remanded EB-1C Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER Of' H- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY8,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
'PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a restaurant operator, seeks to permanently employ the Beneficiary as its vice 
president/director 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)(I)(C). This classification allows a U.S. employer to permanently transfer a qualilled 
foreign employee to the United States to work in a managerial or executive capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the Beneficiary's claimed foreign employer continues to conduct 
business in India and therefore did not show that it has a qualifying relationship with the foreign 
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ent1ty. 
On appeal, the Petitioner submits additional evidence and emphasizes that the Director's decision: 
(I) did not take into account the evidence the Petitioner submitted in response to a notice of intent to 
deny (NOlO): and, (2) was improperly based, in part, on derogatory evidence from outside the 
record that was not mentioned in the NOlO. 
Upon de novo review of the record, we will withdraw the Director's decision and remand the matter 
lor entry of a new decision. 
I. LEGAL FRAMEWORK 
Section 203(b )(I )(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 tor 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 aftiliate. 
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The Director stated that an overseas investigation "was able to confirm fraud," but did not enter a finding of fraud or 
willful misrepresentation of a material fact. Instead, the Director·concluded that the evidence submitted with respect to 
the Beneticiary·s foreign employer is of questionable reliability. 
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Maller of H- inc. 
A Unit ed States employer may lile Form I-140 , Immigrant Petiti on for Alien Worker, to class ify a 
beneficiar y under section 203(b)(l )(C) of the Act as a multinational execut ive or manager. The petition 
must include a statement from an author ized ot1icial of the petitioning United States employer which 
demonstrat es that the bene ficiary has been empl oyed abroad in a manager ial or exec utive capaci ty for at 
least one year in the three years preceding the filing of the petition, that the beneficiary is comi ng to 
work in the United States for the same employer or a subsidiary or affiliate .of the foreig n employer, and 
that the prospective U.S. emp loyer has been doing busines s for at least one year. See 8 C. F.R. 
§ 204.5 (j)(3). 
II. ANA LYSIS 
The Peti tio ner argues on appeal that the Director's decision did not meaningfull y address its 
respon se to the NOlO, and that the decision introduced derogatory inform ation from outside the 
record of proceeding without giving the Petiti oner notice that the dec ision may be based, in part, on 
such informatio n. 
An officer must full y explain the reaso ns for den ying a v isa petit ion in order to allow the Petitioner a 
fair opport unity to contest the decis ion and to a llow us an oppo11un ity for meaningfu l appella te 
review. See 8 C. F.R. § 1 03.3(a)(l) (i); see also Matter of M-P-, 20 l&N Dec. 786 (B IA 1994) 
(findin g that a dec ision must fully exp lain the rea sons for denying a motio n to allow the respondent a 
meaningful opportunity to cha llenge the determination on appeal). Because · it did not add ress the 
evidence subm itted in respon se to the NO lO, the Director's decision did not fully explain the reason s 
for den ying the petition or why the Peti tioner ' s evi dence was insuftic ient to overcome the issues 
raised in the NO ID. 
Further , t he Director is obligated to provide notic e of any derogatory information that is discove red 
outside of the record of proceedings, and to mak e that dero gatory information part of the record 
along with any rebuttal provided by the Petiti oner. 8 C.F .R. § 103.2 (b)(l6)( i). Here, the Director 
did not give the Petitioner proper notice of all derogatory infor mat ion that may impact the decis ion 
prior to issuing it, and the fai lure to do so con stitute s error. 
Accordingly , the Direct or's decis ion will be wit hdrawn. As the reco rd does not estab lish the 
Petitioner 's or Beneficiary' s eligibility for the benefit sought , we will remand the matte r to the 
Director for entry of a new decision. If that deci sion is going to be based on derogat ory informat ion 
obtained from outside the record of which the Petitione r is not aware, the Director must issue a nevl 
notice of intent to deny. · 
The Director's decision was based primaril y on the find ings of an ove rseas site inves tigation which 
led to a determ ination that the Beneficiary 's claimed forei gn employe r, 
is no longer doing business and that the evidence th e Petition er submitt ed regarding that 
compan y, its starting, and its opera tions, was not true and correct. The Petitioner has sub mitted 
stateme nts and documentar y evidence in respon se to the conclusions drawn from the site visit which 
the Direct or did not addre ss in the denial notice. 
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:'v!atter of!-!- file. 
In addition, thet·c are other inconsistencies and deticiencies 1n the record related to the foreign 
entity's opcrmions and the 13eneticiary's employment abroad. 
With respect to ;; physical premises, the Petitioner maintains that paid rent to its 
landlord, , according to the terms of a submitted lease agreement, from September 20 II 
until October 2014. The lease agreement indicates an annuat rental rate of 15,000 Indian rupees 
(!NR) . The Petitioner submitted copies of internally-generated financial statements for the 
fiscal years ended in March 2012 through March 2015, in which it reported annual rent expenses 
between 35,000 and 60.000 INR. The Petitioner shoutd explain the discrepancy between the rent 
required by the lease agreement and the variable amounts that claims it actually paid. 
In addition, \VC note that almost all of the documentation submitted to demonstrate former 
and ongoing business operations was intcmally generated, including the aforementioned financial 
statements, as \veil as payroll registers and contracts. The Director should instruct the Petitioner to 
submit independent, objective evidence of the company's activities, such as complete 
Indian tax returns dating back to its initial year of operations with all required statements and 
attachments. Additional evidence may include copies of bank statements, invoices issued 
to clients, evidence of payments to contracted "analysts," and evidence of receipt of payments from 
clients dating from 2011 to the present. 
Further, even if the Petitioner had submitted sufficient evidence to show that the foreign entity has 
been and w·i!J continue to be doing business in India, the evidence of record is insufficient to 
establish that employed the Beneficiary in a managerial or executive capacity for severat 
reasons. 
First, the record does not contain evidence showing the staffing and structure of at the time 
the Bcneliciary worked there. The organizational chart submitted at the time of filing appears lo 
show stafli.ng as of 2016. However, the Petitioner must demonstrate that , was able 
to support the Bcneliciary in a managerial or executive position when he worked there beginning in 
September 20 I l. Although the Petitioner indicates that the Beneficiary remained with until 
April 2014, U.S. Citizenship and Immigration Services (USC IS) records show that he spent most of 
2013 in the United States after. making an entry in April of that year. Accordingly, the Petitioner 
shou lei be instructed to submit independent and objective evidence shO\vi ng the staffing of 
during the period from September 2011 through April 2013. Internally prepared payroll records are 
not sufficient to support the company's claimed staffing levels. Further, the Petitioner should submit 
additional evidence of the Bencticiary's employment \Vith including his Indian income tax 
returns and evidence of salary payments made to his bank account between 20 I 1 and 2013. 
Beyond establishing the Beneticiary's dates of employment and receipt of salary payments, the 
Petitioner wit! also need to provide claritication regarding his job duties· as vice president. 
The Petitioner stated that he supervised a project manager, project coordinator and six analysts, 
while overseeing the company's day to day operations and growth plans . 
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Ma((er nf H- Inc. 
The Beneficiary's resume indicates that he concurrently held positions with two different companies 
between September 2011 and March 2013. He states that his role with involved managing 
clients in India and Latin America, promoting trade between the two areas, providing industry 
information about Latin American countries to Indian clients, traveling with clients to Latin 
American cities, providing market intelligence, etc., but does not mention supervision of any 
employees. Further the Beneficiary indicates that he also w orked as a Director for 
from 2009 unti I March 2013, where he led a team of more than 60 
employees. The Petitioner will need to submit further evidence of his duties, explain his concurrent 
employment, and provide objective evidence of the source(s) of his income during. this period. 
For the reasons discussed, the Director did not provide the Petitioner with proper notice of 
derogatory infom1ation or a full explanation of the reasons for denial .based on a complete review of 
the Petitioner' s evidence . ' 
Further, the Petitioner has not established that the Beneficiary was employed abroad in a managerial 
or executive capacity, nor has it submitted sullicient independent and objective evidence in support 
of its claims regarding the foreign employer's ongoing operation s. Accordingly, we are remanding 
this matter so that the Director can review the previously submitted evidence pertaining to the 
foreign employer and the separate issue of the Beneficiary's employment capac ity abroad. The 
Director should request evidence or issue a new notice of intent to deny in accordance with the 
foregoing discussion and allow the Petitioner to submit such evidence within a reasonable period of 
time. 
ORDER: The matter is remanded for the entry of a new decision consistent with the foregoing 
analysis, which, if adverse, shall be certified to us for review. 
Cite as Mafler of H-lnc. , I D# 122 I 883 (AAO May 8, 20 18) 
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