dismissed EB-1C Case: Cabinet Import/Export

U.S. Citizenship 
and Immigration 
Services 
In Re: 17497330 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL. 01, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner , an importer , exporter , and seller of cabinets , seeks to employ the Beneficiary as a 
manager 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) . 
The Director of the Texas Service Center denied the petition , concluding the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity in the United 
States. On appeal , the Petitioner resubmits a previously provided support letter and asserts that the 
Beneficiary would be employed in a managerial and an executive capacity . 
In these proceedings, it is the Petitioner 's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. 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. § 204.5(j)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in a managerial or executive capacity in the United States . 
As a preliminary matter, the Petitioner has ambiguously discussed the Beneficiary qualifying as both 
a manager and an executive on the record. For instance, on appeal, the Petitioner states that the 
Beneficiary would "employ the beneficiary as an Executive Manager," while prior to this appeal it 
mostly indicated that he would be employed in a managerial capacity. Further, the Petitioner cites the 
portion of the Act applicable to executive capacity on appeal, but also refers to the Beneficiary's 
"managerial" role. 
A petitioner claiming that a beneficiary will perform as a "hybrid" manager/executive will not meet 
its burden of proof unless it has demonstrated that the beneficiary will primarily engage in either 
managerial or executive capacity duties. See section 10l(a)(44)(A)-(B) of the Act. While in some 
instances there may be duties that could qualify as both managerial and executive in nature, it is the 
petitioner's burden to establish that the beneficiary's duties meet each criteria set forth in the statutory 
definition for either managerial or executive capacity. A petition may not be approved if the evidence 
of record does not establish that the beneficiary will be primarily employed in either a managerial or 
executive capacity. As such, the Petitioner's lack of clarity as to the Beneficiary's proposed role in 
the United States leaves initial uncertainty as to whether he qualifies. Regardless, we will analyze 
both capacities in this decision. 
"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). 
"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 101 (a)( 44 )(B) of the 
Act. 
When examining the managerial or 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 a 
managerial or executive capacity. 8 C.F.R. § 204.5(j)(5). 
A. Duties 
To be eligible as a multinational executive or manager, the Petitioner must show that the Beneficiary 
will perform the high-level responsibilities set forth in the statutory definition at section 
10l(a)(44)(A)(i)-(iv) and (B)(i)-(iv) of the Act. If the record does not establish that the offered 
position meets all four of these elements, we cannot conclude that it is a qualifying managerial or 
executive position. 
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If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial or 
executive-level 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). In determining whether 
a given beneficiary's duties will be primarily managerial or executive, we consider the Petitioner's 
description of the job duties, the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve the 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. 
The Petitioner stated that it is engaged "in the business of import, export, and sales of our products 
and quality specialized services." However, the Petitioner did not clearly explain the nature of these 
products or services in its support letters but submitted invoices and other supporting documentation 
reflecting the sale and installation of kitchen cabinetry. The Petitioner also provided an array of 
proposed titles for the Beneficiary, listing him as a "manager" in the Form 1-140, Immigrant Petition 
for Alien Worker, while also referring to him elsewhere on the record as an "executive manager" and 
a "marketing manager." The Petitioner's apparent confusion as to the Beneficiary's position title again 
leaves uncertainty as to his proposed role in the United States. The Petitioner must resolve 
inconsistencies and ambiguities in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner listed the following proposed duties for the Beneficiary in the United States: 
1) Overseeing and coordinating commercial operations. 30% 
2) Establishing appropriate contact and business relationships with customers, 
distributors and others, reviewing terms and negotiating most favorable deals for 
the partnership. 20% 
3) Monitoring consumer preference and possible marketing opportunities, assuring a 
correct positioning within the market and proper promotion of the product or 
service offered. 30% 
4) Assigning sales, setting goals, and analyzing sales statistics to determine sales 
potential and inventory requirements. 20% 
In addition to this duty description, the Petitioner set forth other tasks for the Beneficiary throughout 
its support letters, indicting that he would be responsible for the following while "already in the United 
States 1": 
• Diversify and expand coverage to United States and around the world markets, 
• Accomplished important goals and participated in services for introduction of 
products and quality specialized services in large public works in the United States, 
• Elaborating final pricing program for the products, standard operational procedures 
for unique specialized services, 
• Develop contacts with existing and potential clients, 
1 The petition was filed March 29, 2018. 
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• Sales presentation such as negotiation of sales contracts, including terms, pricing 
and volume, 
• Technical proficiency and consults with prospective clients regarding the use of 
company products, 
• Investigation of potential product improvements, 
• Expenses and performance quota, 
• Investigating and evaluating new business opportunities pertaining to alternative 
channels and customers, 
• Marketing intelligence to sales management and participation in the development 
of sales forecast and strategies, 
• Direct and manage the Petitioner's financial, legal, trade, administrative, and sales 
activities, 
• Establish financial budget, plans and goals, 
• Review and monitor sales activities performed by the Petitioner's sales manager, 
• Develop and execute the necessary policies to effectively direct the company's 
team of management, and 
• Ensure the coordination of the company and lower level managers. 
In a request for evidence issued in April 2020 the Director stated that the Beneficiary's duties were 
vague and appeared to reflect that he would "act in a sales/promotion capacity." The Director 
requested that the Petitioner expand on the Beneficiary's proposed duties as necessary to establish that 
he would primarily perform managerial or executive-level duties in the United States. The Petitioner 
provided no additional description of the Beneficiary's duties in response to the Director's RFE. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. § 103.2(b)(l4). 
The Petitioner has submitted a duty description and supporting documentation indicating that the 
Beneficiary would be primarily engaged in non-qualifying operational level duties in the United 
States. For instance, the Beneficiary's duties discuss him monitoring customer preferences, 
identifying marketing opportunities, promoting products, and analyzing sales and inventory data. 
Likewise, the Beneficiary's duties also mention him developing customer contacts, performing sales 
presentations, using technical proficiency to assist clients, meeting quotas, and gathering marketing 
intelligence. As correctly noted by the Director, several of these duties suggest the Beneficiary's direct 
involvement in the sale and promotion of its products, rather than the delegation of these lower-level 
non-qualifying duties to his claimed subordinates. 
Supporting documentation provided by the Petitioner only farther reinforces the indication that the 
Beneficiary would be primarily engaged in non-qualifying operational tasks. As noted, the Petitioner 
asserted that the Beneficiary was already in the United States when the petition was filed and provided 
several invoices related to these activities. For instance, the Petitioner submitted several invoices 
reflecting the Beneficiary's name issued by different vendors for the purchase of inventory near to the 
date the petition was filed. Likewise, in response to the RFE in 2020, the Petitioner also submitted 
similar invoices including the Beneficiary's name showing him ordering inventory. This substantial 
supporting documentation only farther supports a conclusion that the Beneficiary was, and would be, 
primarily engaged in performing non-qualifying operational level duties, such as selling the 
company's products, ordering inventory, coordinating installations, amongst other similar tasks. In 
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contrast, there is no supporting evidence to support that the Beneficiary was primarily delegating these 
non-qualifying tasks to his asserted subordinates. 
Whether the Beneficiary is a managerial or executive employee turns on whether the Petitioner has 
sustained its burden of proving that their duties are "primarily" managerial or executive. See sections 
10l(a)(44)(A) and (B) of the Act. Here, the Petitioner does not document what proportion of the 
Beneficiary's duties would be managerial or executive functions and what proportion would be non­
qualifying. The Beneficiary's duties and provided supporting documentation include managerial and 
executive tasks as well as administrative and operational tasks but the Petitioner does not quantify the 
time he would spend on these different duties. For this reason, we cannot determine whether the 
Beneficiary would primarily perform the duties of a manager or an executive. See IKEA US, Inc. v. 
US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
In addition, the generic descriptions of the Beneficiary's proposed U.S. tasks do not credibly 
demonstrate that he would have been primarily engaged in qualifying managerial or executive-level 
tasks. For instance, the Director emphasized in the request for evidence (RFE) that the Beneficiary's 
duty description was vague and lacked detail. However, the Petitioner only resubmitted the same duty 
description in response to the RFE. We agree that the provided duty description lacks credible 
specifics to substantiate the Beneficiary's primary performance of qualifying managerial or executive­
level duties. For example, the Petitioner did not detail or provide supporting documentation to 
substantiate the "important goals" the Beneficiary "accomplished," the "ambitious expansion 
program" he would lead, the operation procedures he would put place, or the financial matters he 
would direct. Likewise, the Petitioner did not articulate or document the "sales activities" the 
Beneficiary would oversee, policies or strategies he would implement, or marketing initiatives he 
would establish. In fact, the Petitioner's various support letters, including the brief submitted on 
appeal, do not clearly articulate the specific industry that it operates in, and questionably refers to the 
real estate and "public works" industries. The Beneficiary's stated managerial and executive-level 
duties could apply to any managerial or executive-level employee acting in any business or industry 
and his duty description includes little detail as to his specific daily tasks and does it include discussion 
of its actual business. 
Although we do not expect the Petitioner to articulate and document every managerial or executive 
task to be performed by the Beneficiary, it is reasonable to expect that it would provide sufficient 
detail and documentation to corroborate his performance of qualifying duties, particularly since it 
asserted he was already acting in his role in the United States when the petition was filed in 2018 and 
when it responded to the RFE in 2020. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily managerial or executive in nature, otherwise meeting the definitions 
would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Even though the Beneficiary holds as a managerial or executive-level title and manages or directs a 
portion of the business does not necessarily establish eligibility for classification as a multinational 
manager within the meaning of section 10l(a)(44)(A) or (B) of the Act. The Beneficiary may exercise 
discretion over the Petitioner's day-to-day operations and possess the requisite level of authority with 
respect to discretionary decision-making; however, the position description alone is insufficient to 
establish that his actual duties would be primarily managerial or executive in nature. 
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B. Staffing, Managerial and Executive Capacity 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, we take into account the reasonable needs of the organization, in light of its overall 
purpose and stage of development. See section 101 (a)( 44 )( C) of the Act. 
As previously discussed, the Petitioner does not clearly articulate whether the Beneficiary would be 
employed in a managerial or executive capacity on appeal but does vaguely indicate that he would 
oversee subordinate managers. As such, we will first analyze whether the Beneficiary would be 
employed in a managerial capacity. The statutory definition of "managerial capacity" allows for both 
"personnel managers" and "function managers." See section 10l(a)(44)(A) of the Act. Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, 
or managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that a "first line supervisor is not considered to be acting in a managerial capacity merely 
by virtue of the supervisor's supervisory duties unless the employees supervised are professional." Id. 
If a beneficiary directly supervises other employees, the beneficiary must also have the authority to 
hire and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F .R. 
§ 204.5(j)(2). Since the Petitioner does not explicitly assert that the Beneficiary would qualify as a 
function manager, we will only analyze whether he would be employed as a personnel manager. 
In the denial decision, the Director pointed to the fact that the Petitioner did not submit an 
organizational chart or duties for its subordinate employees, as requested in the RFE. On appeal, the 
Petitioner does not remedy this material evidentiary deficiency and still has not provided an 
organizational chart identifying its employees, the Beneficiary's place within the structure, nor the job 
titles, duties, educational levels, or salaries of his claimed subordinates. For this reason, we cannot 
determine whether the Beneficiary would have supervised supervisory, managerial, or professional 
subordinates as of the date the petition was filed. Indeed, the Petitioner does not specifically articulate 
how the Beneficiary would qualify as a personnel manager. Further, the Petitioner submitted a 2017 
IRS Form 1120S, U.S Income Tax Return for an S Corporation reflecting that it did not pay any wages 
or salaries in the year immediately preceding the date the petition was filed. Similarly, the Petitioner's 
most recent state quarterly employer's wage tax report from the fourth quarter of 2020 submitted in 
response to the RFE showed that it employed only one individual beyond the Beneficiary at that time. 
Therefore, the Petitioner has not established that it employed supervisors, managers, or professionals 
subordinate to the Beneficiary when the petition was filed or at any time thereafter. As such, the 
Petitioner has not established that the Beneficiary would be employed as a personnel manager under 
an approved petition. 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). Again, the Petitioner must resolve inconsistencies and 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
For similar reasons, the Petitioner did not demonstrate that the Beneficiary would be employed in an 
executive capacity. The statutory definition of the term "executive capacity" focuses on a person's 
elevated position. Under the statute, a beneficiary must have the ability to "direct the management" 
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and "establish the goals and policies" of an organization or major component or function 
thereof Section 101(a)(44)(B) of the Act. To show that a beneficiary will "direct the management" 
of an organization or a major component or function of that organization, a petitioner must show how 
the organization, major component, or function is managed and demonstrate that the beneficiary 
primarily focuses on its broad goals and policies, rather than the day-to-day operations of such. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the organization, major component, or function 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. 
As we have discussed previously in this decision, the Petitioner provided supporting documentation 
and duties indicating the Beneficiary's wide involvement in the provision of non-qualifying 
operational tasks directly related to the sale and promotion of its products, the acquisition of its 
inventory, amongst other similar tasks directly related to the provision of goods and services to 
customers. Further, as noted, the Petitioner provided no evidence to substantiate that it had sufficient 
employees as of the date the petition was filed to elevate the Beneficiary to an executive capacity and 
to primarily relieve him from non-qualifying operational tasks. The Petitioner also did not clearly 
articulate or document the Beneficiary's asserted executive-level duties, such as the broad goals and 
policies we would, or was, responsible for. In fact, the evidence overwhelmingly reflects the 
Beneficiary's substantial engagement in non-qualifying tasks, including the numerous invoices 
reflecting his apparent acquisition of inventory. Therefore, the Petitioner has not demonstrated that 
the Beneficiary would be employed in an executive capacity. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would be employed 
in a managerial or executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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