remanded EB-1C Case: Mining Equipment

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-P-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 31,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a mining equipment sales and distribution business, seeks to permanently employ the 
Beneficiary as its chief executive officer under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(1)(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 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 
or executive capacity. 
On appeal, the Petitioner asserts that the Director did not properly consider the totality of the 
evidence and avers that it demonstrated by a preponderance of the evidence that the position meets 
the definition of executive capacity as defined in the regulations. 
Upon de novo review of the record, we find that the Director did not offer an adequate analysis of 
the evidence submitted so that the Petitioner was afforded a fair opportunity to contest the decision 
and to allow us an opportunity for meaningful appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see 
also Matter of M-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). Accordingly, we will withdraw the Director's decision and remand the 
matter for further proceedings consistent with our discussion below. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(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 I-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 
Matter of A-P-, LLC 
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). 
II. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
Although we will withdraw the Director's decision, the record as presently constituted is insufficient 
to establish that the Beneficiary would be employed in an executive capacity as defined at section 
101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). The lengthy description of the Beneficiary's 
proposed duties, and the estimated amount of time he would spend on those duties, is not sufficiently 
detailed to establish that the Beneficiary will primarily perform executive duties. For example, the 
Beneficiary's involvement in penetrating new markets, researching market conditions, securing new 
clients, expanding suppliers and products, and refining the sales strategy signifies the Beneficiary's 
performance of sales, marketing and procurement tasks, not directing the management of those tasks. 
Further, the record does not include probative evidence that the Petitioner employed sufficient staff, 
when the petition was filed, to carry out routine operational tasks and thereby relieve the Beneficiary 
from performing non-qualifying duties. Although the Petitioner asserts that it employed four 
individuals at the time of filing, the "employee details" document it provided includes evidence of 
only two employees, in addition to the Beneficiary, when the petition was filed.' The record does 
not include federal and state employer's quarterly tax returns for the first quarter of 2016, and 
individuals hired subsequent to the date the petition was tiled do not establish eligibility. The 
Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time ofthe filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
If the Petitioner employed only two employees other than the Beneficiary, this would call into 
question several of the duties included in his job description, which states that he will oversee 
company functions through subordinate staff members who were not actually working for the 
company at the time of filing. For example, the job description refers to the Beneficiary's oversight 
of a branch manager, warehouse staff, sales manager, account executives, and the "supply chain 
organization." 
Although the Petitioner did not submit sufficient evidence to meet its burden of establishing that the 
Beneficiary will be employed in a managerial or executive capacity, the Director's decision did not 
1 The Beneficiary's spouse and 20 percent owner of the Petitioner is identified as the Petitioner's ·'financial manager and 
accounting." The Petitioner claims that she earns 20 percent of the Petitioner's profit as the 20 percent partner. 
However, the record does not include evidence of the Petitioner's 2016 earnings or other supporting evidence showing 
that this individual was actually employed, performed work for the Petitioner, and was paid a salary or a share of the 
profits in 20 16. 
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Matter of A-P-, LLC 
adequately analyze the facts of the matter and apply the law. When denying a petition, the 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). As the Director did not satisfy this condition, we will withdraw the 
Director's decision and remand the matter for entry of a new decision. 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 further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofA-P-, LLC, ID# 681530 (AAO Oct. 31, 2017) 
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