remanded EB-1C Case: Enterprise Software

MATTER OF s~T- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 27, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a company engaged in the development and marketing of enterprise software, seeks 
to permanently employ the Beneficiary as its business development director 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 
a managerial or executive capacity. 
The Director of the Nebraska Service Center denied the petition determining that the Petitioner did 
not establish, as required, that the Beneficiary was employed abroad, and would be employed in the 
United States, in a managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director overlooked relevant evidence and misapplied the 
law to the facts of the case. It maintains that the Beneficiary was employed abroad by its foreign 
affiliate, and would be employed in the United States, in an executive capacity. 
Upon de nova review of the record, we agree with the Petitioner's assertions. The Director focused 
on the size of the Petitioner and its foreign affiliate in determining that the Beneficiary had been and 
would be required to spend his time primarily on the day-to-day sales and marketing duties of the 
company. However, the Petitioner has established that, due to the nature of the business, it has a 
reasonable need for the Beneficiary to perform primarily higher-level business planning and 
development functions that are consistent with the statutory definition of executive capacity. 
Specifical_ly, the record shows that he would be responsible for directing the business development 
function with the indirect assistance of subordinate managers, professionals, and contractors. The 
record also establishes that he performed similar duties while employed in the same role with the 
Petitioner's foreign affiliate prior to his transfer to the United States. 
However, the record does not establish that the Beneficiary had at least one year of qualifying 
employment abroad in this executive capacity. Accordingly, we will withdraw the Director's 
decision and remand the matter for further proceedings consistent with our discussion below. 
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Matter of S-T- LLC 
I. LEGAL FRAMEWORK 
Section 203(b )( l )(C) of the Act makes an immigrant visa 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. 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. The 
petition 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). 
IL ONE YEAR OF EMPLOYMENT ABROAD 
Although we will wit~draw the Director's decision, the evidence of record does not establish that the 
Beneficiary had at least one year of employment abroad in the executive position of business 
development director prior to his entry to the United States as a nonimmigrant. · 
If a beneficiary is already in the United States working for the same employer or a subsidiary or 
affiliate of the firm, corporation, or other legal entity by which the beneficiary was employed 
overseas, then the petitioner must demonstrate that, in the three years preceding entry as a 
nonimmigrant, the beneficiary was employed by the entity abroad for at least one year in a 
managerial or executive capacity . 8 C.F.R. § 204.S(i)(J)(i)(B). , 
The Petitioner filed the Form 1-140 on 2016 . At that time, the Beneficiary had last entered 
the United States as a 81 nonimmigrant visitor on 2015 . He was later granted a change 
of status from BI to that of an LI A nonimmigrant intracompany transferee in a managerial or 
executive capacity on 2016. As a beneficiary's qualifying employment abroad accrues 
only when the Beneficiary is physically outside the United States, the Petitioner must show that he 
had at least one year of employment with a qualifying entity abroad prior to his entry on 
2015. 
At the~time of filing, the Petitioner submitted a letter signed by the foreign affiliate's chief financial 
officer (CFO), who stated that the Beneficiary joined that company as business development director 
on 2014. The CFO's letter was accompanied by.payroll records demonstrating that the 
foreign entity paid the Beneficiary for all 12 months of 2015, including the three months during 
which he was physically present in the United States. The record also contains the Beneficiary's 
employment agreement with the foreign entity, signed on ___ 2014, which indicated a 
2014, commencement date. 
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Matter ofS-T- LLC 
Based on this evidence, the Beneficiary had been employed by the qualifying entity abroad for only 
11 months at the time he entered the United States as a nonimmigrant on 2015, and the 
Petitioner has not demonstrated that he meets the one year employment abroad requirement set forth 
in the statute and regulations . Although it appears he remained on the foreign entity's payroll for a 
period of at least 12 months, the period of time he spent in the United States is not considered 
qualifying employment abroad. 
Accordingly, we are remanding this matter so that the Director can review the Beneficiary's period 
of e·mployment abroad. The Director may request any additional evidence deemed warranted and 
allow the Petitioner to submit such evidence within a reasonable period oftime. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Maller ofS-T- LLC, ID# 1270251 (AAO July 27, 2018) 
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