dismissed EB-1C Case: Accountancy

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-&R- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 24, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a remote accountancy service provider, seeks to permanently employ the Beneficiary 
as its chief executive oflicer (CEO) under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(I)(C), 8 U.S.C. § 1153(b)(I)(C). This classification allows a U.S. employer to 
permanently tramfer 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 on multiple grounds. Specifically, the 
Director concluded that the Petitioner did not establish that: (I) the Beneficiary acted in a managerial 
or executive capacity abroad; (2) the Beneficiary would act in a managerial or executive capacity in 
the United States; (3) the Petitioner had the ability to pay the Beneficiary his proffered wage; and (4) 
the Petitioner and the foreign employer were doing business. 
On appeal, the Petitioner contends that the Director erred in denying the petition and asserts that the 
submitted evidence demonstrates the Beneficiary's eligibility. 
Upon de novo review, we agree with the Director that the Petitioner did not establish that the 
Beneficiary will be working in a managerial or executive capacity; therefore, the appeal will be 
dismissed. We will, however, withdraw the Director's decision with respect to the Beneficiary's 
foreign employment in a managerial or executive capacity, 
1 
the Petitioner's ability to pay the 
Beneficiary's proffered wage, 2 and as to whether the Petitioner and foreign employer were doing 
. 3 . 
bus mess. 
1 The Petitioner provides a sufficiently detailed description of the Beneficiary's duties abroad and payroll and other 
supporting evidence indicating that it is more likely than not that the Beneficiary oversaw subordinate managers in his 
capacity abroad. At minimum. the Petitioner has demonstrated that the Beneficiary more likely than not acted as a 
personnel manager supervising subordinate managers and professionals while overseeing the foreign accounting firm. 
2 We conclude that Ihe Peiitioner has established the Beneficiary's ability to pay the proffered wage of $45,000. The 
Petitioner submits an IRS Form W-2, payroll records, and bank statements indicating that the Beneficiary was more 
likely than not paid the equivalent of $45,000 per year from his entry into the United States in March 2016 to I he dale of 
the petition. 
3 In the case of the Petitioner, it provides ledgers, invoices, and bank statements indicating that it is regularly providing 
bookkeeping and other accounting services for several small businesses in the United States. Likewise, the Petitioner 
Maner of L-&R- Inc. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a benellciary who, in the three years preceding the flling 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 atfiliate. Section 203(b)(l)(C) of the 
Act. 
I ., 
The Form 1-140, 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 llling 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. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
We will first analyze whether the Petitioner has established that the Beneficiary would be employed 
in an executive capacity in the United States. The Petitioner does not claim that the Beneficiary 
will be been employed in a managerial capacity. Therefore, we restrict our analysis to whether the 
Beneficiary will be employed in an executive capacity. 
The statute defines an "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or fi.mction of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section IOI(a)(44)(B) of the Act. 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which indicates 
that the Beneliciary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. Beyond the 
required description of the job duties, U.S. Citizenship and Immigration Services (USCIS) reviews 
the totality of the evidence when examining the claimed managerial or executive capacity of a 
beneficiary, including the company's organizational structure, the duties of a beneliciary's 
subordinate employees, the presence of other employees to relieve a beneficiary from perlorming 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. Accordingly, our analysis of this 
submits evidence indicating that the foreign employer is a viable accounting finn that has been doing business in the 
United Kingdom for several years, including tax documentation, payroll records, and an audited financial statement. 
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Mauer of L-&R-Inc. 
issue will focus on the Beneficiary's duties as well as the company's business activities and slatting 
levels. 
A. Duties 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definition of executive capacity. Champion World. Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must prove that 
the Beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533: 
The Petitioner stated that it "offers a standardized set of financial accounting services for business 
customers in the United States ... using cloud-based accounting software." The Petitioner indicated 
that it "offers potential customers a monthly package of financial accounting services as a baseline 
product with additional services marketed as premium add-on items" through a "Customer 
Relationship Management (CRM) computer system" where customers can "import data and 
reconcile accounts on command." The Petitioner explained that customers pay on a monthly or 
annual subscription fee for these services. The Petitioner also indicated, and submitted supporting 
documentation indicating, that it provided "back office [accounting] services tor non-member 
customers in the United States and abroad," including several medical and dental practices. 
The Petitioner stated that the Beneficiary would spend 25% of his time "refin[ing] [the Petitioner's] 
service vision," including refining the "existing technology platform" through "executive oversight" 
of the company's chief technology officer and head of online marketing/brand manager. The 
Petitioner also clarified that these duties involved managing human resources and administration by 
overseeing his subordinate general services manager. The Petitioner indicated that the Beneficiary 
would devote 15% of his time to developing and managing the company's brand, performing such 
duties as liaising "with internal and external advisors to continually expand and improve [the 
Petitioner's] brand profile," "proactively and generously participat[ing] in networking events," 
approving external blog posts, and directing "the posting of "handwritten notes" to [the Petitioner's] 
top customers." In addition, the Petitioner explained that the Beneficiary would be responsible 15% 
of the time for developing and managing the company's place in the financial services industry, 
including seeking "opportunities to symbiotically partner with other firms," monitoring 
"opportunities t<Jr acquisition of competitor or complementary firms," and researching and 
connecting with key players in the market. 
Further, the Petitioner stated that the Beneficiary would spend I 0% of his time on maximizing cash 
flow by developing the company's "core management team" and overseeing its "revenue, expenses, 
and external financing." The Petitioner also indicated that the Beneficiary would devote I 0% of his 
time to soliciting and managing investor capital, keeping investors informed and "happy," and 
another 15% on overseeing his department heads, regularly assessing their performance and leading 
monthly staff meetings. Lastly, the Petitioner explained that the Beneficiary would be responsible 
3 
Malter of L-&R- Inc. 
I 0% of the time tor fulfilling the company's recruitment plan, including consulting with his 
department heads on recruitment and interviewing new employees. 
In denying the petition, the Director stated that the evidence reflected that the Beneficiary was likely 
primarily engaged in non-qualifying operational duties. On appeal, the Petitioner contends that the 
Beneficiary's duties are sufficiently detailed and that the evidence demonstrates that he would act as 
an executive under an approved petition. · 
The Petitioner has only provided a broad overview of the Beneficiary's general responsibilities and 
level of authority without identifying the nature of his actual day-to-day tasks. The Petitioner 
vaguely stated that the Beneficiary would be responsible for various general duties that could apply 
to any executive employed by any company in any industry. The Petitioner has provided few 
examples and little supporting evidence to substantiate how he will refine the company's "service 
vision," internal or external advisors he will consult with, opportunities for partnership or acquisition 
he will seek, key players with whom he will connect, cash flow he will manage, or investors he will 
keep informed. The Petitioner has provided few examples of executive level duties he has 
performed for the company while employed there since March 2016 4 Conclusory assertions 
regarding the Beneficiary's employment capacity are not sufficient. Merely repeating the language 
of the statute or regulations does not satisfy the Petitioner's burden of proof. Fedin Bros. Co .. Lid. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs .. 
Inc. v .. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). While the stated responsibilities suggest that 
the Beneficiary is the senior employee in the company, the provided description lacked meaningful 
information regarding what he would actually be doing as part of his day-to-day routine. 
In contrast, the Petitioner provides evidence indicating that the Beneficiary performs non-qualifying 
operational duties. For instance, the Beneficiary's duties indicate that he would be tasked with 
participating in networking events, tonnulating and approving blog posts and written notes to 
customers, conducting market research, and keeping company investors informed. Further, 
documentary evidence reflects the Beneficiary paying for a seminar for one of his subordinates using 
a credit card, working with a contractor on web design, engaging an attorney on a potential 
trademark, and registering the company with the local chamber of commerce. There is little 
indication that the Beneficiary is significantly delegating day-to-day operational tasks to his 
subordinates and primarily focusing on the broad goals and policies of the business. Indeed, the 
Petitioner. submits a photograph of the Beneficiary and two of his subordinates working in the same 
room of a small office, indicating that he is involved in the majority, if not all, the company's day­
to-day operational matters and working alongside these employees on non-qualifying functions. 
In sum, the submitted documentation suggests that the Beneficiary would be responsible tor many 
operational aspects of the business, and it has provided little evidence to substantiate that he will 
delegate these tasks to subordinates. The evidence does not indicate, as of the date of the petition, 
that the Beneficiary has been removed from performing non-qualifying operational tasks and that he 
4 The Fonn 1-129 was tiled on November 16,2016. 
4 
Maller of L-&R- Inc. 
primarily spends his time focusing on executive level duties .. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in an executive capacity. See. e:g., sections IOI(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); Matter of 
Church Scientology In!'/, 19 l&N Dec. 593, 604 (Comm'r 1988). 
The Petitioner also does not document what proportion of the Beneficiary's duties would be 
executive or managerial functions and what proportion would be non-qualifying. The record reflects 
that the Beneficiary is involved in non-managerial activities consistent with a sales representative or 
marketing employee, but it does not quantity the time the Beneficiary spends on these duties. This 
lack of detail is important because, as we have discussed, the record includes evidence reflecting the 
Beneficiary's perfom1ance of non-qualifying operational tasks that do not t~1ll directly under 
executive duties as defined in the statute. For this reason, we cannot determine whether the 
Beneficiary is primarily performing the duties of an executive. See IKEA US. Inc. v. U.S. Dept. of 
.Justice, 48 F. Supp. 2d 22, 24 (D. D.C. 1999). 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as a multinational executive. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" executive in nature. Sections IOI(A)(44)(A) and 
(B) of the Act. Even though the Beneficiary may exercise discretion over the Petitioner's day-to-day 
operations and possess the requisite level of authority with respect to discretionary decision-making, 
the position descriptions alone are insufficient to establish that his actual duties would be primarily 
executive in nature. 
As discussed further below, the record does not support the Petitioner's claim that it had a sufficient 
subordinate staff to relieve the Beneficiary from involvement in the day-to-day operations of the 
business at the time the petition was filed, and we cannot determine how much time the Beneficiary 
would reasonably devote to qualifying executive duties: 
B. Staffing and Business Activities 
If stafling levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section I 0 I (a)(44)(C) of the 
Act. 
The Petitioner stated on the Form 1-140 that it had four employees at the time of filing in November 
2016, including the Beneficiary. A submitted organizational chart reflected that the Beneficiary 
supervised a general services manager, a head of accounting, and a head of online marketing/brand 
manager. The Petitioner also provided projected organizational charts indicating that within one 
year of approval it planned on hiring a chief technology officer. Another chart specific to the end of 
its second year of approval reflected that the Petitioner would hire several operational employees 
subordinate to its current "department heads," including a secretary subordinate to the general 
5 
Maller ofL-&R- Inc. 
services manager, an accountant overseen by the head of accounting, a sales representative 
subordinate to the head of online marketing/brand manager, and a technical assistant reporting to the 
chief technology ofticer. Further, a projected chart relevant to the end of the third year following 
approval indicated that the company planned on hiring three more sales representatives and four 
account managers reporting to the projected accountant. 
In the denial decision, the Director pointed to the Beneficiary's referenced supervision of department 
heads, concluding that their employment was not established by the submitted evidence. The 
Director concluded that the Petitioner did not demonstrate that the Beneficiary had sufficient 
subordinates to qualify as a manager. On appeal, the Petitioner asserts that the Director incorrectly 
adjudicated the matter based on whether the Beneficiary would qualify as a manager and contends 
that he would act in an executive capacity. 
As noted, the Petitioner asserts that the Beneficiary qualifies as an executive. The statutory 
definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section IOI(a)(44)(B) of the Act. Under the statute, a 
beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of that organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for a beneficiary to direct and they must primarily locus on the broad goals 
and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as the owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." !d. 
The submitted evidence indicates that the Petitioner did not have sufficient staff as of the date of the 
petition's tiling to support the Beneficiary in an executive capacity and primary relieve him from 
performing non-qualifying operational tasks. For instance, the Petitioner states that the head of 
accounting would be tasked with recruiting "customer-facing Accountant and Account Manager 
positions" and that she would coordinate with the chief technology ofticer to "develop and oversee 
the implementation of technology updates." In contrast, the Petitioner provides emails from .June 
2016 reflecting that the head of accounting was recruited to perform accounting work, 
"administrative and office tasks," and to look "after the book keeping and accounting of clients." 
Further, an email from the Petitioner's general services manager to the Beneficiary notes that the 
head of accounting would learn a computer based accounting system and indicates that she is 
working with the company to fulfill a minimum state work requirement to become a certified public 
accountant. 
The Petitioner also provided a Florida Employer's Quarterly Report for the tourth quarter of 2016 
indicating that it only had three employees by December 2016 and reflecting that the company,'s 
claimed head of accounting had separated fr01n the company on December I, 2016. In sum, this 
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Muller of L-&R- Inc. 
evidence leaves significant C[uestion as to whether the Petitioner has sufficient employees to perform 
the operational duties of the business and primarily relieve the Beneficiary from these tasks. The 
Petitioner must resolve discrepancies in the record with independent, objective evidence pointing to 
where the truth lies. Mal/er of!-!o, l9l&N Dec. 582,591-92 (BIA 1988). 
Even if we are to accept that the Petitioner would employ a head of accounting upon the approval of 
the petition, there is question as to whether this projected employee would be primarily responsible 
for recruiting other accountants and account managers, as the company's hiring projections indicate 
that this accountant would not be hired until two years after a potential approval and account 
managers not until three years later. Likewise, the head of accounting's duties reference her 
coordination with the chief technology officer, who is not projected to be hired Lin til one year after 
an approval. As such, given the supporting email evidence, it appears likely that the head of 
accounting would not be acting in her proposed managerial or department head role, but that he or 
she would perfonn accounting and other administrative tasks. As we have noted, the Petitioner's 
state employer's quarterly returns indicate that the Petitioner no longer employed any accounting 
employees subordinate to the Beneficiary less than one month after the date of the petition. The 
evidence also indicates that the Beneficiary has substantial experience in accounting; as such, it 
appears likely that he would be primarily engaged in these operational tasks. 
Furthermore, the Petitioner also makes light of several other operational level tasks inherent in the 
performance of its services, including technical and software support, the maintenance of its web 
based accounting application, and the sale and support of its services to clients. The Petitioner 
projects that it will hire employees to perform these tasks in the years to come, including a chief 
technology officer, a technical assistant, sales representatives, and account managers. However, it is 
not clear who is performing these tasks as of the date of the petition, and without details and 
supporting evidence to the contrary, it appears likely that these tasks would be performed by the 
Beneficiary and his two confirmed subordinates, the asserted general services manager and head of 
online marketing/brand manager. 
Given the lack of operational subordinates, it is unlikely that these asserted department heads would 
act in their proposed managerial capacities. For instance, the Petitioner states that the general 
services manager would be tasked with human resources responsibilities, such as hiring and tiring, 
including recruiting new personnel in the administration, marketing, and information technology 
departments. However, the Petitioner does not plan on hiring these employees in the immediate 
future, as hiring projections indicate that this would take place two years after a potential approval. 
Therefore, these proposed duties for the general services manager do not appear credible. Given that 
she is later projected to oversee a secretary, it appears likely that she was fulfilling this role as of the 
date of the petition. 
Lastly, the Petitioner states that the asserted head of online marketing/brand manager would be 
tasked with gathering "information on likely competitors," developing "pricing strategies," 
determining "needs for new [Petitioner] products," and supporting "the refinement of [the 
Petitioner's] service vision." These duties are overly vague and do not substantiate that this 
7 
Mauer rif L-&R- Inc. 
employee was acting as a department head as of the date of the petition. For instance, the Petitioner 
does not specify the competitors he has or will research, pricing he will set, new products he has 
worked on, or other specific duties he has or will perform as a part of his daily routine. Further. it is 
not clear what operational level employees would benefit from these higher level duties, such as who 
would respond to his research on competitors, carry out the pricing policies, sell the new products, or 
respond to his service vision. Again, the Petitioner has not submitted sufficiently detailed or 
credible duties for the Beneficiary's claimed head of online marketing/brand manager. 
In sum, the Petitioner has not corroborated that it had sufficiently developed to support the 
Beneficiary in an executive capacity as of the date of the petition's filing. As noted, inherent to the 
definition of an executive; the organization must have a subordinate level of managerial employees 
for a beneficiary to direct to allow the Beneficiary to primarily focus on the broad goals and policies 
of the organization rather than day-to-day operations. However, the Petitioner has not supported that 
it has sul1icient employees to perform its accounting services, support its web functionality, develop 
its website, handle its sales activities and account management, amongst other operational tasks 
inherent to its stated operation. Indeed, the evidence indicates that these employees will not be hired 
for years. The Petitioner must establish that all eligibility requirements for the immigration benefit 
have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. 
§ 103.2(b)(l). 
Furthermore, the Petitioner provides few specific examples and little supporting documentation to 
substantiate the Beneficiary's actual performance of executive level duties, beyond one off events, 
such as registering the company with the local chain of commerce and contacting a lawyer.regarding 
a potential trademark. Therefore, the evidence indicates that the Beneficiary will likely act as little 
more than a first line supervisor and that he would more likely be primarily engaged in non­
qualifying tasks under an approved petition. For these reasons, the appeal must be dismissed. 
III. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that the Beneficiary will be 
employed in the United States in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Maller ofL-&R-Inc., 10# 1161233 (AAO Apr. 24, 2018) 
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