SUCCESSFUL AAO APPEALS CASE

  • Petitioner: Software Company
  • Beneficiary: Mr. Lee
  • Applying for: EB-1C Multinational Manager or Executive Classification
  • Business: Software Development Services
  • Position: Chief Executive Officer
  • Revenue: $1,811,916
  • Number of Employees: 6
  • Challenges:
    • Difficult Request for Evidence and Denial
    • Many of Mr. Lee’s subordinates were located abroad and working for the parent entity
    • Mr. Lee’s proposed duties were not managerial in capacity

The petitioner, after receiving notice that its EB-1C petition on behalf of Mr. Lee* was denied, appealed the decision through the Administrative Appeals Office, contesting the basis for denial, being that Mr. Lee was not employed abroad in an executive or managerial capacity. As the Director’s entire analysis was focused on the Mr. Lee’s proposed employment in the United States rather than on the employment abroad, the petitioning organization did not feel that the conclusion was justified.

Keys to Success

According to USCIS regulation, the term “executive capacity” entails “directing the management of the organization or a major component or function of the organization, establishing the goals and policies of the organization, component, or function, exercising wide latitude in discretionary decision-making, and receiving only general supervision or direction from higher-level executive, the board of directors, or stockholders of the organization”. The petitioner, in establishing the petition, provided a chart indicating all of Mr. Lee’s functions and the percentage of time devoted to each one, including all the team members responsible for carrying out underlying duties. The petitioner showed that these team members were all Mr. Lee’s direct or indirect subordinates, proving executive capacity. In addition, the petitioner stressed that Mr. Lee would only report to the CEO of the company and also provided copies of contracts it had executed under Mr. Lee’s leadership. The company’s organizational chart also showed Mr. Lee at the top of the hierarchy including business development managers.

USCIS, after reviewing this initial petition filed on January 15, 2015, requested further evidence detailing Mr. Lee’s managerial or executive in the United States on June 9, 2015. In response, the petitioner provided employment letters from the foreign entity, providing a sample weekly schedule of the job duties and the time allocated to each to be proposed. The petitioner in addition provided an organizational chart of the entire organization, both in the United States and abroad, demonstrating Mr. Lee’s executive capacity.

Surprisingly, USCIS denied the notion on October 7, 2015 on grounds that the petitioner failed to establish that Mr. Lee would be primarily devoted to managerial job duties, failing to provide a complete job description for Mr. Lee and his subordinates.

In its appeal, the petitioner submitted a brief explaining that the denial was unwarranted because while the denial focused on the definition of managerial capacity, the petitioner sought to classify Mr. Lee in executive capacity. The company also stressed the decision making power of Mr. Lee and furthered the breakdown of job duties.

Outcome

In the following analysis, the Administrative Appeals Office concluded that Mr. Lee would indeed be employed in an executive capacity in the United States on the basis of the aforementioned statutory definition of “executive capacity”. AAO found that the petitioner provided sufficient evidence to establish Mr. Lee’s executive role in the multinational organization and therefore withdrew the Director’s decision to deny in a non-precedent decision.

Please refer to AILA Doc. No. 16071504 for the complete analysis (hyperlink when posted)

*Name has been changed to protect client identity.