remanded EB-1C Case: Financial Services

U.S. Citizenship 
and Inunigration 
Services 
MATTER OF S-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR 19, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a financial/payment service provider, seeks to permanently employ the Beneficiary as 
its executive vice president under the first preference immigrant classification for multinational 
executives or managers. 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, denied the petition, concluding that the Petitioner did not 
establish, as required, that the Beneficiary was employed by a qualifying entity abroad in a managerial 
or executive capacity for at least one year in the three years preceding his entry to the United States to 
work for the Petitioner as a nonimmigrant. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erroneously 
focused solely on the source of the Beneficiary's salary in determining that he did not have a full 
year of employment abroad with the Petitioner's United Kingdom parent company. The Petitioner 
further contends that the Director "disregarded legal precedent from the U.S. Supreme Court, Board 
of Immigration Appeals, and [U.S. Citizenship and Immigration Services (USCIS)] guidance 
establishing that it is the 'right of control' that ultimately determines whether someone is an 
employee." 
Upon de nova review of the record, we will withdraw the Director's decision and remand the matter 
for entry of a new decision consistent with our discussion below. 
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 )(1 )(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 States employer which demonstrates that the beneficiary has been 
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Matter ofS-T-Inc. 
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. § 204.5G)(3). 
11. EMPLOYMENT ABROAD 
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. § 204.5G)(3)(i)(B). 
Here, the Beneficiary entered the United States to work for the Petitioner as an L-lA nonimmigrant 
in November 2014. Accordingly, the Petitioner must establish that he was employed by a qualifying 
entity abroad, in a managerial or executive capacity, for at least one year between November 2011 
and November 2014. 
The Petitioner claims that the Beneficiary was employed by an unrelated United Kingdom entity 
beginning in 2005, and officially joined its parent company as a payroll 
employee on April 1, 2014. The Petitioner states that between April 1, 2013, and March 31, 2014, 
although not officially on the payroll, the Beneficiary worked for its parent company pursuant to a 
secondment agreement. During this time, the Petitioner claims the Beneficiary was on 
payroll, but he was an employee of its parent company under common law rules of agency. 
In the denial decision, the Director emphasized that the Beneficiary's "actual employer" through 
March 31, 2014 was As such, the Director determined that the Beneficiary did not have 
a full year of employment with a qualifying entity prior to making his initial entry to the United 
States as an L-lA nonimmigrant in November 2014. The Director acknowledged the Petitioner's 
argument that the Beneficiary was an employee of its parent company beginning on April 1, 2013, 
under the common law rules of agency, based on its parent company's right to control the manner 
and means of his work during this period of time. However, the Director did not fully address the 
evidence the Petitioner submitted in support of its claims, or provide adequate reasons for dismissing 
the Petitioner's argument based on the common law. 
When denying a petition, a director has an affirmative duty to explain the specific reasons for the 
denial; this duty includes informing a petitioner why the evidence did not satisfy its burden of proof 
pursuant to section 291 of the Act. 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). 
Because the Director did not fully consider the Petitioner 's evidence or adequately address its claim 
that the Beneficiary was, in effect, an employee of its foreign parent for one year prior to April 1, 
2014, the Director 's decision is withdrawn. 
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Matter ofS-T-Inc. 
However, while we do not discount the possibility that the Beneficiary was an employee of the 
Petitioner's group prior to April 2014 under the common law agency doctrine, the record as 
presently constituted does not contain sufficient evidence to support such a finding. For example, 
the Petitioner did not submit copies of agreements made between its foreign parent and 
setting forth both companies' understanding of the terms of the Beneficiary's secondment, although 
the evidence provided indicates that there was a "Client Agreement Letter" in effect. Nor did it 
submit a copy of the Beneficiary's employment contract with which, according to the 
evidence already submitted, remained in effect with only minor changes during the period of the 
secondment. As noted, the Director's decision did not provide the Petitioner with notice of these and 
other deficiencies. 
We are remanding this matter so that the Director can properly make the initial determination on this 
issue after a thorough review and analysis of the Petitioner's evidence. The Director should request 
any additional evidence deemed warranted and allow the Petitioner to submit such evidence within a 
reasonable period of time. 
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 Matter ofS-T-Inc., ID# 2481278 (AAO Mar. 19, 2019) 
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