dismissed EB-1C Case: Agribusiness

U.S. Citizenship 
and Immigration 
Services 
In Re : 16901126 
Certification of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 24, 2021 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, a grain dealer, processor, and exporter, seeks to permanently employ the Beneficiary 
as its "General Manager" under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act(the Act) section 203(b )(l)(C), 8 U.S.C. 
§ 115 3 (b )( 1 )( C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in an executive or managerial capacity. 
In the latest decision, the Director of the Texas Service Center denied the petition, concluding that the 
Petitioner did not establish, as required, that the Beneficiary would be employed in the United States 
in a managerial or executive capacity.' The Director certified the decision to our office for review. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will affirm the Director's denial 
of the petition . 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing 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 affiliate. Section 203(b)(l )(C) of the Act. 
The Form I-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 filing of the petition, that the beneficiary is coming to work in the United States for the same 
1 The petition and the Petitioner's subsequentmotion to reconsider were previously denied and the matter came before us 
on appeal from the denial of the motion. We issued a request for evidence (RFE) and ultimately determined that althou~ 
the Petitioner overcame the sole basis for the denial, the petition did not warrant approval because ofresidual evidentiaiy 
deficiencies regarding the Petitioner's claim that the Beneficiary would be employed in the United States in a managerial 
or executive capacity. We therefore withdrew the Director's decision and remanded the matterforfurtherconsideration 
of the Beneficiary 's proposed U.S. employment and instructed theDirectortoentera new decision, which, if adverse, was 
to be certified to us forreview. 
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 
The issue before us is whether the facts and circumstances that existed at the time this petition was 
filed supp mi the Petitioner's claim that it would employ the Beneficiary in a managerial or executive 
capacity. 2 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. The term "function manager" applies 
generally when a beneficiary does not primarily supervise or control the work of a subordinate staff 
but instead is primarily responsible for managing an "essential function" within the organization. See 
section 101 (a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary will manage an essential 
function, it must clearly describe the duties to be perfonned in managing the essential function. In 
addition, the petitioner must demonstrate that "(l) the function is a clearly defined activity; (2) the 
function is 'essential,' i.e., core to the organization; (3) the beneficiary will primarily manage, as 
opposed to perform, the function; ( 4) the beneficiary will act at a senior level within the organizational 
hierarchy or with respect to the function managed; and ( 5) the beneficiary will exercise discretion over 
the function's day-to-day operations." Matter ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 
2017). 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function 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 IO I (a)(44)(B) of the 
Act. 
A. Factual Background 
The petition was filed in November 2013 and was accompanied by a supporting cover letter, which 
described the Petitioner as part of an "integrated enterprise" comprised of four grain processing plants 
2The Petitioner has varied in its claim regarding the nature of the proposed employment, at times claiming that the 
Beneficiary's employment would be in a managerial capacity, while also claiming executive capacity in a 2018 response 
to a request for evidence (RFE) and in a November 2020response to a notice of intentto deny (NOID). 
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in Mexico and one in Texas, the latter of which is claimed to be the "centralized" location for the 
organization's management. The Petitioner explained that the Beneficiary relies on "video and voice 
(audio) connection" as a means of monitoring the four plants in Mexico and described the 
Beneficiary's role as "General Manager of all operations directly on a daily basis." The Petitioner 
provided a comprehensive organizational chart depicting the staffing and organizational construction 
of its "integrated" operation, which includes four grain processing plants in Mexico and one plant in 
the United States. The chaii shows that the staff at the U.S. processing plant includes the Beneficiary 
and a plant manager, the latter of whom oversees a secretary, a yard foreman, an operator of a grain 
dryer, a yard assistant, and a "security" position. The chart shows that the rest of the organization is 
housed in Mexico and includes the following staff: a treasurer and her administrative assistant, the 
operations manager overseeing the four Mexico-based plant managers and theirrespective subordinate 
personnel, and the manager of administrative and financial operations and services overseeing six 
depaiirnent heads and their respective subordinates at the company that provides administrative and 
payroll services for the entire organization and is said to employ the foreign entity's staff 
The Petitioner stated that in his capacity as general manager and CEO, the Beneficiary is responsible 
for: managing the entire organization's security through implementation of "sophisticated video 
camera surveillance" that he uses to monitor the plant facilities in Mexico; managing personnel by 
conducting interviews for "all personnel prior to hiring"; managing finances by setting budgets for 
capital and expenditures, establishing banking relationships and arranging for financing when 
necessary, and monitoring daily cash flow; and managing strategy by setting marketing objectives, 
selecting new markets to enter, and determining where to build new facilities. The Petitioner also 
provided a partial account of the Beneficiary's work week, stating that the Beneficiary spends five 
hours per week in Skype meetings with all five plant managers to coordinate and review pricing and 
factors that affect pricing; 90 minutes per week reviewing purchases, sales, and receipts to manage 
cash flow; two weekly Skype sessions of an unspecified duration meeting with all five plant managers 
to review crop insurance; four hours per week in Skype meetings with the operations manager and 
five plant managers to obtain reports on their respective visits to "major growers" regarding each 
grower's level of development and credit needs; and 3-3 1/2 hours perweekmeetingwith the managers 
regarding growers whose loans are in default status. The Petitioner provided the same job description 
in response to the Director's subsequent RFE. 
In the course of our de nova review, we also issued an RFE in which we noted that the daily schedule 
of activities was not sufficient because it accounted for only a portion of the Beneficiary's time and 
included only general assertions about the Beneficiary's responsibilities concerning management of 
the organization's security, personnel, finances, and strategy. We asked the Petitioner to provide 
evidence of employee salaries as well as a job description listing all of the Beneficiary's duties and 
functions and the percentages of time he would allocate to each of his assigned duties. The response 
included wage and tax documents from 2014 and 2015 as well as a job duty breakdown in which the 
Petitioner stated that the Beneficiary allocates his time to activities within one of six categories. 
Namely, the Petitioner stated that 25% of the Beneficiary's time would be allocated to marketing 
management, 20% to strategic planning, 15% to managing human resources, 10% to security 
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management, and 10% to operations management. The activities listed in the original job description 
were reiterated and grouped into the financial management category. 
Accordingly, although we withdrew the Director's decision because the Petitioner overcame the 
original basis for denial, we did not sustain the appeal and instead remanded the matter, finding that 
the Petitioner provided a deficient job description and did not adequately explain how subordinates 
and contractors would perform operational tasks. We discussed ambiguities in the organizational chait 
with respect to the U.S. component, noting the U.S. plant manager was the only employee who was 
specifically within that component and, based on our review of the Petitioner's wage and tax evidence, 
we questioned the Petitioner's staffing structure noting the fluctuating number of employees and the 
low wages that were reported for a number of employees in time periods preceding and following this 
petition's filing. In sum, we determined that insufficient evidence was provided to show that the 
Beneficiary would primarily perform managerial or executive job duties in his proposed position in 
the United States. 
The Director later issued an RFE and the Petitioner responded to it citing Matter of Z-A-, Inc., Adopted 
Decision2016-02(AAO Apr. 14, 2016), and two non-precedent decisions. The Petitioner emphasized 
that the joint participation of the Petitioner and its foreign affiliate "in an integrated international trade 
business" warrants consideration of the organizational needs of both entities when making a 
determination about whether the Beneficiary's U.S. employment fits the definition of managerial 
capacity. The Petitioner asserted that the Beneficiary is both a personnel and a function manager; in 
support of the former, the Petitioner stated that the Beneficiary "manages the organization with 
unlimited authority over all components or departments of the organization," has "unrestricted and 
unlimited authority" over the organization's personnel in Mexico and the United States, including the 
U.S. plant manager, and has broad discretionary authority over the organization's daily operations, 
including the Petitioner's purchase, sale, and export of corn and sorghum. The Petitioner also stated 
that in "directing an international grain exporter/ dealer," the Beneficiary manages an essential function 
and therefore qualifies as a function manager. In support of its arguments, the Petitioner provided: an 
undated chart listing the Beneficiary's functions and activities; documents reflecting the individual 
and integrated staffing structures of the foreign and U.S. entities in 2015 and 2018; wage and tax 
documents for 2016, 2017, and2018; and a list ofresponsibilities and activities of "key personnef' in 
2015. 
In the decision that has been certified to us, the Director reiterated earlier concerns about the lack of a 
detailed job description for the Beneficiary and the insufficient evidence establishing that the 
Petitioner has been adequately staffed and was able to support the Beneficiary in a managerial or 
executive position as of the date this petition was filed. The Director also determined that the 
Petitioner did not identify a function that the Beneficiary would manage or clearly define the activity 
of the claimed function and concluded that the facts in the instant matter are not comparable to those 
described in Matter ofZ-A-. 
The Petitioner has since provided a legal brief, which summarizes the procedural history in the matter 
at hand and argues that the Director's analysis is inconsistent with our decision in Matter of Z-A-, 
where we considered the reasonable needs and staffing of the organization as whole. 
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B. Analysis 
We find thatthe Petitioner did notprovide sufficient evidence establishingthatatthe time this petition 
was filed, it was able to employ the Beneficiary in a managerial or executive capacity. 
First, as discussed in our earlier decision and in the subsequent findings of the Director, the Petitioner 
has not adequately described the Beneficiary's job duties or established that the primary p01iion of the 
Beneficiary's time would be allocated to job duties that are either managerial or executive in nature. 
Despite asking the Petitioner to provide a job description listing the Beneficiary's duties and functions 
and the approximate percentage of time the Beneficiary planned to allocate to specifically itemized 
activities, the Petitioner assigned a percentage of time to only six general categories and merely 
restated the hourly breakdown of activities that were incorporated into the financial management 
category, which accounted for 20% of the Beneficiary's time. The remainder of the job description 
consisted of "activities" and sub-groups that listed more activities, yet none were assigned a specific 
percentage of time quantifying the number of hours the Beneficiary planned to allocate to specific 
activities on a daily or weekly basis, thereby precluding an understanding of the time the Beneficiary 
would devote to non-managerial or non-executive job duties. Likewise, the chart of functions and 
activities listed multiple activities for each of nine functions, but it did not specify the percentage of 
time that would be assigned either to the function or to the activities comprising that function. 
Whether the Beneficiary is a managerial or executive employee turns on whether the Petitioner has 
sustained its burden of proving that their duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. As such, it is critical for the Petitioner to not only describe the 
Beneficiary's job duties with specificity, but also to detail what prop01iion of those duties would be 
managerial or executive. An employee who "primarily" performs the tasks necessary to produce a 
product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See, e.g., id. (requiring that one "primarily" perform the enumerated managerial 
or executive duties); Matter o_[Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988). The 
lack of this critical explanation and documentation in the matter at hand is important, given that the 
Beneficiary would be assigned some tasks that appear to be operational in nature, such as attending 
the grower's conference and traveling to individual growers, training subordinates in the proper 
handling of grain, addressing staffing deficiencies as a result of security concerns, establishing 
relationships with banking institutions and arranging for financing, remotely monitoring surveillance 
videos, and "redesigning scheduling systems for personnel and equipment." 
Although the Petitioner supplemented the record with the previously mentioned chart of functions and 
activities, this chart similarly lacked critical information about the time the Beneficiary would devote 
to his assigned job duties. Without specific information establishing the amount of time the 
Beneficiary would spend performing non-managerial or executive tasks, we cannot determine whether 
he would primarily perform the duties ofa manager or an executive. See IKEA US, Inc. v. U.S. Dept 
o_f Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). The Petitioner also did not specify which tasks are 
executive or managerial in nature, thus leaving us to question whether any of the Beneficiaty's 
activities should not be considered managerial or executive. See Decor Team LLC v. McAleenan, 
2021 WL661974at*5 (D.Ariz. Feb.19,202l);seealsoRenandElizureinternational,Inv. v. USCIS, 
2021 WL 1784615 at *6 (E.D. Va. May 5, 2021). Itis critical to point out, however, that the burden 
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of discerning between tasks that are managerial or executive and those that are not falls squarely on 
the Petitioner. See section 291 of the Act, 8 U.S.C. § 1361. 
Further, the Petitioner does not provide sufficient evidence demonstrating that its U.S. component is 
adequately staffed to support the Beneficiary in a managerial or executive position. If staffing levels 
are used as a factor in determining whether an individual is acting in a managerial or executive 
capacity, USC IS must take into accountthe reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. In this instance, the Petitioner's operation 
consists of grain processing plants in Mexico and the United States. The Petitioner therefore identifies 
its organization as an "integrated enterprise" and compares its circumstances to those described in 
Matter of Z-A-, where we approved a petition involving a U.S. company that relied on eight staff 
members within its foreign parent entity to support the beneficiary's U.S. position. 
Because the Petitioner's circumstances are substantially different from those in Matter of Z-A-, we 
find that the decision in Matter ofZ-A- is not applicable to the matter at hand. Among the more notable 
distinctions is that the petitionerinMatterofZ-A- was specifically setup to carry out a critical function 
- importing, marketing, and distribution of products manufactured by the foreign entity- and the same 
petitioner relied on the foreign entity's eight-person staff to "exclusively" support the beneficiaiy's 
U.S. position. Id. at 2. In this matter, although the Petitioner is claimed to also use the services of a 
foreign-based support staff, that staff is not dedicated to support the Petitioner's U.S. operation. 
Rather, the Petitioner describes itself as part of an "integrated enterprise" that includes five grain 
processing plants, four of which are located in Mexico and are supported by an operations manager 
and manager of a fully staffed administrative and financial operations and services department, also 
located in Mexico. Although the organizational chaii indicates that suppmi by the latter department 
extends to all five grain processing plants, including the Petitioner's U.S.-based plant, the Petitioner 
does not claim, nor is there evidence demonstrating, that supporting the U.S. operation is a primary 
concern of the Mexican-based staff: who appear to primarily support the business functions of the four 
processing plants in Mexico, where most of the organization's processing plants and buyers are 
located. In fact, aside from broadly stating that it "relies upon the Mexican affiliate to receive, store, 
market, sell, and distribute U.S. com and sorghum to Mexican buyers," the Petitioner does not specify 
how the foreign personnel will support the U.S. operation or state how much time they will dedicate 
to this endeavor. In addition, despite claiming that the Beneficiary is relieved from having to primarily 
perform non-managerial and non-executive functions, the Petitioner provides no evidence explaining 
who arranges for and handles the non-qualifying operational duties associated with the transportation 
and export of the grains obtained and processed in the United States. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 T&N Dec. 3 69, 
376(AAO2010). 
Another notable distinction between this Petitioner and the petitioner in Matter of Z-A- is that the 
primary purpose of the latter was to carry out an essential function of the foreign organization, and the 
beneficiary in that scenario was assigned to specifically manage that function. The same cannot be 
said of this Petitioner, which consists of a single grain processing plant that is substantially similar to 
the four processing plants belonging to its affiliate in Mexico. There is no evidence that the U.S. 
operation represents an essential function of a broader international organization or that the 
Beneficiary specifically manages a specific function within that organization. Rather, the Petitioner 
stated that the Beneficiary "manages the organization with unlimited authority over all components or 
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departments of the organization, which includes both [the] Petitioner and its Mexican affiliate[.]" By 
virtue of making this claim and by failing to identify a specific function of the organization, the 
Petitioner effectively contradicted the claim that the Beneficiary assumes the role of a function 
manager. If USCIS finds reason to believe that an assertion stated in the petition is not true, USCIS 
may reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § l l 54(b ); Anetekhai v. INS, 
876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 
1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In addition, the organizational chart shows that only the four processing plants in Mexico are supported 
by an operations manager, whose duties include monitoring crop purchases, negotiating grain sales, 
and engaging in "problem resolution as issues arise." According to the chart, there is no operations 
manager position overseeing the U.S. plant manager, who is said to be directly subordinate to the 
Beneficiary. As such, it is unclear who, if not the Beneficiary, will perfonn the operational job duties 
of an operations manager and how much time he would spend performing those duties to meet the 
needs of the U.S. entity. As noted earlier, an employee must "primarily" perform managerial or 
executive tasks to be deemed as someone who is employed in a managerial or executive capacity. See 
sections 101 (a)(44)(A) and (B) of the Act. Because the Petitioner has not clarified how much time 1he 
Beneficiary would allocate to qualifying versus non-qualifyingjob duties, we cannot concludethatthe 
primary portion of the Beneficiary's time would be spent performing duties that are managerial or 
executive in nature. 
Aside from the ambiguity discussed above, the Petitioner also neglected to provide sufficient evidence 
establishing that its U.S. operation was adequately staffed with full-time employees in 2013 when this 
petition was filed. According to the Petitioner's Form W-3, Transmittal ofWage and Tax Statements, 
the Petitioner paid under $85,000 in salaries and wages and according to the Form W-2s, Wage and 
Tax Statements, the Petitioner issued that year, $32,234 and $21,279 were paid to the Beneficiary and 
the Petitioner's plant manager, respectively, thus indicating that only two employees received salaries 
that were commensurate with those of full-time employees. Even if the Director had considered 1he 
financial and administrative services that the foreign support staff was able to provide, this would not 
explain how the Petitioner compensated for the apparent staffing deficit at its U.S. processing plant, 
which, according to the organizational chart, required a yard foreman, a secretary, a grain dryer 
operator, a yard assistant, and a "security" position in order to be fully staffed. 
Thus, despite arguing that the Director should have considered the staffing of the entire organization, 
which includes not only the Petitioner but also its foreign affiliate where the administrative and 
financial services support staff is located, the Petitioner has not offered sufficient evidence to show 
that since the time this petition was filed, it has regularly filled the positions that were listed in its 
organizational chart. As noted in our remand decision and later in the Director's certified decision, 
the Petitioner's quarterly tax returns for 2014 and into the third quarter of2015 show that its staffing 
continued to fluctuate between three and 14 employees and of the 17 Form W-2s the Petitioner issued 
in 2014, six were issued to employees who received wages totaling below $10,000 and nine others 
were issue to employees who received wages below $2000, thereby again showing that only two 
employees received full-time salaries. Although we acknowledge that staffing cannot be the so le basis 
for determining whether the Beneficiary's employment would be in a managerial or executive 
capacity, it is appropriate for USCIS to consider the size of the petitioning company in conjunction 
with other relevant factors, such as the absence of employees who would perform the non-managerial 
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or non-executive operations of the company or a company that does not conduct business in a regular 
and continuous manner. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C.2001 ). In this matter, it is unclear precisely whom the Petitioner 
employed and which positions were filled at the time of filing. Without this relevant information, we 
cannot conclude that the Petitioner's operation was adequately staffed with support personnel who 
were available to relieve the Beneficiary from having to perf 01m primarily non-qualifying operational 
tasks at the time this petition was filed. 
In sum, based on a totality of the evidence analysis in which we have considered the Beneficiary's job 
duties, the nature of the Petitioner's business, and the organization's staffing within the context of the 
Petitioner's reasonable needs, we conclude that the Petitioner has not demonstrated that its U.S. 
operation has either the need or the capacity to supp01i the Beneficiary in a position where he would 
devote his time primarily to tasks of a managerial or executive nature. Therefore, the Petitioner has 
not established that the Beneficiary would be employed in the United States in a managerial or 
executive capacity. 
ORDER: The decision of the Director, dated December 23, 2020, is affirmed, and the petition is 
denied. 
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