In a decision dated June 13, 2013 the Administrative Appeal Office (AAO) found that USCIS’ Nebraska Service Center’s denial of an EB-1 (C) Multinational Executive/Manager application was deficient as it was based upon unsupported conclusions of law and fact. Specifically, USCIS was arguing among other things that the petitioner had failed to establish (1) that the beneficiary was an employee and not the employer; (2) that the beneficiary was going to manage a subordinate staff of professional, managerial, or supervisory personnel who would relieve the beneficiary from performing the day-to-day duties of the business; and (3) that the petitioner had been doing business for at least one year. The AAO found that:
The beneficiary's employer-employee relationship with the foreign and U.S. entities is not an essential issue for consideration when evaluating the beneficiary's eligibility. The AAO added that while the statute uses the term "employee" in the definition of manager or executive, the key elements of the statutory definitions focuses on the duties and responsibilities of the employee and not the person's employment status. The AAO concluded that it is most appropriate to review the beneficiary's eligibility by making a determination on his or her claimed managerial or executive employment;
USCIS's finding that the petitioner lacks the complexity necessary to warrant a managerial/executive position appears to be based solely upon the petitioner's size of eight employees. The AAO stated that a company's size alone, without taking into account the reasonable needs of the organization, may not be the determining factor in denying a visa to a multinational manager/executive. It furthers added that while it is appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant factors, the director must articulate all of the other relevant factors that were considered in concluding that a company lacks organizational complexity;
The change in the petitioner's ownership and management has no bearing on whether the petitioner has been doing business as defined by the regulations. USCIS therefore cannot use the date a company was last acquired to determine if this company has been in business for more than a year in the context of an EB-1 (C) Multinational Executive/ Manager application.
The AAO sustained the appeal and remanded for further consideration.