remanded EB-1C Case: Manufacturing

MATTER OF S-P-(US) INC. 
Non-Precident Decision of the 
Administrative Appeals Office 
DATE: DEC. I 1, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITlON: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a manufacturer and supplier of purnping systems, seeks to permanently employ the 
Beneficiary as its "Repair Engineer 11" 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 denied the petition, concluding that the Petitioner did 
not establish, as required, that the Beneficiary's employment abroad was in a managerial or 
executive capacity. 
On appeal, the Petitioner disputes the Director's finding, contending that the Beneficiary was 
employed abroad in a managerial capacity. 
Upon de novo review, we find that the record lacks sufficient evidence to establish that the 
Beneficiary's claimed employment abroad in a managerial capacity lasted for the statutorily required 
time period of one year out of the three years that preceded his entry to the United States to work for 
the Petitioner. As the Director did not adequately address whether the Petitioner met this threshold 
requirement, we will not consider whether the Beneficiary's employment abroad was in a managerial 
capacity. Rather, we will remand this matter for further consideration. 
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)(I )(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 
employed abroad in a managerial or executive capacity for at least one year in the ttJree years 
Maller of S-P-(US) Inc. 
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 fi.)r at least one year. See 8 C.F.R. * 204.5(i)(3). 
The clear language of the statute indicates that the relevant three-year period to be used as a 
reference point in determining whether the beneficiary had one year of managerial or executive 
employment abroad is "preceding the time of the alien's application for classification and admission 
into the United States under this subparagraph." Section 203(b)(l )(C) of the Act. 
II. BASIS FOR REMAND 
As previously noted, we find that the Petitioner has not provided sufficient evidence establishing that 
the Beneficiary was employed abroad for one year out of the three years prior to entering the United 
States to work for the U.S. entity. 
In the initial supporting cover letter, the Petitioner stated that the Beneficiary was employed abroad 
in the position of customer service manager from 2009 to 201 O; although it provided evidence of the 
Beneficiary's entry to the United States as an L-1 B nonimmigrant on November I 9, 2010, it did not 
provide the specific start date for this position. The Petitioner also provided the Beneficiary's 
Canadian Form T4 wage statements showing that he was compensated by the foreign entity in 2009 
and 2010, when it is claimed that he worked abroad in a managerial capacity. 1-lov.•ever, the record 
also contains the Form T4 for 2011 showing that the foreign entity continued to pay wages to the 
Beneficiary beyond the time period of his entry into the United States in November 2010 to assume 
a position with the petitioning entity. As such, the Beneficiary's wage records alone are not 
sufficient to establish the time period of the Beneficiary's employment abroad. We note that the 
Petitioner did not provide evidence specifically identifying the Beneficiary's dates of employment 
abroad in the position of customer service manager. We further note that in the Fonn G-325A, 
Biographic Information, the Beneficiary stated that he was employed with the foreign entity as a 
repair engineer from July 2007 to January 201 land that his employment with the U.S. Petitioner 
commenced in February 2011. This information is inconsistent \vith the Petitioner's claim that the 
Beneficiary assumed the position of customer service manager in 2009 and started working for the 
Petitioner as a repair coordinator in 2010. The Petitioner must resolve this discrepancy in the record 
with independent, objective evidence pointing to where the truth lies. Malter <~{ /-lo, 19 I&N Dec. 
582, 591-92 (BIA 1988). . 
In addition, the Petitioner must establish that the aggregate number of days the Beneficiary worked 
for the foreign entity as a customer service manager, within the three-year periqd that preceded his 
U.S. entry in November 2010 in L-IB status, totaled at least one year. The Beneficiary's 
arrival/departure record, which we obtained from the U.S. Customs and Border Protection and which 
is outside this record, indicates that the Beneficiary departed Canada multiple times in 2009 and 
2010. Although these absences may not be interruptive of the Beneficiary's employment abroad, 
they will not count towards his required one year of foreign employment in a managerial capacity. 
See 8 C.F.R. § 214.2(l)(l)(ii)(A). Given that the Petitioner has not adequately established the 
specific dates of the Beneficiary's claimed managerial employment abroad, we cannot determine 
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i'vlaller of S-P-(US) Inc. 
whether his brief absences precluded him from meeting the 1-in-3 statutory requirement. See section 
203(b)(l )(C) of th_e Act. Until and unless the Petitioner establishes that the Beneficiary met the 
fundamental requirement of having the requisite time period of employment abroad as a customer 
service manager, 1 we need not move forward with a discussion of whether the duties he performed 
in that position were primarily of a managerial nature. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Maller o.fS-P-(US) Inc., ID# 1797077 (AAO Dec. 11, 2018) 
1 Although the Petitioner and Beneficiary both claim that the Beneficiary's employment with the foreign affiliate 
commenced prior to the date he assumed his position as customer service manager, the Petitioner does not claim that the 
position the Beneficiary held prior to that of customer service manager was in a managerial capacity. Therefore, any 
position that the Beneficiary held with the foreign entity prior to assuming the position of customer service manager \viii 
not be addressed because it is not relevant for the purpose of establishing eligibility in this matter. 
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