remanded EB-1C Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-G-U.S., INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 2, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a direct marketing company, seeks to permanently employ the Beneficiary as its 
president and marketing director under the multinational executive or manager immigrant 
classification. See Immigration and Nationality Act (the Act) § 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 an executive or managerial capacity. 
The Director, Nebraska Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that the Beneficiary will be employed in a qualifying managerial 
or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director overlooked evidence in the record and relied on erroneous statements of fact 
and law. 
Upon de novo review, we will withdraw the Director's decision and remand the petition to the 
Director, Nebraska Service Center for entry of a new decision. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. - Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain multinational executives and managers. An alien is described in this 
subparagraph ifthe alien, in the 3 years preceding the time of the alien's application for 
classification and admission into the United States under this subparagraph, has been 
employed for at least 1 year by a firm or corporation or other legal entity or an affiliate 
or subsidiary thereof and the alien seeks to enter the United States in order to continue to 
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Matter of E-G-US. , Inc. 
render services to the same employer or to a subsidiary or affiliate thereof in a capacity 
that is managerial or executive. 
A United States employer may file Form I-140 to classify a beneficiary under section 203(b)(l)(C) of 
the Act as a multinational executive or manager. 
II. EMPLOYMENT IN A QUALIFYING MANAGERIAL OR EXECUTIVE CAP A CITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a qualifying managerial or executive capacity as defined at section 
101(a)(44) ofthe Act. 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity . 
The statement must clearly describe the duties to be performed by the Beneficiary. 
A. Facts 
The Petitioner filed the Form I-140 on September 9, 2014, and claimed that it employed 14 
employees. The Petitioner submitted a letter dated August 26, 2014, from the 
Petitioner's chief operating officer. explained that the Petitioner and its U.K. majority 
owner, perform sales and marketing work outsourced by client companies 
(generally non-profit organizations). The Petitioner's minority owner, "focuses on 
providing the operations suppmt relating to the overall sales and marketing activities" performed by the 
Petitioner and its parent. 
With respect to the Beneficiary's role as President/Marketing Director at the petitioning company, 
stated that the Beneficiary "exercises broad discretion over the day-to-day operations of his 
position, in overseeing the establishment and implementation of company goals and policies, and 
exercises wide latitude in discretionary decision-making, including budgetary matters." She further 
stated that the Beneficiary's "direct subordinates are themselves managers, responsible for other, 
subordinate employees," as shown in the Petitioner's organizational chart: 
The Beneficiary 
President/Marketing Director 
Administrator -----1 
Trainee (Assistant) Manager T earn Leader 
I 
2 Leaders 
I 
4 Field Representatives 
2 
Team Leader 
I 
3 Field Representatives 
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Matter of E-G-US., Inc. 
The Petitioner asserted that "is just beginning to develop his team," but "maintains authority 
over and oversees the sales force" on other branches of the chart. also provided a position 
description for the Beneficiary which explained how he allocates his time among 12 duties in the areas 
of sales training and development, strategy and development, business administration, and human 
resources and compliance. 
The Director issued a request for evidence (RFE) on January 30, 2015. The Director stated that the 
Petitioner had not submitted enough information to show that the Beneficiary's intended position is 
in a qualifying managerial or executive capacity. The Director instructed the Petitioner to specify 
the daily tasks performed by the Beneficiary and his subordinates. 
In response, in a letter dated April 20, 2015, 
in her initial letter and stated: 
repeated the position description provided 
[The Beneficiary] is responsible for working directly with the to 
contract with new clients to provide sales and marketing services. He determines [the 
Petitioner's] company policies and procedures and provides overall direction to the 
company in terms of sales goals, sales techniques, management style and campaign 
planning and execution. 
[The Beneficiary] directs the management of the entire company, which includes the 
financial, sales, human resources and operations components. He has the authority to 
make personnel decisions regarding all of the company's employees, including hiring, 
firing and performance reviews. In so doing, he exercises discretionary authority 
over the activities of these employees. He develops the strategic plans to advance the 
company's mission and objectives and oversees company operations to ensure 
efficiency, quality, service and management of human resources. 
The Director denied the petition on June 5, 2015, concluding that the Petitioner had not established 
that the Beneficiary would serve in a qualifying managerial or executive capacity. The Director 
stated that the Petitioner had not adequately "identified the non-qualifying, operational or 
administrative tasks" performed at the petitioning company, or the employees who would perform 
those tasks. The Director concluded that the Beneficiary's subordinates "are employed in non­
professional sales positions." The Director also stated that "supervision or management of 
independent contractors does not permit a beneficiary to be classified as a managerial employee." 
On appeal, the Petitioner asserts that it had previously submitted the required evidence and 
information, and that the Director imposed additional requirements not found in the statute or 
regulations. 
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Matter of E-G-US. , Inc. 
B. Analysis 
Upon review, and for the reasons stated below, we will withdraw the Director's stated basis for 
denial. 
The record supports the Petitioner's assertion that the Director was mistaken about omissions in the 
record. In the denial notice, the Director stated that the Petitioner did not submit an organizational 
chart showing the Beneficiary 's place in the company and a list of employees specifying whether 
each worked full-time or part-time. The Petitioner, however, submitted those materials. The 
organizational chart is in the Petitioner's initial submission, and letter in the RFE 
response included the list of employees with the required information. The Petitioner is also correct 
that it may delegate operational tasks to contractors, provided the Beneficiary has managerial 
oversight over those contractors. 
The Petitioner emphasizes on 
appeal that it had not claimed that the Beneficiary's subordinates were 
professionals. Rather, the Petitioner asserts that they are supervisors, and the Beneficiary 's 
supervision of supervisors is a managerial function as defined at 8 C.F.R. § 204.5(j)(2). The first­
line sales personnel are not the Beneficiary 's immediate subordinates. 
In a letter dated July 6, 2015, the Beneficiary, in his capacity as president of the petitioning 
company, states that staff "provides administrative services to the company," which relieves 
the Beneficiary of having to perform those non-qualifying administrative functions. The Beneficiary 
states that the Petitioner's field representatives and leaders perform non-qualifying duties such as 
interaction with customers and donors, allowing the Beneficiary "to perform exclusively qualifying 
tasks." The Beneficiary asserts that the assistant (trainee) manager and team leaders are supervisors, 
and that their subordinate field representatives are all full-time employees. 
We agree with the Petitioner that the denial notice rested, in large part, on erroneous conclusions of fact 
and law, and therefore cannot stand. We will withdraw that ground for denial and remand the matter to 
the Director. The Director must make a new determination on this issue, taking the above information 
into account. 
III. BEYOND THE DECISION OF THE DIRECTOR 
Although not addressed by the Director, the record as presently constituted also does not contain 
sufficient evidence of the Petitioner's ability to pay the Beneficiary's proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) reads as follows: 
Ability of prosp ective employer to pay wage. Any petitiOn filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
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Matter of E-G-US. , Inc. 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. In a case where 
the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. In appropriate cases, 
additional evidence, such as profit/loss statements, bank account records, or personnel 
records, may be submitted by the petitioner or requested by the Service. 
The Petitioner states that it will pay the Beneficiary $75,000 per year. Part 5, lines 2d and 2e of 
Form I-140 instructed the Petitioner to list its gross and net annual income. The Petitioner did not 
provide the required information, instead referring to supporting letter. , in 
tum, did not state the Petitioner's gross or net annual income. Instead, she stated that the Petitioner 
"earned approximately $1,000,
000 in sales revenue thus far in 2014 and has paid more than 
$164,063 in payroll in 2014." 
The Petitioner has not submitted copies of annual reports, federal tax returns, or audited financial 
statements as required by 8 C.F.R. § 204.5(g)(2). The Petitioner has fewer than 100 employees, and 
therefore cannot simply assert its ability to pay the Beneficiary 's proffered wage. Without this 
required evidence, the petition cannot be approved. 
The Petitioner submitted copies of IRS Forms 941, Employer's Quarterly Federal Tax Returns, but 
these are not income tax returns. Rather, they report wages paid to employees, and taxes withheld 
from those payments . They do not provide a complete picture of the Petitioner's finances, including 
its income and expenses. Copies of the Petitioner 's bank statements, likewise, cannot take the place 
of the documents required by 8 C.F.R. § 204.5(g)(2). 
The appeal includes copies of 12 IRS Forms W-2, Wage and Tax Statements, issued to the 
Petitioner's employees for 2014. The names on the forms correspond to the subordinates identified 
on the Petitioner's organizational chart, but the Beneficiary's Form W-2 was not included. 
had stated that all of the Beneficiary's subordinates are full-time employees who earn a 
"Basic Rate" of $18,200 per year, plus commissions, but nine of the 12 IRS Forms W-2 show 
amounts below $16,000. Of those, seven show less than $10, 000, and one shows only $250. 
stated that the Beneficiary "is paid a base annual salary of $75,000 per year," but did not 
provide evidence, such as the Beneficiary 's IRS Form W-2, to support this statement. 
did not state that the Beneficiary will begin earning that amount at some future time; she specified, 
using the present tense, that he already "is paid" that amount. This evidence raises questions 
regarding the Petitioner 's financial status at the time of filing. 
We find that the Petitioner has not provided sufficient evidence to establish its ability to pay the 
Beneficiary's proffered wage. Accordingly, on remand, the Director should issue a new request for 
evidence addressing this issue, as well as any additional evidence that may be needed to reach a new 
determination on the issue of the Beneficiary 's employment in a managerial or executive capacity. 
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Matter of E-G-US., Inc. 
IV. CONCLUSION 
The Director's decision will be withdrawn and the matter remanded for further consideration and 
action. In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 
Dec. 127, 128 (BIA 2013). This burden remains on the Petitioner. 
ORDER: The decision of the Director, Nebraska Service Center, is withdrawn. The matter is 
remanded to the Director, Nebraska Service Center, for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofE-G-US., Inc., ID# 15808 (AAO Mar. 2, 2016)