remanded EB-1C Case: Metal Trading And Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-M-I-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 18, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a metal trading and construction company, seeks to permanently employ the 
Beneficiary as its director of business development 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 an executive or 
managerial capacity. 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in the United States in a managerial 
capacity and that the Petitioner had the ability to pay the Beneficiary's proffered wage as of the date 
this petition was filed. 
On appeal, the Petitioner disputes the Director's findings, contending that the Beneficiary will assume 
the role of a function manager in her proposed U.S. position. It also contends that its combined net 
income and net assets for 2016 and 2017 establish that it had the ability to pay the proffered wage. 
Upon de nova review, we find that the record lacks sufficient evidence to establish that the Petitioner 
is a U.S. employer eligible to file this petition on behalf of the Beneficiary. As the Director did not 
address this threshold requirement, we will not consider whether the Beneficiary's prospective 
employment and the Petitioner eligibility to pay the Beneficiary's proffered wage meet eligibility 
requirements. 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)(l)(C) of the Act. 
The Form I-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 
Matter of S-M-I-
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). 
II. BASIS FOR REMAND 
As previously noted, we find that the Petitioner- in this instance, the Beneficiary's foreign employer 
- was not eligible to file this petition on the Beneficiary's behalf. The express language in the 
regulations specifies that only the "United States employer" may file a Form I-140 to classify an alien 
as a multinational manager or executive. There is no similar provision that allows the foreign entity 
to file this petition on the Beneficiary's behalf. As the instant petition was filed by the Beneficiary's 
foreign employer, rather than the prospective U.S. employer, the Petitioner has not met a basic 
threshold requirement. Until and unless the Petitioner establishes that it has met this fundamental 
criterion, we need not move forward with a discussion of whether the Beneficiary would be employed 
in a managerial capacity and whether the prospective U.S. employer had the ability to pay the 
Beneficiary's proffered wage at the time this petition was filed. 
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 Matter of S-M-I-, ID# 4251498 (AAO July 18, 2019) 
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