remanded EB-1C Case: Semiconductor Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 8441458 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 06, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, an equipment manufacturer for semiconductor and solar cell processing , seeks to 
permanently employ the Beneficiary as its vice president under the fust 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 it had the ability to pay the Beneficiary's proffered wage at the time of 
filing. The Director also determined that because the Petitioner's qualifying relationship with the 
Beneficiary's foreign employer was formed less than one year prior to the date this petition was filed, 
the Beneficiary does not meet the foreign employment criteria, which requires at least one year of 
foreign employment with an entity that is related to the U.S. Petitioner as its parent, subsidiary, or 
affiliate. 
On appeal, the Petitioner offers new evidence addressing the ability to pay issue. The Petitioner also 
disputes the Director's conclusion concerning the qualifying relationship requirement , asserting that 
the Director incorrectly assessed the eligibility requirements pertaining to the qualifying relationship 
issue. 
Upon de nova review, we find that the Director incorrectly denied the petition on the qualifying 
relationship ground. In addition , the appeal includes new evidence addressing the Petitioner's ability 
to pay. Because the Director is the more appropriate party to consider the impact of the new evidence 
on the Petitioner's eligibility, we will remand the matter for further proceedings. 
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 
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. ANALYSIS 
In denying the petition, the Director determined that the Beneficiary's period of foreign employment 
did not start to accrue until the Petitioner formed a qualifying relationship with the Beneficiary's 
foreign employer. 1 In this case, a parent-subsidiary relationship was formed in December 201 7 and 
the instant petition was filed in October 2018, thus showing that the qualifying relationship existed for 
approximately ten months at the time of filing. Namely, the record shows that the Beneficiary's 
foreign employer acquired majority ownership and controlling interest in the Petitioner, thus becoming 
the parent in a parent-subsidiary relationship with the Petitioner. See 8 C.F.R. § 204.5(j)(2) (for 
definition of"subsidiary"). Although the Director acknowledged that a qualifying relationship existed 
at the time of filing, he concluded that because the relationship had not existed for at least one year 
prior to filing, the Beneficiary could not have accrued the required one year of employment abroad 
with a related entity. 
We find, however, that the Director's analysis incorrectly conflates two separate eligibility factors -
one of which requires the existence of a qualifying relationship, while the other pertains to the 
Beneficiary's employment abroad, focusing on the time period and duration of such employment and 
the existence of a qualifying relationship between the Petitioner and the foreign employer. 
Although we agree that the qualifying relationship had existed for less than one year at the time this 
petition was filed, this factor is not relevant for the purpose of determining the Petitioner's eligibility. 
The regulations that pertain to this immigrant petition are sufficiently clear in requiring that the 
Beneficiary's "prospective employer in the United States is the same employer or a subsidiary or 
affiliate of the firm or corporation or other legal entity" that employed the Beneficiary abroad. 8 C.F.R. 
§ 204.5(j)(3)(i)(C). The regulation's use of the word "is" indicates that the relationship between the 
Petitioner and the Beneficiary's foreign employer must exist in the present, i.e., at the time of filing, 
and it must continue to exist until such time as the Beneficiary is granted an immigrant visa or adjusts 
status to that of a permanent resident of the United States. See 8 C.F.R. § 103.2(b )(1). In other words, 
so long as the requisite qualifying relationship exists at the time of filing the petition, a petitioner may 
be able to establish eligibility, even if it may have been ineligible for the same benefit at the time of 
the beneficiary's actual employment abroad. 
Applying the above reasoning to the facts in this matter, the qualifying relationship that is required at 
the time of filing need not have existed when the Beneficiary's employment abroad took place. 
1 To establish a "qualifying relationship," the Petitioner must show that it and the Beneficiary's foreign employer are the 
same employer (i.e., a U.S. entity with a foreign office) or that they are related as a "parent and subsidiary" or as "affiliates." 
See generally section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
2 
Further, although the Petitioner must show that the Beneficiary's foreign employment was with a 
related entity - in this case, the now-parent entity in China - it need not show that the qualifying 
relationship was created at least one year prior to the date the petition was filed or that the relationship 
existed at all during the Beneficiary's period of employment abroad. In fact, a petitioner may meet 
the qualifying relationship and the foreign employment requirements even if a beneficiary's period of 
employment abroad ceased prior to the formation of the requisite qualifying relationship, so long as 
there is evidence to show that: (1) the relationship existed at the time of filing; (2) the beneficiary's 
employment abroad was with a foreign entity that was related to the petitioner at the time of filing; 
and (3) the foreign employment took place for the required duration within the prescribed three-year 
period. Here, all three of these requirements have been met. 
Accordingly, we hereby withdraw the Director's decision and remand the matter so that the Director 
can consider the new evidence the Petitioner now submits on appeal regarding its ability to pay. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
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