit specific evidence that was never requested by the 
Director cannot be used to discredit its otherwise consistent claim. 
The record now contains documentation for the Beneficiary's business travel for the period from 2016 
to 2019. As the matter will be remanded, the Director should review this evidence, along with the 
Petitioner's and Beneficiary's explanations, to determine if the record supports a determination that 
the Beneficiary is able to perform his duties as CEO while dividing his time between his home and the 
Petitioner' sl I office. 
The Director also revoked the approval of the petition, in part, based on a determination that the record 
contains unresolved inconsistencies regarding the Beneficiary's job duties and his allocation of time 
to specific tasks and responsibilities. In the NOIR, the Director noted that the Petitioner's initial 
supporting letter stated that he would spend 50% of his time managing the forecasting and planning 
of specific business strategies to ensure business growth, 30% of his time monitoring activities of the 
company through high level communication with direct reports (sales manager, chief engineer, 
logistics manager), and the remainder of his time on managing unforeseen situations and unplanned 
meetings. 3 The Director advised that "the duties do not create a comprehensible view of the 
beneficiary's role within the petitioner's business operations" and did not "clearly allocate the 
beneficiary's time amongst the various daily tasks that would be associated with the broadly described 
duties." The Director requested a statement that clearly describes the Beneficiary's duties, an 
explanation of the specific daily tasks that are involved, and the percentage of time spent to be spent 
on each duty. 
In its response, the Petitioner emphasized that its initial description of the Beneficiary's duties was 
detailed in nature, supported by evidence, and not limited to the brief overview quoted by the Director 
in the NOIR. The Petitioner nevertheless provided the requested breakdown of how the Beneficiary 
allocates his time among eight areas ofresponsibility, noting that: 40% of his time would be spent on 
developing the company's business strategies and plans to achieve the company's short- and long­
term goals (with a list of ten associated tasks); 15% would be spent on leading and motivating his 
subordinate managerial team (with a list of seven associated tasks); and 10% would be spent on 
investment decisions that impact company profits. The Petitioner indicated that each of the remaining 
areas of responsibility would require no more than 8% of his time and would include overseeing 
operations and activities, ensuring adherence to policies, reviewing reports presented by managers, 
building relationships with key partners and shareholders, solving problems as they arise, and 
maintaining a deep knowledge of the industry and market. 
3 The Petitioner's letter dated May 5, 2017, included this broad overview of the Beneficiary's responsibilities as CEO, but 
also included an approximately IO-page narrative discussing his duties within the context of the business. which included 
examples of specific actions he had taken as CEO during the previous year. The Petitioner also submitted copies of minutes 
from monthly board of directors' meetings to corroborate the Beneficiary's completion of these actions. 
4 
The Director determined that the Petitioner's response to the NOIR "added new managerial duties to 
the job description while also changing the Beneficiary's allocation of time," and, citing Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971), emphasized that "a petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts." The Director ultimately 
concluded that "the descriptions of the beneficiary's position provided are of limited evidentiary value 
and not persuasive on the issue of whether the Beneficiary is employed in a qualifying role." The 
revocation decision contains no further discussion or analysis of the Beneficiary's job duties. 
On appeal, the Petitioner asserts that the job description provided in response to the NOIR was 
consistent with the initial description of the Beneficiary's CEO role and emphasized that neither 
description indicates that he would spend a significant amount of his time performing non-managerial 
or non-executive duties. 
After comparing the submitted position descriptions for the Beneficiary's position, we agree with the 
Petitioner's assertion that they do not contain material inconsistencies. The inclusion of additional 
details and a breakdown of the Beneficiary's role into more specific areas of responsibility was 
reasonable in light of the Director's request that the Petitioner elaborate on the information provided 
previously and did not materially change the responsibilities associated with the position as described 
at the time of filing. Further, while the Director stated that the submitted job descriptions have "limited 
evidentiary value" based on perceived unresolved inconsistencies, he appears to have concluded that 
they have no probative value at all, based on his decision to forego any analysis of those duties or to 
reach a determination as to whether they are consistent with the statutory definition of managerial or 
executive capacity. 
For the reasons discussed, we conclude that the Director erred by wholly dismissing the Petitioner's 
descriptions of the Beneficiary's position as inconsistent and by failing to analyze the submitted job 
descriptions within the context of the totality of the evidence in the record. Such evidence included 
not only evidence submitted in support of the initial petition and in response to the NOIR, but, as noted 
by the Director, evidence collected during the adjudication of the concurrently filed Form 1-485 
through interviews and an additional RFE. 
The Director also based his revocation decision, in part, on a determination that there are unresolved 
inconsistencies in the record relating to the Petitioner's organizational structure. The Director 
determined that the Petitioner resolved some of these issues in its response to the NOIR but concluded 
that it did adequately address inconsistencies related to two subordinate employees' job titles. 
Specifically, the Director noted that the Petitioner's organizational chart identifie<l I I as its 
sales manager andl I as a sales specialist but provided copies of these individuals' business 
cards indicating that I I is the company's "business strategist," while I is the "sales 
manager." In response, the Petitioner emphasized that a business card is not an official document and 
that the titles used on the business cards were intended for the purpose of engaging with potential 
clients and partners at a major trade show. The Petitioner provided copies of both individuals' 
employment contracts signed in 2016, which identified titles consistent with the Petitioner's 
organizational chart and other statements and evidence in the record. The Director agreed with the 
Petitioner that a business card is not an official document but determined that "the altered positions" 
for these two individuals was "another inconsistency that raised doubt as to the reliability of the 
evidence submitted. 
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In addressing the company's organizational structure, the Director concluded that the Petitioner "did 
not provide independent objective evidence to overcome the [in]consistencies, rather the petitioner 
tried to explain away the inconsistencies" and that "the inconsistencies noted within the organization's 
structure cast doubt on the reliability of the evidence submitted." The Director did not mention the 
employment contracts submitted in response to the NOIR or other evidence in the record reflecting 
that the Petitioner employed the individuals in the positions identified on the organizational chart. This 
evidence included many business documents identifying I I as "sales manager." As with the 
job descriptions, the Director appears to have wholly disregarded evidence related to the Petitioner's 
organizational structure as lacking in probative value and credibility due to inconsistencies, despite 
determining that the NOIR response resolved most of those inconsistencies. We agree with the 
Petitioner that the employees' use of different titles on their business cards does not provide a sufficient 
basis for disregarding all evidence of the Petitioner's staffing and structure as unreliable. 
The Director's determination that the submitted evidence of the Beneficiary's job duties and 
organizational structure was inconsistent and lacked credibility is not supported by the record and did 
reflect consideration of all evidence submitted in support of the petition. As this determination led the 
Director to revoke the approval of the petition without addressing the Beneficiary's job duties within 
the context of the totality of the evidence, it did not provide the Petitioner with an adequate basis for 
revocation. An officer must fully explain the reasons for denying a visa petition in order to allow the 
Petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful 
appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) 
(finding that a decision must fully explain the reasons for denying a motion to allow the respondent a 
meaningful opportunity to challenge the determination on appeal). Accordingly, the Director's 
decision is withdrawn. 
III. BASIS FOR REMAND 
Notwithstanding our withdrawal of the Director's decision, we conclude that the record as presently 
constituted does not establish that the Petitioner and Beneficiary meet all eligibility requirements for 
the benefit sought. Therefore, we will remand the matter to the Director for further action. 
Whether a beneficiary will be employed in a managerial or executive capacity turns on whether the 
Petitioner has sustained its burden of proving that their duties are "primarily" managerial or executive. 
See sections 10l(a)(44)(A) and (B) of the Act. In evaluating whether a petitioner has met this burden, 
we review the totality of the evidence when examining the claimed managerial or executive capacity 
of a beneficiary, including the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. 
As discussed above, the record contains lengthy descriptions of the Beneficiary's duties which have 
not yet been fully analyzed by the Director. Further, the Director has not yet evaluated the 
Beneficiary's duties in light of evidence submitted regarding the company's structure, staffing levels, 
the nature of the business and other relevant factors. The Director will need to review all relevant 
evidence to determine if the Beneficiary would, more likely than not, be employed in a managerial or 
executive capacity as defined at section 10l(a)(44)(A) or (B) of the Act. 
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With respect to the company's staffing levels, we note that, at the time of filing in May 2017, the 
Petitioner documented its employment of seven individuals, including the Beneficiary, a sales 
manager, a chief engineer, a logistics manager, a bookkeeper, a sales specialist, and warehouse 
worker/driver. The Petitioner explained that the Beneficiary directly supervises the sales manager, 
chief engineer, and logistics manager, and that each of these individuals manages their own 
department, makes decisions regarding departmental operations, and is responsible for performance 
of their own staff The organizational chart submitted with the initial filing indicated that the company 
had vacancies for a second sales specialist, a logistics specialist, and a second warehouse worker and 
the Petitioner's supporting letter indicated that those positions would soon be filled. 
However, the record reflects that by the end of 2017, the number of employees supervised by the 
Beneficiary had been reduced from six to three, and only the sales manager, logistics manager and 
bookkeeper remained on the company's payroll. The Petitioner has claimed that its hiring and business 
expansion plans have been impacted by the Beneficiary's lengthy adjustment of status process. 
However, this 50% reduction in subordinate staff occurred in 2017, prior to the initial approval of the 
Form 1-140, at a time when the Petitioner indicated that it would be hiring additional employees. The 
record reflects that the Director was not aware of the staffing reduction when he approved the petition 
in May 2018. The record does not indicate that the company ever returned to the staffing levels 
documented at the time of filing or proceeded with the additional hiring planned at that time.4 Nor has 
the Petitioner explained how the Beneficiary's duties, and the amount of time he may be expected to 
allocate to non-executive or non-managerial duties, were impacted by the reduction in staff. 
A company's size alone may not be the only factor in determining whether the Beneficiary is or would 
be employed in a managerial or executive capacity. See section 101(a)(44)(C) of the Act. However, 
it is appropriate for USCIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as the absence of employees who would perform the non-managerial or non­
executive operations of the company. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006). Based 
on the evidence of record, we cannot determine that a staff of three subordinates would sufficiently 
relieve the Beneficiary from significantly engaging in non-executive and non-managerial tasks 
necessary for the day-to-day operation of the business. As noted, a petitioner's burden for the benefit 
sought is not discharged until the immigrant visa is issued. Tongatapu Woodcraft of Haw., Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984). 
As the matter is being remanded, the Director may issue a new notice of intent to revoke to allow the 
Petitioner an opportunity to provide additional evidence relevant to the issues discussed above, and 
any other evidence deemed necessary to demonstrate eligibility for the classification sought. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
4 The Petitioner's wage and payroll records indicate that the company had a Texas-based sales employee for part of 2018 
who appears to have left the company, and that it hired a marketing employee in early 2019. The Petitioner has not 
documented evidence of wages paid to employees after the second quarter of 2019. 
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