EB1 for Multinational Executive / Manager Must Meet Burden of Proof
Posted Feb 08, 2008
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The Administrative Appeals Office (AAO), in a non-precedent case, upheld the denial of an I-140 petition for the multinational executive / manager of a restaurant, noting that a recitation of the beneficiary's vague and broadly-cast job responsibilities was insufficient to establish that she would be employed in a primarily managerial or executive capacity. The Murthy Law Firm did not act as the attorney in either the initial filing or the appeal to the AAO in this case. As our regular readers of MurthyDotCom may know from our articles, including Employment Based First Preference (EB1) or Priority Workers / Multinational Executive or Manager, the petitioner must establish that the beneficiary will work at the company in an executive or managerial capacity. This is a summary of the position of the U.S. Citizenship and Immigration Services (USCIS) and the AAO with regard to the burden of proof to be met by the employer to establish legal eligibility in this category.
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Facts of the Case and USCIS Denial of the Petition
The petitioner, a Japanese restaurant, filed a Multinational Executive or Manager petition in the EB1 category, proposing to employ the beneficiary as the chief executive officer of its company. The petitioner indicated that "the beneficiary would be the highest-ranking officer of the company and would be responsible for the financial and business performance of the organization." The USCIS denied the petition, stating that the broad description was insufficient to establish that the beneficiary would perform the duties required of a multinational manager or executive. In addition, the USCIS noted that the restaurant generally does not require or involve the employment of this level or type of professional employee and, therefore, the beneficiary's position would not appear to be that of a multinational manager or executive.
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AAO Says Petitioner Must Clearly Define Manager's / Executive's Duties
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In reviewing the denial decision of the USCIS, the AAO agreed that the job duties, as described by the petitioner, were simply a paraphrase of the regulatory criteria. The AAO noted that it was not enough for the petitioner to state that the beneficiary will "make all day-to-day business decisions for the company." In addition, the restaurant's personnel structure generally does not require a chief manager who will manage a specific function, but usually requires one to "perform duties relating to that function." Because the AAO concluded that the beneficiary will perform daily functions as opposed to managing them, it affirmed the denial of the Multinational Executive / Manager petition.
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Conclusion
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The AAO's decision affirms the USCIS's recent policy of adjudicating Multinational Executive or Manager / EB1 petitions establishing a high threshold for the petitioner to meet all of the required criteria. Based on this decision and other indicators of the stringent requirements of the USCIS, the Murthy Law Firm has developed a unique, winning approach to the preparation and filing of eligible EB1 petitions for multinational managers and executives. This case certainly comports with our experience that cases of this nature must be clear and, sometimes, excruciatingly specific as to job duties that meet the statutory and regulatory criteria to the satisfaction of the USCIS.
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