remanded EB-1C Case: Promotional Products

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T&BP-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 17,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETIT! ON FOR ALIEN WORKER 
The Petitioner, a supplier of promotional products, seeks to permanently employ the Beneficiary as 
its president of sales and marketing under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(I)(C), 8 U.S.C. § 1153(b)(I)(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 it would employ the Beneficiary in a managerial or executive capacity as 
defined at section IOI(a)(44)(A) and (B),ofthe Act, 8 U.S.C. § IIOI(a)(44)(A) and (B). 
On appeal, the Petitioner submits additional evidence and asserts that the Director wholly 
overlooked much of its evidence, did not consider the Beneficiary's job duties, and appeared to be 
based, in part, on clear bias and misperceptions about the nature of the Petitioner's business. 
Upon de novo review of the record, we will withdraw the Director's decision and remand the matter 
lor further proceedings consistent with our discussion below. 
l. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling of the 
petition, has been employed outside the United States lor 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 tor Alien Worker, must include a statement from an authorized 
otticial of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity lor at least one year in the three years 
preceding the tiling of the petition, that the beneficiary is coming to work in the United States for the 
same employer or a subsidiary or attiliate of the foreign employer, and that the prospective U.S. 
employer has been doing business tor at least one year. See 8 C.F.R. § 204.5(j)(3). 
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II. ANAL YS lS 
When den ying a petition, a d irector h as an aftirm ative dut y to ex plain t he spec iti c reaso ns for the 
denial; thi s duty include s inform ing a petiti oner why the evi dence did n ot satisfy its burde n o f proof 
pursua nt to s ection 291 of the Ac t. 8 C.F.R. § 103.3(a)( l )( i); see also ,\1/at!er qj'M-P-, 20 I&N Dec . 
786 ( BIA 1994) (!inding that a dec ision must full y explain the reasons fo r d eny ing a motion to allow 
the respondent a meaningful opp ortunit y to challenge the determinati on on appea l). 
Upo n rev iew, we find that the Director's decis ion contains a n umber of errors. lt also appears that 
the Director ove rlooked ev ide nce that was materia l to th e Beneficiary's el igibility. As a res ult, the 
recor d d oes not support the D irector's spec i fie reaso ns for the denial, and the Petitioner was not 
prov ided with a meaningful analys is of its ev idence to serv e as a basis for its appeal. · 
The 
Director c ited three reaso ns fo r denia l: (I) the Petiti oner did not submi t its fede ral tax retu rn for 
20 16, as requested; (2) the Petitione r had only two empl oyees and did not show that the posi tions 
subordinate to the Benefi ciary a re manager ial or professional positions; and (3) the Peti tione r "did 
not estab lish that the [BJenefi ciary's U.S. pos ition is in complia nce with the regu latory requ irements 
fo r exec utive or manageri al ca pac ity." Th e Dire ctor concl uded that "the evidence su bmitted 
indi cate[sJ that your compan y is a s mall shop peddlin g promotion al items and trink ets rath er than a 
suffic iently staffed multin ational that i s able to meet the E 13 requi rements." 
Upo n rev iew, we not e that the Petitio ner did in fac t submit its 2016 federal tax retu rn and it app ears 
that the Director simpl y ove rlooked it. While the Petiti oner has consis tently stated that it has only 
two employees, it has co nsis tentl y cla imed and doc umen ted that it rece ives operational suppo rt from 
its to reign parent comp any in China and a foreign affiliate in The Director did not 
add ress th is claim or the substan tial ev idence that t he Petitioner submitted to corrobo rate it. The 
Director also did n ot ad dress the Bene ficiary 's pos ition desc ription when concl uding that the 
position is not in compl iance with th e regulatory requir ements for this class ification. 
Finally, we agree w ith the Petitione r's contenti on that the Director's find ing that the Pet itioner is a 
"small sho p" that is " pedd ling trink ets" and not a qualifying mu ltinatio nal enti ty re tlec ts a 
mispe rce ption on the part o f the se rvice cen ter. The Director must artic ulate so me ratio nal basis for 
finding a petitioner's staff or structu re to be unr easonable. See sec tion 10 l (a)( 44 )(C) of the Act. 
T he fact that a petiti o ner i s a sma ll business or engaged in a particula r ind ustry wi ll not pre clud e the 
Beneliciary from qual ifying as a multinational m anage r or exec utive. As noted, the Direc tor 
overlooked the wider qualifying orga nization which _incl udes a parent company and affiliate 
respons ible lor fu lfi lling several opera tional funct ions for the Pet itioner. 
As the Director's decis ion was not based on an obj ective and compl ete rev iew of all of the releva nt 
ev idence, the dec is ion will be withdr awn. 
However, the recor d as prese ntly constituted contains insuffi cien t evidence to s how that t he 
Bene tic iary is e ligible for t he benefi t so ught. The job descripti on tha t the Pet itioner subm itted at the 
time of tiling, \Vhile fa irly lengthy, is broad, and does not suffi cientl y descr ibe the Benefi ciary's 
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MallerofT&BP-, LLC 
actual day-to-day tasks within the context of the Petitioner's business. While U.S. Citizenship and 
Immigration Services (USCIS) will take into account duties performed by staff of the parent and 
aililiate entities abroad, the Petitioner must still describe the Beneficiary's duties in sufficient detail 
to support its claim that they are primarily managerial or executive in nature. 
With respect to the Petitioner's staffing we note that the company has consistently stated that it has 
an opening tor a director of marketing position. The record shows that this position was held by a 
full-time employee prior to the Beneficiary's transfer to the United States, but has remained 
unstatfed since 2014. The Petitioner has not established how the Beneficiary is relieved from 
performing the non-managerial, customer-facing duties assigned to this position. Its claim, made for 
the tirst time on appeal, that a lower level employee has assumed all duties of the position in 
addition to his own, is not adequately supported in the record. Although the Petitioner may rely on 
statf from abroad, it must still show how the Beneficiary's sole subordinate employee is able to 
pertorm almost all non-qualifying duties that must be handled from the United States on a day-to­
day basis. 
We are remanding this matter so that the Director can properly make the initial determination on the 
issue of the Beneficiary's employment in a managerial or executive capacity after a thorough review 
and analysis of the Petitioner's evidence. 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, 
which, if adverse, shall be certified to us for review. 
Cite as Matter ofT &BP-. LLC. ID# 1165 73 7 (AAO Apr. 17, 20 18) 
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