dismissed EB-1C Case: Business Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-1-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY26,2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a business consulting company, seeks to permanently employ the Beneficiary as its 
president 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. 
§ 1153(b)(l)(C). This classification allows a U.S. employer to pennanently 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: (I) the Petitioner will employ the Beneficiary in the United States in an 
executive capacity; and (2) the Petitioner's foreign affiliate has employed the Beneficiary in an 
executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director mischaracterized 
the nature of the Beneficiary's job duties and did not consider the reasonable needs of the 
organization in analyzing the Petitioner's staffing levels. The Petitioner maintains that the 
Beneficiary has been and will be employed in an executive capacity. 
Upon de novo review, we find sufficient evidence to establish that the Beneiiciary was employed in 
a qualifying executive capacity abroad. In reaching an adverse iinding, the Director reviewed the 
Beneficiary's job duties with the foreign entity without also taking into consideration other relevant 
factors such as the foreign entity's sta11ing levels, structure, and the nature of the business. After 
reviewing the record in its entirety, we determined that the Petitioner met its burden to establish 
eligibility with respect to the Beneficiary's foreign employment. However, the Petitioner has not 
overcome the second basis for denial and we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa available to a beneficiary who, in the three years preceding the tiling 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 attiliate. Section203(b)(I)(C) of the Act 
Matter of H-1-, LLC 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(!)(C) of the Act as a multinational executive or manager. This 
classification does not require a labor certification. 
The petition must include a statement from an authorized otlicial of the petitioning United Stales 
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. § 204.5G)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it would employ the Beneficiary in an 
executive capacity. The Director reviewed the Petitioner's description of the Beneficiary's job 
duties and found them to be "inflated, generalized and unrealistic" with few specifics regarding the 
Beneficiary's actual day-to-day duties. Further, he observed that there were a number of unresolved 
inconsistencies in the record with respect to the company's staffing levels and structure, therefore 
making it difficult to determine whether the company has sufficient employees to provide the 
services of the company and to relieve the Beneficiary from involvement in its day-to-day 
operations. 
On appeal, the Petitioner provides a more detailed breakdown of the Beneficiary's day-to-day tasks 
and asserts that the Director inappropriately injected his own business judgment when analyzing the 
Beneficiary's job duties. The Petitioner also explains that the perceived inconsistencies in staffing 
levels were due to normal staff turnover and internal restructuring that often occurs when a business 
is still in an early stage of development. 
The term "executive capacity" is defined as 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 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or 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. Section l 01 (a)(44)(C) of the Act. 
A. Staffing and Organizational Structure 
Before turning to the Petitioner's description of the Beneficiary's duties, we will address the 
Director's finding that the record contains unexplained inconsistencies with regard to the company's 
staffing levels and structure at the time of filing on September 14, 2015. Upon review, we agree 
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Maller of H-1-. LLC 
with the Director that the record contained an initial misstatement of the company's staffing levels 
that was not adequately resolved by the Petitioner's subsequent explanations. As such, we cannot 
determine whom the Petitioner actually employed at the time of filing. 
The Petitioner '·specializes in providing business consulting and start-up services in the United 
States, mainly to Hispanic entrepreneurs who wish to expand their Latin America-based business to 
the United States." The Petitioner claimed 13 employees on the Form 1-140 and stated in its letter in 
support of the petition that it "employs 13 individuals on a full time basis." 
The Petitioner indicated that the Beneficiary, as president, would oversee a commercial vice 
president, who supervises an IT director, a commercial director, and an administration director. 
Lower level employees identified by name on the Petitioner's organizational chart included an IT 
systems employees, a sales associate, an accountant, an administrative assistant, a facilities manager, 
a customer service employee, a receptionist, a maintenance employee and a custodian. The chart 
showed vacancies for three additional IT department staff and a finance manager. The Petitioner did 
not provide any recent evidence of wages paid to employees, but did provide IRS Form W-2s for 
2014 indicating that it paid a total of $24,000 in wages to three employees, none of whom were 
named on the 2015 organizational chart. 
The Director later requested evidence to corroborate the staftlng structure depicted in its September 
2015 organizational chart, including evidence of wages paid to employees in 2015, job descriptions 
for subordinate employees, and whether they work fi.dl-time or part-time. 
In response, the Petitioner reiterated that it employed four subordinate managers and various staff 
reporting to these managers at the time of filing. However, it explained that the initial September 
2015 chart "provided information not only about full-time and pat1-time employees, but also about 
contractors and unpaid interns who performed services for the company." The Petitioner submitted 
a "supplemental" September 2015 organizational chart that included hiring and termination dales for 
employees, contractors, and interns who worked in 2015, along with evidence of wages paid to 
employees. It also provided an updated August 2016 organizational chart showing its structure at 
the time it responded to the request for evidence. 
The Petitioner did not, however, sufficiently explain why it initially indicated that it had 13 full-time 
employees when that was clearly not the case. The Petitioner must resolve this inconsistency in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N 
Dec. 582, 591-92 (BIA 1988). Whereas the Petitioner previously identitled employees in the 
positions of accountant and an IT Systems employee, the revised 2015 chart identified those 
positions as "vacant" for the duration of that year. The new chart also shows that the previously 
identified "maintenance employee" was hired after the date of filing. The individuals holding the 
positions of administrative director, administrative assistant and receptionist are identified as 
"interns" on the revised organizational chart. The Petitioner submitted logs to show that these 
individuals reported to work, but these logs do not show that any of the three interns were providing 
services by the time the Petitioner filed this petition. Therefore, we cannot consider these six 
positions to be filled as of the date of ±!ling, as previously claimed. 
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Maller ojH-1-. LLC 
The Petitioner's IRS Forms 941, Employer's Quarterly Federal Tax Return, shows that the company 
had four employees as of September 12, 2015, after employing zero employees in the first quarter of 
2015 and one employee in the second quarter. Based on the hiring dates provided on the 
organizational chart, the Petitioner claims the following positions were filled when the petition was 
filed (with employee termination dates in parentheses): 
Commercial Vice President (12/31/15) 
Commercial Director 
Customer Service (9/31/15) 
Custodian (6/30/16) 
IT Director (12/31/15) 
Sales Associates' (2) (11/13/15; 12/31/15) 
Facilities Manager (12115/15) 
The Petitioner provided evidence that the commercial vice president and one of the sales associates 
each received an IRS Form I 099, Miscellaneous Income, in 2015, although this document does not 
confirm their dates of employment. The remaining six employees all received IRS Form W-2s in 
2015, but we cannot determine which four the Petitioner employed at the time of filing. Again, it 
appears that the Petitioner's staffing claims do not coincide with the supporting evidence submitted. 
The Petitioner did report 13 workers on its quarterly federal tax return for the fourth quarter of2015, 
but had only five employees in the first quarter of 2016. If the Petitioner ever did employ 13 
workers as claimed, this staffing level was short-lived and occurred sometime after the petition was 
filed. 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 explained that after 2015, it "no longer need[ed] the IT Director and his reports," and 
that it no longer needed the sales associate positions under the commercial director. The Petitioner 
explained that it created a number of new positions in 2016, including a vice president of operations, 
and a "Vice President of Migrants." The Petitioner submitted positon descriptions for subordinates 
which coincided with the 2016 organizational chart. However, it did not offer job descriptions for 
the employees who worked for the company at the time of filing, with the exception of the 
commercial manager, who was the only employee to remain with the company. His job description 
indicates that he "is responsible for a large portion of commercialization of customers' products or 
services by placing them in the marketplace." 
The Petitioner correctly observes that we must take into account the reasonable needs of the 
organization and that a company's size alone may not be the only factor in denying a visa petition 
for classification as a multinational manager or executive. See section 10l(a)(44)(C) of the Act. 
However, it is appropriate for USC IS 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 or non-executive operations of the company or a "shell 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. 200 I). The size of a company may be 
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The Petitioner claimed to have one sales associate at the time of filing and did not show any vacancies for this position. 
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Matter of H-1-, LLC 
especially relevant when USCTS notes discrepancies in the record. See Systronics, 153 F. Supp. 2d 
at 15. 
Here, Petitioner claimed that it required the Beneficiary's services as an executive to direct the 
overall operations of its consulting services business that employed 13 full-time employees. 
However, it appears that the Petitioner actually employed, at most, four employees and two 
contractors when the petition was filed, and it declined to provide position descriptions for these 
employees. We acknowledge that it may not be unusual for a company to undergo staffing and 
structural changes during its early years of operation, but the Petitioner has not clari tied how its 
operational needs changed to the extent that it went from having one employee to four employees to 
thirteen employees to five employees over the course of one year; it has not explained any changes 
in its product or service offerings that would support these fluctuations. 
There is simply insufficient evidence of who was employed at the time of filing or what their job 
duties were. Therefore, the record does not support a finding that the four to six person subordinate 
staff would relieve the Beneficiary from performing the operational and administrative duties 
associated with providing the company's consulting services or that it had a reasonable need for him 
to perform primarily executive duties when the petition was filed, particularly given the Petitioner's 
initial, misleading claim that it was fully staffed with 13 lull-time employees. 
B. Duties 
Turning to the Beneficiary's job description, 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. 
The Petitioner must show that the Beneliciary will perfom1 certain high-level responsibilities 
consistent with the statutory definitions 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. 
In response to the Director's request for evidence, the Petitioner described the Beneficiary's 
proposed duties as president as follows: 
• Oversee and manage key accounts and overall activities in the U.S. office, which 
includes developing new business with private and government clients, creating 
campaigns and promoting the company's products and services- Time dedicated 
30 percent; 
• Oversee activities of the pricing and sales of [the Petitioner's] services - Time 
dedicated j percent; 
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Malter of H-1-, LLC 
• Identify, develop and evaluate marketing strategy, based on knowledge of [the 
Petitioner's] objectives, market characteristics, and cost factors- Time dedicated 
15 percent; 
• Plan, direct & coordinate marketing policies and programs, including promotional 
activities in the United States- Time dedicated I 0 percent; 
• Analyze business developments and monitor market trends - Time dedicated 5 
percent; 
• Support and motivate the organization's statT- Time dedicated 5 percent. 
• Accomplish staff results by communicating job expectations, planning, 
monitoring, and appraising job results; and disciplining employees; developing, 
coordinating, and enforcing systems, policies, procedures and productivity 
standards- Time dedicated I 0 percent; 
• Review financial statements, sales and activity reports, and other performance 
data to measure productivity, goal achievement and to determine areas needing 
cost reduction and program improvement- Time dedicated I 0 percent. 
• Maximize the company's proflts and market share while ensuring customer 
satisfaction- Time dedicated I 0 percent. 
The Petitioner also addressed the components of the statutory deflnition of "executive capacity." 
The Petitioner emphasized the Beneficiary's authority to devise and implement policies and 
strategies, to make decisions, to hold ultimate responsibility for the company's reputation and 
financial success, and to direct "the local team of managers, supervisors and subordinates." 
However, the Petitioner also noted that the Beneficiary: "has a responsibility to the businesses that 
retain the Company's services"; "is responsible for the relationships with key business contacts, both 
domestically and internationally"; "must ensure client support with tailored business plans and 
value-added services to maximize the business's chances for success"; and will ensure the Petitioner 
is "adding value to clients' enterprises but also enhancing their entrepreneurial journey to and in the 
United States." 
As noted, the Director found that the duties were "signiflcantly inflated, generalized and unrealistic," 
with insuflicient information regarding the Beneficiary's expected day-to-day tasks. The Petitioner 
objects to this characterization, arguing that "the Service is injecting its questionable analysis of 
business operations into its decision." The Petitioner nevertheless provides an expanded description 
of the Beneficiary's proposed duties with examples of actions he took in the role of president 
subsequent to the date of tiling. 
While we disagree that the duties attributed to the Beneficiary are "unrealistic" or "significantly 
inflated," we nevertheless find the position description, when viewed in the context of the record as a 
whole, insufficient to establish that the Beneflciary would perform primarily executive duties. 
Rather, the description suggests that the Beneflciary would be directly involved in selling and 
providing business consulting services to the Petitioner's clientele. The Petitioner states that the 
Beneficiary will dedicate the largest portion of his time (30%) to overseeing and managing accounts, 
development new business with clients, creating campaigns and promoting the company's products 
and services. The Petitioner states on appeal that this includes participating in most meetings with 
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Matter of H-1-, UC 
clients, vendors, government entlties, and distributors as the company's representative and 
developing memoranda of understanding with customers. The Petitioner does not claim that other 
staff will assist him with these non-executive sales and business development activities. 
The Petitioner indicates that another 25% of the Beneficiary's time will be allocated to developing 
and evaluating marketing strategy, planning and coordinating marketing policies and programs, and 
monitoring marketing trend, and again, it is unclear who, if anyone, would have been available to 
assist him with these activities at the time the petition was filed given the deficiencies in the 
Petitioner's evidence of its starting levels and structure. These two areas of responsibility, taken 
together, would account for more than half of the Beneficiary's time, and we cannot conclude that 
either one would require the Beneficiary to perform executive-level duties. 
Further, we cannot overlook the Petitioner's statement that the Beneficiary will have responsibility 
to "ensure client support with tailored business plans and value added services" and for "adding 
value to the clients' enterprises." The Petitioner has not identified who, other than the Beneficiary, 
would be responsible for actually providing its extensive business consulting services offerings to 
company clients. Again, the Petitioner claimed to have a full-time staff of thirteen employees and 
actually employed no more than four employees and two contractors at the time of filing, leaving 
question as to how the administrative, sales, marketing, consulting, and other operational tasks were 
distributed among its employees. 
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 l0l(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 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." !d. 
Here, while the Beneficiary has an executive title and would direct the enterprise as its senior 
employee, the record does not establish that he would primarily focus on the Petitioner's broad goals 
and policies rather than spending a significant amount of time on selling its services, providing its 
services and performing other non-executive 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 101 (a)( 44)(B) of the Act (requiring that one 
"primarily" perform the enumerated executive duties); Malter of Church Scientolo&'Y In/ 'I., 19 l&N 
Dec. 593, 604 (Comm'r 1988). 
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Maller of H-1-. LLC 
In light of the staffing inconsistencies and deficiencies addressed and the number of non-qualifying 
duties that would be assigned to the Beneficiary, the Petitioner has not supp011ed its claim that the 
proffered position would be in an executive capacity. 
IlL CONCLUSION 
The petition must be denied and the appeal dismissed because the Petitioner did not establish that the 
Beneficiary would be employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-1- LLC, ID# 366085 (AAO May 26, 20 17) 
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