dismissed EB-1C Case: Automobile Sales

U~S. Citizenship 
and Immigration 
Services 
MATTER OF E-USA INC. 
Non-Precedent Decision of the 
Administrative App~als Office 
DATE: DEC. 21, 2018 
MOTlON ON ADMINISTRATIVE APPEALS OFFICE DEClSION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The - Petitioner, an importer and exporter of automobiles, seeks to permanently employ the 
Beneficiary as its president and general manager under the first preference immigrant classification 
for multinational executives or managers. Immigration and Nationality Act (the Act) 
section203(b)(l)(C), 8U.S.C. §lt53(b)(l)(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. ' · 
The Director of the Texas Service Center denied the petition, concluding that the _record did not 
establish, as required, that the Beneficiary would be employed in _a managerial or executive capacity. 
The Petitioner later appealed .the decision and we dismissed the appeal concurring with the 
Director's determination that the Petitioner did not demonstrate that the Beneficiary would act in a 
managerial or executive capacity. The matter is now before us on a motion to reopen and a motion 
to reconsider. 
On motion, the Petitioner subrnits an_ additional support letter including another Beneficiary duty 
description and tax documentation relevant to the 2011 fiscal year. The Petitioner contends that the 
Beneficiary would act in an executive capacity. 
Upon review, we will deny the motion to reopen and the motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on factual grounds and must (l) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider is based on legal grounds and must (1).state the reasons for 
reconsideration; (2) be supported by any pertinent precedent decisions to establish that the decision 
was based on an incorrect application of law or policy; and (3) establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § I 03.5(a)(3). 
· We may grant a motion that satisfies these requirements and demonstrates eligibility for the· 
requested immigration benefit. 
Matter of £-USA Inc. 
,; 
II. ANALYSIS 
A. Motion to Reconsider 
As noted, the Director denied the petition and we further dismissed the appeal concluding that the 
Petitioner did not establish that the Beneficiary would act in a managerial or executive capacity. As 
noted, the Petitioner submits an additional support letter and 201 I tax documentation on motion. 
However, the Petitioner's motion is not supported by pertinent precedent or adopted decisions, 
statutory or regulatory provisions, or statements of U$. Citizenship and Immigration Services 
(USCIS) or Department of Homeland Security policy, and does not establish that our decision was 
· based on an incorrect application of law or policy, as required. 8 C.F.R. § 103.5(a)(3 ). 
Accordingly, we find that the Petitioner does not meet the requirements of a motion to reconsider. 
B. Motion to Reopen 
j 
On motion, the Petitioner submits an additional support letter with another duty description for the 
Beneficiary and 20 I I tax documentation. As such, we will address this submitted evidence. 
However, we conclude that the Petitioner has not submitted sutlicient new facts supported by 
affidavits or other documentary evidence to warrant reopening this matter. 8 C.F.R. § I 03.5(a)(2). 
In our previous decision, we affirmed the Director's conclusion that the Petitioner did not establish 
that the Beneficiary would act in a managerial or executive capacity in the United States. We 
concluded that the Petitioner's assertion that the Director's decision was based solely on its small 
size was unfounded. We also determined that the record lacked a detailed description of the 
Beneficiary's duties including the perceQtages of time he would spend on his various tasks, as 
requested by the Director. Further, we concluded that the Petitioner did not sufiiciently explain how 
the Beneficiary was primarily relieved from performing non-qualifying operational duties. 
The record iqdicates that the Petitioner operates a business that repairs, showcases, and sells luxury 
cars and yachts. On motion, the Petitioner provides an additional support letter stating that the 
Beneficiary is the "sole executive in charge-of making all high level responsibilities and overseeing 
profitable initiation of the U.S. operations." The Petitioner submits additional duties, 
accomplishments, and attributes for the Beneficiary on motion, as follows: 
Financial Administration- 25% of the time 
• responsible for executing the goals of the .parent company and for all financial 
administration, 
• reaching gross sales of$3 million in 2010 and $3.3 million in 2011, 
• achieving gross profits of $237,861 in 2011, 
• ability to make difficult decisions and reduce cost overhead· while increasing 
sales, _ 
• make and execute high level decisions, 
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Maller <?f £-USA Inc. 
• allow expansion into other revenue generating ventures , 
• sole executive authorized to sign on behalf of the company in financial matters , 
• only person authorized to enter into business agreements, 
• selected the location of the company's headquarters, 
• made the decision on how to use corporate profits , 
• increased services to include value added services, 
• implement corporate policies, marketing strategies, and ensure maximum 
profitability, 
• analyze performance data to measure productivity and goal achievement, 
• optimize economic and finanC:ial resources , 
• establish annual budget , perform cost analysis , and manage overhead expenses, 
• review inventory controls and reporting systems, and 
• make decisions and recommend business and investment strategies . 
Establishing and Setting Corporate Policy- 25% of his time 
• respons~ble for establishing goals and setting and ensuring the implementation of 
corporate policies, 
• ability to make difficult executive and financial decisions, 
• determine pricing strategies, 
• establish sales territories and quotas, 
• approve and disapprove price schedules and discount rates , 
• authorize cost reductions or financial reallocations, 
• expand from newest source for luxury cars to newest source for 
luxury yachts , 
• made the decision in 2009 to expand from core business to offer auto repair 
mechanical services, and 
• expand into the " equipment " business. 
Direction of Commercial Activities through the Supervision of Supervisory 
Personnel- 35% of his time 
• authority to hire and fire pei·sonnel and determine promotions and demotions , 
• direct the purchase , repair, sale ahd distribution of products through VP/sales 
manager and managed staff, 
Oversee Marketing and New Business Development- I 5% of his time 
• develop promotional campaigns to accommodate our marketing and expansion 
goals, 
• review and analyze marketing budgets for the purpose of planning new marketing 
strategies , 
• evaluate the effectiveness of marketing campaigns , 
• allocate advertising dollars , 
• make all decisions regarding advertising. 
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Matter of £-USA Inc. 
The Petitioner does not claim that the Beneficiary would be employed <in a managerial 
capacity. Therefore, we restrict our analysis to whether the Beneficiary would be employed in an 
executive capacity. "Executive capacity" means an assignment within an organjzation 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 10I(a)(44)(B) ~fthe Act, 8 U.S.C. § l 10l(a)(44)(B). 
When examining the executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in an executive 
capacity. 8 C.F.R. § 204.50)(5). Beyond the required description of the job duties, we examine the 
company's organizational structure, the duties of a beneficiary's subordinate employees, the 
·presence of other employees to relieve a beneficiary from performing 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, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
1. Duties 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain hjgh-level responsibilities. Champion World. Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also 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. USC!S, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
,The Petitioner has not submitted a sufficiently detailed duty description describing the Beneficiary's 
day-to-day executive-level duties. The Beneficiary's duty description includes several generic duties 
that could apply to any executive acting in any business or industry and they do not provide insight 
into the actual nature of his role. The Petitioner provided insufficient examples and little supporting 
documentation to demonstrate the Beneficiary's performance of qualifying duties, such as goals he 
set, difficult cost reduction de9isions he made, business agreements he entered into, profits he 
allocated, value added services he created, policies or marketing strategies he implemented, financial 
decisions he made, or investment strategies he put in pl.ace. Likewise, the Petitioner did not detail or 
document corporate policies h~ set, pricing strategies he dictated, sales territories or quotas he 
established, or price schedules and discount rates he approved. In addition, the Petitioner has not 
articulated or documented promotional campaigns he oversaw, marketing budgets he analyzed, 
finances he allocated tp advertising, or decisions he made specific to the company's advertising. 
This lack of de~ail and documentation is noteworthy since the Petitioner asserted that the Beneficiary 
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Matter ofE-USA Inc. 
had acted in an executive capacity as far back as 2007, while the current petition was filed in 2011. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive in nature, otherwise meeting the definitions wo~ld simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), qfJ"'d, 905 
F.2d 41 (2d. Cir. 1990). 
In sum, the Beneficiary's claimed duties read more as a list of general !}Ccomplishments and one-off 
high level decisions, such as steadily increasing the company's revenue and profits, expanding the 
company into the repair and sale of luxury boats, and adding auto repair services. These statements 
provide little detail as to the Beneficiary's actual day-to-day executive level duties. The Petitioner 
also contends that the Beneficiary devoted 15% of his time to directing promotional campaigns, 
analyzing marketing budgets, allocating finances to advertising, and making decisions as to the 
company's advertising. However, it submitted 2010 and 2011 IRS Forms 1120, U.S. Corporation 
Income Tax Returns that do not indicate the company had any advertising or marketing expenses 
during either of these years. The Petit_ioner must resolve discrepancies in the record with 
independent, objective evidence pointing to where the truth lies. Matier of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
Further, to the extent that the Petitioner submits evidence related to the Beneficiary's activities, it 
reflects his performance of non-qualifying operational duties. For instance, the record includes· 
several purchase invoices issued by vendors for the sale of automobiles and sales invoices issued by 
the Petitioner which include the Beneficiary's signature, some dated only a few weeks prior to the 
date the petition was filed. In contrast, the Petitioner provides little supporting documentation 
showing that the Beneficiary delegated tl-iese non-qualifying operational tasks to subordinates or 
establishi~g that his subordinates perform these non-executive duties. In sum, the submitted 
evidence suggests that the Beneficiary would perform various non-qualifyi_ng operational aspects of 
the business, such as purchasing and selling luxury cars, and there is little evidence to demonstrate 
that he would primarily delegate these tasks to his subordinates. 
Whether a beneficiary is an executive employee turns on whether the petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See section l 0 I (a)(44)(B) of the Act. 
Here, the Petitioner does not document what proportion of the Beneficiary's duties would be 
executive functions and what proportion would be non-qualifying. _The Petitioner submits evidence 
indicating the Beneficiary's· involvement in operational-level tasks_ that do not fall directly Lmder 
executive duties as defined in the statute, but does not quantify the time he spends on these duties. 
For this reason, we cannot determine whether the Beneficiary would primarily perfom1 the duties of 
an executive. See IKEA US. Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. I 999). 
_Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational executive within the meaning of section IOl(a)(44)(B) of th~ Act. The Beneficiary 
may exercise discretion over the P.etitioner's day-to-day operations and possess the requisite level of 
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Maller of £-USA Inc. 
authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that his actual duties would be primarily executive in nature. 
2. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of d_evelopment. See section 101(a)(44)(C) of the Act. 
As previously discussed, 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 I 0I(a)(44)(B) 9f the Act. Under the 
statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. The beneficiary must primarily focus 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.'' Id. 
In support of the petition and in response to the Director's request for evidence (RFE), the Petitioner 
submitted an organizational chart indicating that the Beneficiary· supervised a vice president 
operations/sales manager , an accountant, and a: "legal department." Further , the chart indicated that 
the vice president operations/sales manager oversaw a marine division consisting of a supervisor arid 
a subordinate marine electrician/mechanic and another marine mechanic. The chart also reflected 
that the vice president operations/sales manager supervised an auto division made up of a supervisor 
overseeing "inspection," "parts," and "restoration." In the support letter provided o·n motion , the 
Petitioner lists the same five subordinates and provides the same description of their duties 
previously provided on the record. 
The Petitioner has not submitted sufficient evidence to establish that the Beneficiary would be 
employed in a complex organizational hierarchy to allow him to primarily focus on the broad goals 
and policies of the organization rather than the day-to-day operations of the enterprise. In fact, the 
submitted evidence leaves question as to the Petitioner's asserted organizational structure and 
whether the Beneficiary would likely be employed in a position where he would primarily direct the 
management or establish the goals and policies of the organization. For instance, the duty 
description of the Beneficiary's lone subordinate , the vice president operations/sales manager, 
indicates that he would be involved in a wide range of low level operational duties, such as 
coordinating deliveries and pickups of equipment, "ensuring a smooth transfer of all products from 
the offices to the final destination," coordinating "with customs and· port agents to ensure that 
all equipment and vehicles can be shipped on a timely basis," resolving "any issues that may arise to 
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1\tlatter of £-USA Inc. 
delay the export of shipments," ''.purchasing automobiles at auction," and preparing and 1ssumg 
"bills, invoices and account statements for services rendered." 
The Petitioner also submits on motion a Florida employer's quarterly wage report for the first 
quarter of 2011, closely corresponding with the date the· petition was filed in February 2011, 
indicating that the asserted vice president operations/sales manag~r earned only $1,500 during that 
quarter. The wage amount paid to the claimed vice president operations/sales manager is 
questionable in comparison to the wages paid to some of the company's asserted operational, 
employees during that same quarter, such as the marine mechanic ($3,375) and the marine 
electrician/mechanic ($4,087). This discrepancy and his stated lower level duties leaves uncertainty 
as to whether the Beneficiary's claimed subordinate, the vice president operations/sales manager, 
acts in his asserted capacity. Further, it also appears questionable that with only six employees total, 
that the Petitioner would require an executive and three subordinate managers to run its operations, 
as compared to only two operational level employees. • In sum, the Petitioner's asserted 
organizational chart is not credible in light of the sub~itted evidence. 
In conclusion, the Petitioner has not established that the Beneficiary .would act in an executive 
capacity under an approved petition. The Beneficiary's duty description is overly vague and the 
record includes documentary evidence indicating that he perfonned non-qualifying duties related to 
the company's day-to-day operations up until the date the petition was filed. The evidence is not 
sutlicient to demonstrate that the Beneficiary would act in an eleva~ed position within a complex 
organizational hierarchy or that he would be primarily tasked with directing the management and 
establishing the goals and policies of the organization, consistent with the statutory definition of 
executive capacity. We acknowledge that the Petitioner submits a 2011 IRS Form 1120 on motion 
and state wage documentation indicating it paid wages to its asserted employees, but this evidence 
does not sufficiently establish that the Beneficiary would act in an executive ·capacity. 
Therefore, the Petitioner has not submitted sufficient new facts supported by documentary evidence 
to overcom·e our previous conclusion that the Beneficiary would not be employed in a managerial or 
executive capacity in the United States. 
Ill. CONCLUSION 
For the reasons-discussed,"the Petitioner has not shown proper cause for reopening or_reconsidering 
our prior.decision. · 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Mafler ~f E-USA Inc., ID# 1859972 (AAO Dec. 21, 2018) 
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