This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
Elizur International Inc., a company that produces ornamental glass products, filed an employment-based green card petition in 2018 seeking to permanently employ Chuncheng Ren, a Chinese citizen, in the United States as a multinational executive or manager. U.S. Citizenship and Immigration Services (USCIS) denied Elizur’s petition. Rather than file an administrative appeal, Elizur and Mr. Ren sued in federal court and lost. On February 14, 2023, the U.S. Court of Appeals for the Fourth Circuit affirmed the denial.
The court noted that to establish whether an employee works or has worked in a managerial or executive role, the petitioner (sponsoring employer) must submit a detailed list of the job-related tasks the individual performs or has performed; general or vague descriptions are insufficient. But a thorough job description is not enough, the court said. The description must also reveal that the beneficiary’s duties have been or will be primarily managerial or executive in nature. Mere assertions, as in the case here, that the beneficiary “provided managerial and executive leadership to the marketing/product development functions” and “implemented new business acquisition initiatives,” for example, are insufficient. The court noted that the company’s submission was “filled with fluffy descriptions devoid of any real substance. Indeed, it largely reads more like a collection of one-liners useful for resume drafting than a meaningful description of the duties that Ren actually performed.”
The court also found that the agency’s request for supplemental evidence about the employee’s “specific daily duties” and the “percentage of time spent on each duty” was appropriate. “A petitioner’s failure to furnish evidence of specific day-to-day duties forms a common component of both agency denials of Form I-140 petitions and courts’ review of those denials,” the court noted.
This case provides a reminder to employers that the benefits of an I-140 permanent residence petition for a multinational executive or manager are distinct from the benefits of an L-1A temporary nonimmigrant visa for a multinational executive or manager. This includes the fact that for the benefits of I-140 permanent residence, an employer must establish that the beneficiary also held a manager or executive-level position abroad, whereas this is not a criterion for the L-1A status/visa.
