dismissed EB-1C Case: Botanical Products

MATTER OF Y-B-P-G- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 24, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which sells products derived from yew trees and other botanical sources, seeks to 
permanently employ the Beneficiary as its chief executive officer (CEO), deputy general manager, 
and treasurer under the first preference immigrant classification for multinational executives or 
managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ 1153(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. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity; and (2) the Beneficiary has been employed abroad in a managerial 
or executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by rendering 
a decision that conflicts with the prior approval of nonimmigrant petitions on the Beneficiary's 
behalf. 
Upon de nova review, we will dismiss the appeal. 
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 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 filing 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. § 204.50)(3). 
Matter ofY-B-P-G- Inc. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
At times, the record ambiguously refers to the Beneficiary's positions as "managerial or executive," 
but on appeal, the Petitioner refers to the Beneficiary as an "experienced executive" and specifies 
that "the beneficiary's duties would be executive functions." Therefore, we will restrict our analysis 
to whether the Beneficiary will be, and has been, employed in an executive capacity. 
"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 
10l(a)(44)(B) of the Act, 8 U.S.C. § l 101(a)(44)(B). 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, 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. 
When examining the claimed executive capacity of a given beneficiary, we will look to 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 a 
managerial or executive capacity. See 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 and its staffing levels. 
A. Duties 
The Beneficiary began working for the Petitioner in the United States in 2014, as an L-lA 
nonimmigrant intracompany transferee. A "[ s ]ample week schedule" indicated that the Beneficiary 
performed the following tasks: 
Monday: assign tasks for the week and review prior week's performance. 
Tuesday: market research, product development. 
Wednesday: operational activities, AIR, AIP, etc. 
Thursday: operational activities, product development, R&D, inventory, etc. 
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Matter of Y-B-P-G- Inc. 
Friday: review week performance, hold management meeting, set targets, etc. 
Asked to provide further details, the Petitioner submitted a translated statement from its foreign 
subsidiary, indicating that the Beneficiary "was responsible for all [the Petitioner's] daily business 
affairs." Separate, unsigned statements listed her responsibilities as the Petitioner's CEO, deputy 
general manager, and treasurer. To a large extent, these statements attested to the degree of the 
Beneficiary's authority without providing significant details about her actual duties: 
CEO responsibilities 
1. Creating, communicating and implementing the company's vision, mission, and 
overall direction. Leading the development and implementation of the overall 
company's strategy. 
2. Leading, guiding, directing, and evaluating the work of the general manager, 
finance department and marketing department. In the process of leading the 
departments, [the Beneficiary] makes certain that the strategic direction filters 
down through the company and is performed well. 
3. Soliciting advice and guidance from the board and spread through employees. 
4. Overseeing the complete operation of the company in accordance with the 
direction established in the strategic plans. 
5. Develop company culture. 
6. Evaluating the success of the company in reaching its goals, make sure each 
outcome is measurable. 
7. Maintaining awareness of both the external and internal competitive landscape, 
opportunities for expansion, customers, markets, new industry developments and 
standards. 
8. Regularly participate in board meetings, press releases and interviews. 
Deputy General Manager of the corporation job description 
1. Preside over the daily production, operation and management of the corp and 
make sure the corporation is operated under safety precautions. Operate the 
implementation of board resolution[s] and report the implementation issues to 
board meetings. 
2. Organize and implement the annual operation plans and investment plans. 
3. Propose the setup, adjustment or cancellation of specific plans of corp 
management. 
4. Draft fundamental management system of the corp. 
5. Formulate specific rules and regulations of the corp. 
6. Employ or dismiss staffs that are should [sic] not be directly employed or 
dismissed by the board. 
7. Design award, promotion, salary and staff appointment system according to 
relevant regulations and rules. 
8. Represent the company and deal with external operational communications. 
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Matter ofY-B-P-G- Inc. 
9. Assist the general manager with other issues authorized by the board and allocate 
work to relevant departments. 
Treasurer responsibilities 
1. Budgets 
2. Financial statement 
3. Tax report 
4. Stock management 
5. Payments 
6. Banking 
7. Checks and wires 
8. Employees 
9. Reimbursements 
10. Report to CFO [ chief financial officer] 
For the CEO and treasurer responsibilities, the descriptions included additional information 
associated with the listed items. The additions to the CEO responsibilities did little to describe the 
Beneficiary's activities, but the treasurer responsibilities indicated that the Beneficiary personally 
prepared budgets, managed bank accounts, and sent wire transfer payments. The Beneficiary's three 
job titles indicated that she was simultaneously superior and subordinate to the general manager and 
the CFO. A "daily job breakdown" consisted largely of meetings and monitoring work, progress, 
and financial issues. 
The Director found that the Petitioner did not specify whether it sought to employ the Beneficiary as 
a manager or executive, and that the job description was too vague to establish either option. The 
Director also observed that the Petitioner did not provide enough information to show how the 
Beneficiary would divide her time between the duties of her three distinct positions at the company, 
which include non-qualifying tasks such as banking functions. 
On appeal, the Petitioner submits a two-page job description and a three-page schedule for the 
Beneficiary, in both Chinese and English. Listed duties include: 
• Attend board meetings; 
• Make, approve, and oversee the implementation of plans; 
• Review and approve the budget, financial documents, and expenditures; 
• Hire and fire managers and staff; 
• Sign contracts and other legal documents; 
• Release information to the public; and 
• Have discretion in the event of "company emergencies." 
The latest version of the work schedule breaks events down into blocks of time, but still provides 
insufficient information about the nature of the Beneficiary's duties. The Petitioner also claims that 
the Beneficiary spends two hours of her six hour (9 am - 3 pm) work day signing "legal documents 
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Matter of Y-B-P-G- Jnc. 
and contracts," but the Petitioner has not established that a company its size produces such a volume 
of documents that signing them occupies such a significant proportion of the Beneficiary's working 
time. 
With respect to time spent reviewing reports, the Petitioner submits the annual "Work Summary and 
Report" for 2014-2016, and the annual "Work Plan" for 2015-2017. Each document is between 
half a page and two pages in length, a size that includes the full text in both English and Chinese. 
The 2015 work plan, for instance, is two sentences long, primarily concerned with sales targets. The 
brevity of these reports does not suggest that the activities described make significant demands on 
the Beneficiary's time. 
The level of the Beneficiary's authority is not in doubt, but the Petitioner has not established that the 
Beneficiary primarily exercises executive authority. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
At the time of filing, the Petitioner claimed four U.S. employees. That number increased in later 
submissions. The Petitioner stated that it "will be doing research and development," but claimed no 
existing staff with that responsibility. Instead, the Petitioner claimed that the Beneficiary's 
subordinate staff in the United States consisted of a full-time staff attorney, a general manager, and a 
marketing team that reported to the general manager. An organizational chart also indicated that the 
Beneficiary is in charge of foreign subsidiaries and an accounting department with unspecified staff. 
The Petitioner submitted job descriptions for some of the subordinate employees. Most of these are 
for lower-level marketing and sales positions. The positions are described as full-time, but tax 
documents show that each worker's 2016 income was less than $10,500. That same year, the 
attorney identified as in-house counsel received a combination of salary and contractor payments. 
The general manager's job description appears to derive from a general template. For example, it 
states that the general manager will "provide educational opportunities," but the record does not 
show where these opportunities exist within the minimal U.S. staffing structure (which includes no 
training or human resources departments). The description further indicates that the general 
manager will "participat[ e] in professional societies," but does not elaborate, and the record does not 
show that the general manager belongs to any such societies. It also states that the general manager 
establishes budgets, a task also listed in the Beneficiary's own job description. 
The Director determined that the tax documents in the record do not support the Petitioner's claimed 
organizational structure, and that the Petitioner had not established that all its initially claimed 
employees were, in fact, on staff at the time of filing. The Director concluded: "It is questionable 
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Matter of Y-B-P-G- Inc. 
whether the petitioner was sufficiently operational as of the date of the petition to support the 
beneficiary in a qualifying managerial or executive capacity." The Director also found that, 
according to the job description, the Beneficiary would perform a number of non-qualifying tasks, 
rather than delegate them to subordinates. 
On appeal, the Petitioner refers to "[f]ocusing on Research, Development and Marketing," but the 
Petitioner claims no research and development staff. The Petitioner also acknowledges that it "is not 
doing production on any of [its] products." These functions appear to be performed by staff of the 
Petitioner's foreign subsidiary, although the Petitioner has provided insufficient information about 
the organization and personnel of the foreign entity (as we will discuss below). 
The Petitioner asserts that its marketing department is staffed with full-time employees, and that its 
in-house attorney "is currently assisting the beneficiary in making changes to the company's 
Employee Handbook." According to a revised organizational chart submitted on appeal, all the 
subordinate U.S. employees report directly to the Beneficiary, including a sales clerk, making the 
Beneficiary a first-line supervisor. The Petitioner contends that some of the other positions are 
professional, which would be consistent with a managerial (but not executive) capacity, but the 
Petitioner has not shown that three sales/marketing workers and an attorney require enough 
supervisory oversight to make significant demands on the Beneficiary's time. 
The employment agreement with the individual whom the Petitioner identified as in-house counsel 
indicates that, although the individual is an attorney, his title is "Assistant Business Development 
Director." The organizational chart refers to the individual as a full-time employee, but the 
employment agreement set a base salary of only $24,000 per year and did not specify that the 
employment would be full-time, only that the individual "will devote ... whatever time and 
resources are required to fulfill his responsibilities to the business of the Company." 
The Petitioner submitted employment agreements for the other U.S. employees as well. All of these 
agreements took effect after the petition's filing date in November 2016, and therefore it is not 
evident that these agreements reflect the arrangements that were in place at the time of filing. 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). 
The Petitioner does not directly address the Director's finding that tax documents in the record show 
a smaller U.S. staff than what the Petitioner initially claimed. 
The Petitioner's foreign subsidiaries have more employees and perform more functions than the U.S. 
employer itself, but the record does not fully establish the extent of the Beneficiary's ongoing, direct 
authority over those foreign entities. 
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. Under the statute, a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of that 
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Matter of Y-B-P-G- Inc. 
organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for a beneficiary to direct and a 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 an 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." Section 10l(a)(44)(B) of the Act. 
A beneficiary's general authority over a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 101 ( a)( 44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" of an executive or managerial nature. Sections 101 (A)( 44)(A) 
and (B) of the Act. While the Beneficiary may exercise discretion over the Petitioner's day-to-day 
operations and possesses the requisite level of authority with respect to discretionary decision­
making, the position description alone is insufficient to establish that his actual duties, as of the date 
of filing, would be primarily managerial or executive in nature. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
will be employed in a managerial or executive capacity in the United States. 
III. FOREIGN EMPLOYMENT IN AN EXECUTIVE CAPACITY 
If the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate, then the regulation at 8 C.F.R. § 204.5(i)(3)(i)(B) requires the Petitioner to submit a 
statement from an authorized official of the petitioning United States employer which demonstrates 
that, in the three years preceding entry as a nonimmigrant, the Beneficiary was employed by the 
entity abroad for at least one year in a managerial or executive capacity. 
A. Duties 
The Petitioner indicated that the Beneficiary had served as the vice general manager . of the 
Petitioner's foreign subsidiary in China. An unsigned statement on the foreign employer's letterhead 
indicated that the Beneficiary had authority over purchasing plans, procurement, and "coordinat[ing] 
the balance of supply, production, and sales," while also "presid[ing] over the overall work of 
administration and management." The statement indicated that the Beneficiary "drafts the reports, 
documents and compiles data and arranges the company meetings and activities." The remainder of 
the foreign company's statement was less a job description than an exposition on the Beneficiary's 
management style. 
In the denial notice, the Director found that the Beneficiary's foreign job description was "only a 
broad overview," lacking details about "the nature of her actual day-to-day tasks." On appeal, 
counsel states that "the beneficiary's job description seemed vague and broad" because, in China, 
Matter of Y-B-P-G- Inc. 
high-ranking officials not only make a company's major decisions, but also are routinely 
"multitasking on daily operational activities," not by performing those activities but rather 
"monitoring the professionals who work directly under [their] supervision." The Petitioner also 
asserts that the Beneficiary's involvement in the company's banking activity "is very normal in any 
Asian owned companies." 
The above statement sheds no further light on the specific duties the Beneficiary performed abroad. 
Acknowledging that they "seemed vague and broad," while claiming that they actually were not, 
does not suffice to resolve the Director's concerns about this issue. The Beneficiary may have held a 
position of high authority with the foreign employer, but the Petitioner has not sufficiently shown 
that the Beneficiary's duties were primarily those of an executive. 
B. Staffing 
An organizational chart indicated that the Beneficiary oversaw three departments: Material Control, 
Forest Resources (with four local "bases"), and Administration. Unsigned job descriptions listed the 
functions, powers, and responsibilities of each department's manager, but did not indicate the 
internal structure and staffing of the departments. 
Correspondence in the record indicated that the Beneficiary had 44 subordinates abroad, but monthly 
payroll records from 2014 identified between 15 and 24 employees, up to five of whom earned a 
salary equal to or greater than the Beneficiary's, and therefore do not appear to have been her 
subordinates. 
The Director found that the Petitioner provided "vague functions, powers, and responsibilities" for 
the positions subordinate to the Beneficiary at the foreign entity. The Director also noted that the 
payroll records lacked context in terms of how the named employees fit into the organizational 
structure. 
On appeal, the Petitioner does not address the above findings specifically. Instead, the Petitioner 
briefly notes the approval of two nonimmigrant petitions on the Beneficiary's behalf. The Petitioner 
asserts that these approvals demonstrate that the Petitioner has met its burden of proof to establish 
the qualifying nature of the Beneficiary's employment. 
It must be emphasized that each petition filing is a separate proceeding with a separate record. In 
making a determination of statutory eligibility, U.S. Citizenship and Immigration Services (USCIS) 
is limited to the information contained in that individual record of proceeding. See 8 C.F.R. 
§ 103.2(b)(16)(ii). The record we reviewed on appeal does not include the records of proceeding for 
the approved nonimmigrant petitions. 
Under current binding policy, "[a]n adjudicator's fact-finding authority ... should not be constrained 
by any prior petition approval, but instead, should be based on the merits of each case." USCIS 
Policy Memorandum PM-602-0151, Rescission of Guidance Regarding Deference to Prior 
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Matter of Y-B-P-G- Inc. 
Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status 3 
(Oct. 23, 2017), https://www.uscis.gov/laws/policy-memoranda. The previously approved petitions 
are not before us at the Administrative Appeals Office, and therefore we cannot comment on how 
their records of proceedings may be similar or different to the one under review here. 
We are not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See Matter of Church Scientology 
Int'/, 19 l&N Dec. at 597. USCIS is not required to treat acknowledged errors as binding 
precedent. Sussex Eng'g. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Furthermore, 
we are not bound to follow a contradictory decision of a service center. See La. Philharmonic 
Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
was employed in an executive capacity abroad. 
IV. DOING BUSINESS 
Beyond the grounds for denial specified by the Director, the record does not establish that the 
Petitioner has been doing business in the United States for at least one year prior to the date of filing 
the petition. The regulations define key terms: 
Multinational means that the qualifying entity, or its affiliate or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Doing business means the regular, systematic, and continuous provision of goods 
and/or services by a firm, corporation, or other entity and does not include the mere 
presence of an agent or office. 
8 C.F.R. § 204.5(i)(2). The Petitioner must establish that the prospective United States employer has 
been doing business for at least one year. 8 C.F.R. § 204.5(i)(3)(i)(D). A petitioner must establish 
eligibility at the time of filing the petition. See 8 C.F.R. § 103.2(b)(l). 
Taken together, the above regulations require that the prospective employer has been actively doing 
business in the United States - not simply owning an interest in foreign companies - for at least a 
year prior to the petition's filing date. The prospective United States employer in this case is the 
Petitioner, not any foreign affiliate or subsidiary. The regulations distinguish between employment 
abroad by the petitioning employer and by a foreign subsidiary. See 8 C.F.R. § 204.5G)(3)(i)(A). A 
subsidiary is a separate legal entity from its parent company, and foreign business activity by any 
such subsidiary does not establish that the parent company itself has been doing business. 
The Petitioner filed its articles of incorporation in Nevada in November 2007, nine years before it 
filed the petition in November 2016. But a company does not provide goods or services merely by 
existing on paper as a corporation. The introductory letter submitted with the petition stated that the 
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Matter ofY-B-P-G- Inc. 
petitioning company "was established in year 2007 as a holding company and has [had] no active 
business operations in the past 8 years." (Later statements have included variations on this 
assertion.) The same letter indicated that "the company is now ready to start business in the United 
States. [The Petitioner] will be doing Research and Development on new products, [and acting as a] 
wholesaler and Retailer of products throughout the United States." Another passage 
described the future activities that the Beneficiary would perform "to start the business." On its face, 
the quoted correspondence acknowledged that the Petitioner had not been doing business in the 
United States for at least one year at the time of filing. 
The Petitioner did not report any gross receipts or sales on its 2014 income tax return (the only such 
return in the record). In the initial submission, the Petitioner identified Exhibit 17 as "Various Proof 
of Business Activities (Agreements, Contracts, Invoices and Receipts)." Some of the documents in 
Exhibit 1 7 relate to goods or services that the Petitioner purchased, rather than provided. Other 
documents relate to the subsidiary's business activities in China. These materials do not show that 
the Petitioner was doing business in the United States. Still other documents relate to sales activity 
less than one year before the filing date. 
The record contains two documents relating to business activity by the Petitioner (rather than foreign 
subsidiaries) more than a year before the filing date. A June 2015 contract relates to the Petitioner's 
sale of yew extract to a customer based in In September 2014, the Petitioner entered 
into an agreement to distribute a medical device. Although the Petitioner is a party to the agreement, 
the identified sales territory is China. The record does not establish to what extent, if any, the 
distribution agreement resulted in the Petitioner's provision of goods or services in the United States. 
The two documents described above relate to individual transactions, and do not suffice to show that 
the Petitioner engaged in the regular, systematic, and continuous provision of goods or services a 
year or more before the filing date. 
The Petitioner's seller's permit from the California State Board of Equalization is dated November 
18, 2015, exactly one year before the petition's filing date. The Petitioner did not show that the 
company was authorized to sell products in any U.S. jurisdiction prior to that date, or that sales 
commenced on the date on the permit. 
The Petitioner stated that it developed a dietary supplement "which had been launched to the market 
at the end of 2015." The record does not clarify this vague assertion or establish that sales began on 
or before November 18, 2015. Other products named on the company's "Production Business Plan/ 
Year 2015 to 2020" were introduced in 2016 or later. Documents submitted on appeal show that the 
Petitioner launched a U.S. marketing campaign in March 2017, several months after the filing date. 
The earliest consignment agreement submitted on appeal dates from September 2016. 
The record does not show that the Petitioner has been doing business - regularly, systematically, 
and continuously providing goods or services - in the United States for at least a year prior to the 
filing date. For this additional reason, the petition cannot be approved. 
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Matter of Y-B-P-G- Inc. 
V. CONCLUSION 
The Petitioner did not establish that the Beneficiary has been employed abroad, and will be 
employed in the United States, in a primarily executive capacity. The Petitioner also did not show 
that it has been doing business for at least a year prior to the filing date. 
ORDER: The appeal is dismissed. 
Cite as Matter <~[Y-B-P-G-Inc., ID# 1641291 (AAO Sept. 24, 2018) 
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