remanded EB-1C Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 26409116 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2023 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, an engineering services business, seeks to employ the Beneficiary as its head of 
engineering and operations 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 )(1 )(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in a managerial or executive capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary was employed with a qualifying entity abroad for at least one year in the 
three years preceding his entry to the United States to work for the Petitioner as a nonimmigrant. 
Specifically, the Director determined that the Beneficiary could not meet this foreign employment 
requirement because the Petitioner's qualifying relationship with the Beneficiary's foreign employer 
was formed less than one year prior to the Beneficiary ' s entry to the United States. 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 Christa's, Inc., 26 I&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. 
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 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. 
A U.S. employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a beneficiary as 
a multinational executive or manager under section 203(b)(l)(C) of the Act. The Form 1-140 must 
include a statement from an authorized official of the petitioning employer which demonstrates that 
the beneficiary has been employed abroad in a managerial 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(i)(3)(i). 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 was employed by the entity 
abroad in a managerial or executive capacity for at least one year in the three years preceding the 
beneficiary's entry as a nonimmigrant. See 8 C.F.R. § 204.5(i)(3)(i)(B). 
To establish a "qualifying relationship," a petitioner must demonstrate that a beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (a U.S. entity with a foreign office) 
or related as a "parent and subsidiary" or as "affiliates." See § 203(b )(1 )(C) of the Act; see also 8 
C.F.R. § 204.5(i)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
II. ANALYSIS 
At issue on appeal is whether the Beneficiary has the required one year of employment with a 
qualifying entity abroad in the three years preceding his entry to the United States. 
The Petitioner asserts that the Beneficiary was employed by its Indian subsidiary I 
in a a managerial capacity from October 2018 "until his transfer to the U.S. in October 2021." The 
record reflects that the Beneficiary was last admitted to the United States in H-lB status on October 
24, 2021 pursuant to an approved Form 1-129, Petition for a Nonimmigrant Worker, filed by a different 
U.S. employer I I. 1 The Petitioner subsequently filed a Form 1-129 on the Beneficiary's behalf 
and he was granted H-lB status authorizing employment with the Petitioner for a three-year period 
commencing on November 18, 2021. 2 The Petitioner must therefore establish that the Beneficiary had 
at least one year of employment abroad with its foreign subsidiary in the three-year period preceding 
this date, under 8 C.F.R. § 204.5(i)(3)(i)(B). 
The Director concluded that the Beneficiary did not possess the required one year of employment with 
a qualifying entity abroad. In reaching this conclusion, the determined that the Beneficiary's period 
of qualifying foreign employment did not begin to accrue until the Petitioner formed a qualifying 
relationship with the Beneficiary's foreign employer. 
Specifically, the record reflects that the qualifying parent-subsidiary relationship was formed on or 
about June 4, 2021, when the Petitioner acquired 765 of the 1500 shares issued by the Indian entity. 
See 8 C.F.R. § 204.5(i)(2) (defining "subsidiary," in relevant part, as a legal entity of which a parent 
owns, directly or indirectly, more than half of the entity and controls the entity). The Director 
acknowledged that a qualifying relationship between the two entities existed when this petition was 
filed in April 2022. However, the Director, noting the Beneficiary's last entry to the United States in 
October 2021, concluded that "it does not appear plausible that the beneficiary could have garnered 
the full one year of qualifying managerial or executive experience abroad within the three years 
preceding the beneficiary's entry, because the multinational relationship between the petitioner and 
1 The Petitioner has neither claimed nor provided evidence that it has a qualifying relationship with this employer. 
2 The record also includes a Form I-797 A Approval Notice for a prior H-lB classification petition the Petitioner filed on 
the Beneficiary's behalf. It was approved in February 2019 and valid from August 25, 2018 until August 24, 2021. 
2 
the organization abroad did not exist until June 4, 2021." Based on this reasoning, the Director did 
not consider any employment experience the Beneficiary gained with the foreign entity prior to June 
4, 2021 to accrue towards his employment abroad with a related entity. The Director concluded that 
"the qualifying multinational relationship between the firm, corporation or other legal entity had to 
have existed during the one-year period." 
We conclude, however, that the Director's analysis incorrectly conflates two separate eligibility 
requirements for this classification. One requirement pertains to the existence of a qualifying 
relationship, while the other pertains to the Beneficiary's employment abroad, and focuses on the dates 
and duration of such employment. However, nothing in the statute or regulations suggests that the 
qualifying relationship between a foreign employer and the prospective employer in the United States 
must have existed for any specific length of time. 
Therefore, while we agree the qualifying relationship between the Petitioner and its Indian subsidiary 
had existed for less than one year at the time the Beneficiary was last admitted to the United States, 
this fact is not relevant for the purpose of determining eligibility for this classification. The relevant 
regulations are sufficiently clear in requiring that the Beneficiary's "prospective employer in the 
United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal 
entity" that employed the Beneficiary abroad. 8 C.F.R. § 204.5(j)(3)(i)(C). The regulation's use of 
the word "is" indicates that the relationship between the Petitioner and the Beneficiary's foreign 
employer must exist in the present, i.e., at the time of filing, and that it must continue to exist through 
adjudication. See 8 C.F.R. § 103.2(b)(l). If a qualifying relationship exists at the time of filing the 
Form I-140, a petitioner may be able to establish eligibility, even if that qualifying relationship did not 
exist during a beneficiary's period of foreign employment in a managerial or executive capacity. 
A. Withdrawal of Director's Decision 
Based on the foregoing discussion, a pet1t10ner may demonstrate eligibility under the separate 
qualifying relationship and foreign employment requirements provided that it can demonstrate: (1) a 
qualifying relationship exists between the U.S. petitioner and the beneficiary's foreign employer at the 
time of filing; (2) the beneficiary's employment abroad was with an entity that has a qualifying 
relationship with the petitioner at the time of filing; and (3) the beneficiary's employment with the 
foreign entity was in a managerial or executive capacity and its duration was at least one year within 
the prescribed three-year period. 
Here, the record establishes that the Petitioner had a qualifying parent-subsidiary relationship with 
at the time of filing. The Petitioner does not need to establish that it had a 
qualifying relationship with the Indian entity for a full year prior to the Beneficiary's entry to the 
United States in October 2021. As the Director imposed a requirement that is not supported by the 
statute or regulations, and denied the petition solely on this basis, the Director's decision is withdrawn. 
B. Basis for Remand 
Although the Director's decision will be withdrawn, the record as presently constituted does not 
contain sufficient evidence to establish the Beneficiary's full year of employment abroad with its 
3 
foreign subsidiary. Accordingly, we will remand the Director for further review and issuance of a new 
decision consistent with the following discussion. 
As noted, the Petitioner asserts that the Beneficiary was employed by its Indian subsidiary as "Head 
of Engineering and Operations" from October 2018 until October 2021. 3 In support of its claim, the 
Petitioner provided copies of monthly earnings statements issued to the Beneficiary between 
September 2020 and December 2021. 4 This evidence indicates that the foreign entity continued to 
pay the Beneficiary's salary following his October 2021 entry to the United States. However, the 
earnings statements for November and December 2021 cannot be considered in calculating whether 
the Beneficiary has the required one year of employment abroad. 
In addition, based on the information provided on the Beneficiary's earnings statements, it appears he 
began receiving a salary from the foreign entity in August 2020, not in October 2018 as claimed. 
Specifically, the September 2020 statement indicates that the Beneficiary was paid INR 75,000 for 
that month with year-to-date earnings ofINR 150,000, suggesting that he was likely paid for only one 
prior month in 2020. The record also lacks evidence establishing when the foreign entity was 
incorporated in India and when it commenced doing business. If the Petitioner maintains that the 
foreign entity employed the Beneficiary in a managerial capacity as early as the last quarter of 2018, 
it should provide evidence that the company was incorporated, staffed, and doing business at that time. 
We also note that the submitted earnings statements identify the Beneficiary's title as "Technical 
Head" for the months of September 2020 through March 2021 and July 2021, while the remaining 
statements indicate his title as "Head - Vehicle Engineering." However, the Petitioner has indicated 
that the Beneficiary held only one position for the duration of his employment with the foreign entity. 
Ifhe did in fact hold two different positions and the Petitioner cannot establish that he held either one 
for a full year, it would need to provide evidence that both positions were in a managerial capacity. 
Finally, we observe that the Beneficiary applied for nonimmigrant visas on multiple occasions in the 
year preceding his entry to the United States and provided information on his Forms DS-160, Online 
Nonimmigrant Visa Application, that appears to be inconsistent with the Petitioner's statements and 
evidence relating to his foreign employment. In November 2020, he submitted an F-1 visa application 
to the U.S. Consulate in Mumbai on which he claimed to be "not employed" at the time of the 
application and stated that his last employment was as head of engineering and operations for the 
Petitioner in Michigan from October 31, 2018 until November 23, 2020. In a subsequent F-1 
nonimmigrant visa application he submitted in June 2021, the Beneficiary listed the same dates of 
employment with the Petitioner and indicated that he had been employed by the Indian subsidiary 
since January 11, 2021. In his H-lB visa application submitted to the U.S. consulate in August 2021, 
the Petitioner stated that he had been employed by the Petitioner since October 31, 2018 and did not 
indicate any period of employment with the Indian subsidiary. 
As the Petitioner has not had the opportunity to address the deficiencies and potential inconsistencies 
discussed above, or to rebut the potentially derogatory information from outside the record of 
3 U.S. Department of Homeland Security records indicate that the Beneficiary was in the United States from January 15, 
2018 until November 18, 2018; therefore, he could not have been employed abroad with the Petitioner's foreign subsidiary 
beginning in October 2018. 
4 The Petitioner did not submit copies of earnings statements for the months of April 2021 and August 2021. 
4 
proceedings, the matter will be remanded to the Director for further consideration. The Director 
should review the evidence ofrecord pertaining to the Beneficiary's foreign employment abroad and 
issue a new request for evidence or notice of intent to deny. See 8 C.F.R. § 103.2(b)(8); see also 8 
C.F.R. § 103.2(b )(16)(i). The Petitioner should be provided an opportunity to supplement the record 
with additional explanation and evidence, which may include additional personnel and tax records 
corroborating the dates of the Beneficiary's employment with the foreign subsidiary and a more 
detailed explanation of the position(s) he held abroad. 
In addition to establishing that the Beneficiary has at least one year of qualifying employment with 
the Petitioner's foreign subsidiary, the Petitioner must demonstrate that it and the foreign entity 
continue to have a qualifying relationship and are doing business as defined in the regulations, that it 
has the continuing ability to pay the Beneficiary's offered wage from the date of filing in April 2022, 
and that it will employ the Beneficiary in the United States in a managerial or executive capacity. 
Therefore, prior to issuing an RFE or NOID, the Director should review the record in its totality and 
determine whether additional or updated evidence is needed to demonstrate that all other eligibility 
requirements for this classification have been met. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
5