remanded EB-1C Case: Office Supplies Distribution

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. I, 2024 In Re: 24231759 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a distributor of office supplies, seeks to permanently employ the Beneficiary as its 
production director 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. 
§ 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 a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, citing several grounds of ineligibility. 
The Petitioner appealed the decision, and we remanded the matter in June 2020, concluding that the 
Petitioner had overcome most of the cited grounds for denial. We determined, however, that questions 
remained concerning the Beneficiary's intended employment in the United States. The Director 
denied the petition for the second time in June 2022, concluding that the record did not establish that 
the Petitioner will employ the Beneficiary in the United States in a managerial or executive capacity. 
The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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 
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). 
The Director determined that the Petitioner did not establish that it seeks to employ the Beneficiary in 
a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
The Beneficiary began working for the Petitioner's foreign parent company in 2014, first as a product 
manager and then as operations manager. The Beneficiary then transfimed to the United States in 
August 2016 as an L-lA nonimmigrant intracompany transferee, with frequent travel to Venezuela. 
The Petitioner filed the present immigrant petition in March 2018. In October 2018, while the 
immigrant petition was pending, the Petitioner filed a nonimmigrant petition seeking to extend the 
Beneficiaty' s L-1 A non immigrant status. The Director denied the extension petition in January 2019, 
determining that the Petitioner had not established that it sought to employ the Beneficiary in a 
managerial capacity. 
In the Form I-140 petition before us, the Petitioner stated that the Beneficiary "will oversee 8 
employees including 2 underlying managers." The Petitioner's organizational chati shows two 
supervisors, rather than managers, subordinate to the Beneficiary: a production supervisor, who 
oversees three packers; and a quality control (QC) supervisor, with authority over three QC operators. 
After the Director denied the petition on several grounds, we considered the Petitioner's appeal from 
that decision and concluded that the record does not support most of those grounds. We remanded the 
matter because of an apparent disparity in the Beneficiary's compensation. 
Specifically, the Petitioner indicated on the petition form that the Beneficiary's annual salary is 
$50,000, but tax and salary documents in the record, including IRS Form W-2, Wage and Tax 
Statement, show that the Petitioner paid the Beneficiary $36,000 in 2017. In our June 2020 remand 
notice, we noted that the production supervisor earned $83,330 in 2017, and two of the QC operators, 
said to be "two tiers below the Beneficiary," earned about $34,000 each. We concluded that these 
amounts cast doubt on "the claim that the Beneficiary heads one of five departments that comprise the 
U.S. entity." 
After we remanded the case, the Director issued a request for evidence (RFE), asking for "an 
explanation and any appropriate supporting documents which address these inconsistencies in the 
record" regarding the Beneficiary's compensation. 
In response, the Petitioner submitted evidence showing that, in 201 7, the Beneficiary had spent 116 
days in Venezuela because "her services were needed in both the U.S. and [the] foreign company ... 
and [she] was compensated in Venezuela for her work." Copies of pay receipts and the Beneficiary's 
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Venezuelan income tax return show that the foreign entity consistently paid the Beneficiary the same 
salary twice a month, without interruption, throughout 2017, whether she was in the United States or 
Venezuela. 
The Director denied the petition, stating that the Petitioner did not adequately explain why the foreign 
entity paid the Beneficiary for the entire year, and that, even taking the Beneficiary's travel into 
account, her U.S. remuneration was still substantially lower than that of the production supervisor. 
On appeal, the Petitioner asserts that the foreign company paid the Beneficiary continuously 
throughout 2017 because she "worked remotely" for that company even while she was in the United 
States. Peripheral discrepancies in the record, while of concern, do not outweigh the evidence in the 
record that establishes the Beneficiary's authority over two subordinate layers of employees, including 
two supervisors. The Beneficiary's documented absence from the United States, in combination with 
additional pay abroad, appears to be sufficient to explain her reduced U.S. salary payments in 2017. 
On balance, we conclude the Petitioner has established by a preponderance of the evidence that the 
Beneficiary's intended position in the United States is primarily managerial. 
However, another issue requires attention. The Petitioner must establish its ability to pay the 
Beneficiary's proffered wage of $50,000 per year from the time the priority date is established - in 
this instance, the petition's filing date - 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. 8 C.F.R. § 204.5(g)(2). 
The Petitioner paid the Beneficiary about 72% of the proffered wage in 2017, the year before the 
Petitioner filed the immigrant petition in March 2018. The Petitioner also submitted a copy of its 
income tax return for 2017. Because the Petitioner must establish ability to pay on a continuing basis, 
the Petitioner must submit required evidence of ability to pay the Petitioner's proffered wage for the 
years following 2017. We fmiher note that USCIS records show that the Petitioner has filed Form 
I-140 petitions for other beneficiaries in recent years, and therefore it must establish its ability to pay 
all those beneficiaries during the relevant years. 
Therefore, we will remand this case for the Director to request the submission of regulatory required 
evidence from the Petitioner, as specified in 8 C.F.R. § 204.5(g)(2), for the priority date year of 2018 
and subsequent years. The Director may also request any other evidence that may be deemed 
necessary to determine the Petitioner's eligibility for the requested immigration benefit. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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