dismissed EB-1C Case: Business Management

U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF C-1-G-INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 14, 2019 
APPEAL OF NEBRASKA SER VICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
At the time of filing, the Petitioner was engaged in restaurant management and cosmetics trading, 
and held an interest in a limited liability company (LLC) engaged in real estate investment. The 
Petitioner seeks to permanently employ the Beneficiary as its president 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)(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 Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner would employ the Beneficiary in the United States in a 
managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director erred by putting too much emphasis on staff size, 
and by underestimating the number of full time employees. 
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 )(1 )(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 of C-1-G- Inc 
11. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it would employ the Beneficiary in a 
managerial or executive capacity. On appeal, the Petitioner does not claim that it would employ the 
Beneficiary in an executive capacity. Therefore, we restrict our analysis to whether the Petitioner 
would employ the Beneficiary in a managerial capacity. 
"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, 8 U.S.C. § l 10l(a)(44)(A). 
Based on the statutory definition of managerial 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 managerial 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 considering the nature of the prospective employment, some of the factors we examine are 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. 
A Staffing and Structure 
At the time of filing, the Petitioner described the company's staffing: 
As President, [the Beneficiary] currently supervises four subordinate department 
managers who in turn supervise eight employees within the company .... 
[The Petitioner] has two operating departments: Trading Department and Restaurant 
Department. Currently the company employs 13 full-time persons (including [the 
Beneficiary] himself). 
The Petitioner listed its employees in an organizational chart showing the following structure: 
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Matter of C-1-G- Inc 
President [the Beneficiary] 
Cosmetics Trading 
I 
Real Estate 
I 
Restaurant #1 
I 
Restaurant #2 
I 
Manager 
I 
Manager 
I 
Manager 
I 
Manager 
I 
Sales & Marketing Project Coordinator Assistant Manager/ Waiter 
Representative and Moderator Chef 
I 
Accountant/Cashier 
I 
Head Waiter & 3 Waiters 
The chart named specific employees for each position shown. The chart showed the head waiter as a 
position separate from, and subordinate to, the accountant/cashier, but the same employee held both 
positions. 
Quarterly tax returns and monthly payroll reports showed high turnover, with perhaps 25 employees 
during a quarter, but only 12 or 13 employees at any given time. Many of the employees worked 
part time, and all but four of them earned between $10 and $11 per hour. The Petitioner 
acknowledged that California's minimum wage for small employers was $10 per hour in 2017. 
Noting that "the majority of [the Petitioner's] employees received less than full-time pay," the 
Director requested additional evidence to show that the Petitioner has "sufficient staff to relieve the 
beneficiary from performing non-qualifying duties." In response, the Petitioner stated: 
The petitioner would like to clarify that what the petitioner meant were full time 
positions instead of full time employees. It's true that [the] majority of the 
petitioner's employees work part time. However, the petitioner's two ramen 
restaurants regularly employ at least ten employees at each location, and most of them 
work from 15-20 hours per week. . . . There are three employees working full time 
from the executive office, i.e. the President (the beneficiary) ... , the Administrative 
Manager ... , and the Administrative Assistant .... Therefore, the petitioner would 
regularly employ at least thirteen (13) full time equivalent employees. 
The above assertion is not consistent with the Petitioner's initial claims. The Petitioner did not 
initially claim to have over 20 staff working hours equivalent to 13 full time positions. Rather, the 
Petitioner initially claimed "13 full time persons," which matched the number of positions on the 
organizational chart. That chart showed no administrative manager and no administrative assistant. 
Also, the chart showed five named employees at one restaurant and two at the other, rather than "at 
least ten employees at each." The Petitioner's new assertions in response to the Director's request 
amount to a major revision, rather than a simple clarification, of the initial claims. 
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Matter of C-1-G- Inc 
The Petitioner submitted an employee list dated January 31, 2018, a year and a day after the 
petition's filing date: 
Administrative Manager, supervising: Administrative Assistant 
Restaurant #1 Manager, supervising: 3 Chefs 
6 Cashiers/Servers 
2 Kitchen Helpers 
Restaurant #2 Manager, supervising: 5 Chefs 
5 Cashiers/Servers 
3 Kitchen Helpers 
The Petitioner must meet all eligibility requirements at the time of filing the petition, and must 
remain eligible throughout adjudication. See 8 C.F.R. § 103.2(b)(l). Any changes that the 
Petitioner made to its personnel structure after January 30, 2017, cannot show that the Petitioner met 
eligibility requirements at the time of filing. See Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 
1998) (a petitioner may not make material changes to a petition that has already been filed to make a 
deficient petition conform to requirements); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971) (a beneficiary must be eligible at the time of filing, rather than relying on qualifying 
factors that emerged after the filing date). Because the Petitioner must continue to meet eligibility 
requirements, we can take note of post-filing developments that may affect eligibility. 
With respect to the newly created positions, the Petitioner stated that the administrative manager 
would "[m]aintain and safe guard company files and records" and supervise the administrative 
assistant. The Petitioner did not say where these activities would take place. The initial filing 
included photographs of five people working in the Petitioner's office, but the Petitioner no longer 
occupies the space shown. In November 2017, the Petitioner moved to a shared office space, the 
service agreement for which specified that the Petitioner had secured office space for one 
(unidentified) person. 
In July 2017, the Petitioner "phased out" its "cosmetics product trading business," and both of the 
employees relating to real estate (the manager and project coordinator) left the company. The 
Petitioner stated that a vice president (not on the initial organizational chart) now runs the real estate 
division through its majority ownership of an LLC, but that person's name does not appear in payroll 
records. (The name does, however, appear on escrow documents, identifying the individual as the 
president of the entity that sold the land to the LLC.) 
Furthermore, while the Petitioner contributed the majority of the LLC's capital, the Petitioner has 
only a 1/3 voting interest in the LLC. Because the Petitioner does not control the LLC, the LLC 
does not qualify as the Petitioner's subsidiary as the regulations define that term. See 8 C.F.R. 
§ 204.50)(2). In the absence of a qualifying relationship, the activities of the LLC lie outside the 
scope of this petition. 
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Matter of C-1-G- Inc 
We also note that the Petitioner's activity in real estate appears to have been limited to a single 
project. Through the LLC, the Petitioner invested $626,000 in a 2.28-acre parcel of land in 2013, 
but the record does not indicate that the Petitioner had any subsequent active involvement in the 
development of the land, as opposed to the passive act of continuing to own the property. The 
purchase price of the land consumed the Petitioner's entire capital contribution to the LLC, leaving it 
without resources to make further investments. A development company that owned a 45% share in 
the LLC built two houses on the land, which went on the market in late 2017. As of January 2018, a 
contracted broker remained in charge of marketing the homes. The record reflects no other real 
estate investment by the Petitioner or its subsidiary LLC. 
The Director denied the petition, noting that most of the Petitioner's employees are part time 
employees and concluding: "The staffing of the petitioner at the time of filing does not appear to be 
sufficient to enable the beneficiary to act in an executive capacity, and to relieve the beneficiary 
from primarily performing non-qualifying operational tasks." 
On appeal, the Petitioner asserts that the Director underestimated the number of full time employees. 
The Petitioner submits a table showing that 10 employees earned an amount at least equivalent to a 
full time in January 2017. One of those employees, a waiter, worked part time, but the Petitioner 
added the waiter's tips to his hourly wage, for a total that exceeded a month's full-time pay at 
minimum wage. Nine full time employees are more than the Director estimated, but fewer than the 
Petitioner's initial claim of 13 full time employees. Because of frequent employee turnover ( one 
employee earned a total of $45), the record does not unambiguously show that the Petitioner had 
more than the initially claimed 13 employees at the time of filing. 
The Petitioner claims that the Beneficiary had authority over four managers at the time of filing. 
The record, however, does not show that the four managers were all primarily engaged in 
management activity as claimed. The Petitioner states that one of its two restaurants was "in full 
capacity operation" at the time of filing, a tacit acknowledgment that the other restaurant was not. 
The Petitioner's real estate activity in January 2017 appears to have consisted of co-owning a two­
acre lot, then under development by a business partner, and the Petitioner was soon to abandon its 
cosmetics business. It therefore appears that the petitioning organization is, in some ways, less 
complex now than it was at the time of filing. 
The Petitioner is correct that staffing size alone cannot determine eligibility or ineligibility, but it is 
one factor that bears consideration. Federal courts have generally agreed that, in reviewing the 
relevance of the number of employees a petitioner has, USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to 
support a manager." 1 Furthermore, it is appropriate for USC IS to consider the size of the petitioning 
1 Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
5 
Matter of C-1-G- Inc 
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. See, e.g., Systronics Corp. 
v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
B. Duties 
In conjunction with the size of the company, we must also examine the Beneficiary's intended 
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). 
In the same way that the Petitioner has provided inconsistent information about its staffing, the 
Petitioner has submitted two different and conflicting accounts of the Beneficiary's duties and the 
time he devotes to each. Because the Beneficiary has been working for the Petitioner in the United 
States since 2013, the list of duties is not merely prospective, relying on speculation about what the 
Beneficiary might do when he arrives; it should reflect what he has already been doing for years. 
Initially, the Petitioner listed the duties summarized below, with the approximate percentage of time 
devoted to each: 
Make decisions and plans for marketing, development and management; 20% 
expand operations; set goals for financial growth 
Direct financial management 15% 
Direct day-to-day management of the restaurants· assign work to sales staff 15% 
Review quality assurance procedures 10% 
Make personnel decisions 10% 
Make decisions regarding supply chain management for cosmetics products 10% 
Direct interviews with customers; coordinate with parent company to 10% 
provide warranty services m the U.S. market; negotiate with maJor 
customers 
Assign work to subordinates; evaluate performance 5% 
Make plans to train managers in the parent company's quality assurance 5% 
systems 
The list of duties indicated that the Beneficiary would manage functions such as marketing and 
finance, but the Petitioner employs no staff dedicated to those functions. Therefore, the Petitioner 
did not show how the Beneficiary would manage those functions without personally performing 
them. Of particular concern, however, is the fourth item summarized above. It reads, in full: 
Review and complete the company operating procedures and processes regarding the 
provisions of quality assurance for sales and after-sale technical services. Introduce 
to the U.S. subsidiary the parent company's quality assurance technologies and 
Matter of C-1-G- Inc 
software solutions and establish technical standards and requirements for product 
repair and replacement. 
The ninth item includes related information: 
Make plans for training to managers and periodically update their technical 
knowledge and enhance skills to apply the parent company's unique quality assurance 
technologies, solutions, and systems. 
It is not evident how "after-sale technical services" and "product repair" are relevant to cosmetics 
sales, real estate investment, or restaurant operations, and the Petitioner did not identify any 
subordinate employees who would be responsible for providing those services. With regard to "the 
parent company's quality assurance technologies and software solutions," the Petitioner described its 
parent company as "a major architectural designer and constructor" that "provides specialized 
interior and exterior design services." The Petitioner established no connection between its own 
business activities and those of its foreign parent company, and did not explain what "quality 
assurance technologies and software solutions" would apply equally to architectural design and to 
the Petitioner's various activities. 
Because the items discussed above have no apparent relation to the Petitioner's claimed business 
activities, their inclusion in the Beneficiary's job description (which the Beneficiary himself signed, 
in his capacity as president of the petitioning entity) raises serious questions regarding the accuracy 
and credibility of the job description. 
After the Director requested further evidence, the Petitioner submitted a different job description, 
with item headings condensed below: 
Formulate and/or modify operational policies and procedures .... 20% 
Communicate with the subordinate managers ... and review reports by 20% 
subordinate managers .... 
Develop, improve, and direct strategies to support objective[s] and polic[ies] 10% 
.... 
Monitor the performance of each operation unit and provide guidance .... 15% 
Develop operational budget . ' arrange all kinds of payments for 15% 
operational expenses, and exercise cost control .... 
Develop personnel plans ... , defin[e] job duties and requirements, and 20% 
mak[ e] decisions in hiring or firing. 
The above job description is worded more generally than the initial version, but it is demonstrably 
different from the earlier version. The differences are not limited to the absence of the now­
abandoned cosmetics business. For instance, the amount of time devoted to personnel actions has 
doubled, and there is no longer any reference to direct interaction with customers. The references to 
Matter of C-1-G- Inc 
quality assurance systems are gone, as well, but these changes do not explain why the Petitioner 
included them in the earlier version of the job description. 
The demonstrable inaccuracies in the first job description do not compel or imply the conclusion that 
the second job description is more accurate or reliable. The Petitioner has submitted two conflicting 
job descriptions without explanation, each with deficiencies described above. As a result, the record 
lacks a reliable, detailed job description to show that the Beneficiary's duties at the petitioning 
company have been, and will continue to be, primarily managerial in character. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-1-G-Inc, ID# 2521213 (AAO Mar. 14, 2019)