dismissed EB-1C Case: Capital Financing

U.S. Citizenship 
and Immigration 
Services 
In Re: 12871332 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 08, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a capital financing company, seeks to permanently employ the 
Beneficiary as an executive director 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 Nebraska 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. The Petitioner later filed a motion to reopen that the Director granted; however, upon review 
of additional submitted evidence, the Director determined that the petition would remain denied. The 
Petitioner then filed a motion to reopen and a motion to reconsider both of which the Director 
dismissed. The matter is now before us on appeal. 
On appeal, the Petitioner contends the Director ignored evidence reflecting the Beneficiary's 
supervision of subordinate executives and supervisors. The Petitioner asserts that the Director 
improperly concluded without a reasonable basis that the Beneficiary would be primarily engaged in 
non-qualifying operational level duties. The Petitioner also states the Director erred by requiring the 
Petitioner to establish that the Beneficiary would oversee subordinate managers and supervisors to 
qualify as an executive . 
Upon de nova review, we will dismiss the appeal. 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. 
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. § 204.5(j)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would act in 
an executive capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in a managerial capacity. Therefore, we restrict our analysis to whether the Beneficiary 
would be employed in an executive capacity. 
"Executive capacity" means an assignment within an 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 executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in an executive capacity. 
8 C.F.R. § 204.5(j)(5). 
A. Duties 
To be eligible as a multinational executive, the Petitioner must show that the Beneficiary performed 
the high-level responsibilities set forth in the statutory definition at section 101 ( a)( 44 )(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 executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary would 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). In determining whether a given 
beneficiary's duties would be primarily 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 in support letters that it had over eleven years of experience in the "lending and 
brokerage industry" and indicated that it was established "to provide working capital to growing 
entrepreneurial companies unable to secure new or additional bank financing." It also explained that 
it provided "interim-source financing allowing clients to achieve a more profitable and sound financial 
condition." The Petitioner further indicated that the Beneficiary would be transferred to the United 
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States to direct and oversee a joint venture between it and his foreign employer, a real estate 
development company based in China. In response to a request for evidence (RFE) issued by the 
Director, the Petitioner submitted the following duties for the Beneficiary as its proposed executive 
director: 
The Beneficiary will allocate 35% of his time in setting goals, setting marketing 
strategies, formulating policies and being involved in financial and budget 
development, including: 
• Establishing long-term and mid-term Company objectives, setting of business 
plans, and the design of business models of the company; 
• Assigning marketing strategies and reforming the business procedures, and 
strengthening our distribution and client channels; 
• Developing and executing financial budgets for marketing, sales, and public 
relations policies in order to achieve the company's financial goals; 
• Forming annual and/or quarterly budgeting plans for all key accounts; and 
• Exercising decision-making authority on all main issues concerning the company's 
business expansion in the U.S. markets including marketing and finances. 
[The Beneficiary] will allocate about 50% of his time in managing and directing the 
operations of marketing, sales and developing the new rebuilding business, including: 
• 
• 
• 
• 
• 
Supervising and directing marketing and sales plans and reviewing reports from 
management on a regular basis; 
Oversee all management results for creating effective sales strategies and govern 
proper marketing targets; 
Frame an effective marketing-sales procedure in an ongoing effort to cut 
transitional costs and to mirror market trends; 
With the support of lower level supervisors and support staff personnel, the 
Beneficiary will direct and guide the expansion of sales, customer service, and 
demographic/market analysis; 
[The Beneficiary] will inform and advise supervisors, and other personnel of 
noteworthy financial and market trends and make recommendations for appropriate 
actions; 
• Approve appropriate buy-sell agreements according to market tendencies; 
• Direct business operations to warrant that all services, sales and products match 
contracts or agreements; and 
• Direct and advise supervisors on how to recruit, train, position, dismiss, or promote 
marketing, sales and professionals to ensure business operation quality and 
effectiveness. 
The Beneficiary will allocate about 10% of his time in directing and coordinating 
actions between suppliers and the marketing and sales group: 
• Direct and organize with suppliers abroad when necessary and with the sales group 
of the parent company abroad in order to streamline company's sales channel; and 
• Direct and coordinate quality status issues with suppliers abroad and locally to 
ensure that the company's strong identity meets our client's requirements in the 
U.S. market. 
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The Beneficiary will allocate 5% of his time in networking and customer relation 
management until such time as he learns more about the market: 
• Act as the primary or secondary point of contact in relationship with all high value 
prospects and established accounts as well as strategic partners; 
• Help identify and acquire new customers, products and services through marketing 
and networking, and maintain executive level contacts and relationships with key 
customers, channel partners, industry influencers and decision makers; and 
• Responsible to ensure customer satisfaction and maintain friendly working 
relationships with key client partners. 
The Petitioner also submitted proposed weekly schedules for the Beneficiary listing his activities by 
the hour throughout a given week. However, the Petitioner provided two conflicting day-to-day 
proposed schedules for the Beneficiary leaving substantial uncertainty as to his actual duties. For 
instance, a first proposed weekly schedule indicated the Beneficiary would "interview real estate 
brokers," implement "budgetary control and recordkeeping systems," "review and make changes to 
account payable policies to improve collections," "direct human resources activities," and "prepare 
and present to [the] Board concerning activities, expenses, [and] budgets." In addition, it stated he 
would be tasked with recommending "customer service improvements," "review[ing] and approv[ing] 
new marketing plans," implementing a training program, "review[ing] and approv[ing] promotional 
campaigns from vendors," and "negotiat[ing] agreement[s] with new sales vendor[s]." 
However, the Petitioner submitted another materially different proposed weekly schedule setting forth 
several apparent non-qualifying operational-level tasks, such as him meeting with "a plumbing 
contractor to discuss job progress and change orders for a for new Auto dealer downtown," an 
"architect and City Inspector to review plans for downtown dealership," an "owner of a retail shop to 
discuss remodeling [a] store," and an "electrician to review and build out plans for [a] retail store." 
Likewise, this conflicting weekly schedule also indicated that the Beneficiary would "drive t~ I 
to meet [a] building inspector at [a] job site," "visit [a] dealership to inspect job progress," and "attend 
City Council meeting for rezoning a potential business investment." In sum, the latter proposed 
weekly schedule for the Beneficiary discussed duties of an apparent construction project manager 
handling all operational of his projects, rather than the former schedule and his overall asserted duties, 
which emphasized his setting of broader executive-level policies and goals. This material discrepancy 
leaves substantial question as to whether the Beneficiary would be primarily engaged in qualifying 
executive-level duties. The Petitioner must resolve discrepancies 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). 
Whether the Beneficiary would qualify as an executive employee turns on whether the Petitioner has 
sustained its burden of proving that their duties would be "primarily" executive. See sections 
10l(a)(44)(B) of the Act. Here, the Petitioner does not sufficiently document what proportion of the 
Beneficiary's duties would be executive functions and what proportion would be non-qualifying, but 
only vaguely indicates that all his duties would consist of executive-level tasks. However, the 
Petitioner lists several non-qualifying administrative or operational tasks in one proposed weekly 
schedule of the Beneficiary, but it does not quantify the time he would spend on these duties. For this 
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reason, we cannot determine whether the Beneficiary would primarily perform the duties of an 
executive. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Further, in denying the petition, the Director stated that the Beneficiary's stated duties were generic 
and indicated that it should submit a more detailed letter describing his actual daily tasks. The 
Petitioner did little to rectify this lack of detail as to the Beneficiary's proposed duties in support of 
two separate motions, and now on appeal, providing an overall duty description that is largely the 
same as those previously submitted. We agree with the Director's determination that the Beneficiary's 
duty description was overly generic and that it included little credible detail relating specifically to the 
Petitioner's claimed U.S. operations. In fact, the duty description, and record generally, do not provide 
a clear picture of the Beneficiary's proposed day-to-day activities, role within the business, or even 
the exact nature of the business. The Beneficiary's duty description could apply to any executive 
working within any company in any industry and it provides little insight into his actual day-to-day 
executive-level tasks. 
For instance, there is little detail to substantiate the Beneficiary's asserted performance of executive­
level duties, such as the "long and mid-term objectives" or "business plans" he would set, 
"marketing strategies" he would implement, "financial budgets for marketing, sales, or public 
relations" he would manage, or "key accounts" he would oversee. Likewise, the Petitioner did not 
detail the marketing or sales plans the Beneficiary would supervise, marketing or sales procedures he 
would "frame," customer service he would guide, "buy-sell agreements" he would approve, or 
"suppliers" and "sales groups" he would coordinate. 
Although we do not expect to the Petitioner to detail and document every executive-level task of the 
Beneficiary, the specificity leaves substantial uncertainty as to whether he would primarily perform 
executive-level duties. In fact, to the extent the Petitioner provides detail as to the Beneficiary's tasks 
in the United States, say in one conflicting proposed weekly schedule, this discusses apparent non­
qualifying operational tasks such as him meeting with plumbers, architects, electricians, city planners, 
and store owners on job progress, as well as visiting job sites for this same purpose. In contrast, there 
is little to no similar detail related to the Beneficiary's proposed executive-level tasks. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. F edin 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 would hold a senior position within the organization, or manage or direct 
a portion of the business does not necessarily establish eligibility for classification as a multinational 
executive within the meaning of section 101(a)(44)(B) of the Act. The Beneficiary may exercise 
discretion over some of the Petitioner's day-to-day operations and possess some requisite level of 
authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that his actual duties were primarily executive in nature. 
B. Staffing and Executive Capacity 
If staffing levels are used as a factor in determining whether an individual acted in an 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. 
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As discussed, the Petitioner contends that the Beneficiary acted in an executive capacity in the United 
States. 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" and 
"establish the goals and policies" of an organization or major component or function thereof Section 
10l(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. 
In response to the Director's RFE the Petitioner indicated the Beneficiary would oversee a president 
supervising a vice president who would in tum oversee a regional director. Lastly, this organizational 
chart reflected that the regional director supervised a business development officer. Later in support 
of the motion to reopen and motion to reconsider, the Petitioner provided an organizational chart 
showing a chief executive officer/director of sales overseeing a regional director, vice president, 
business development officer, and three "outsource[ d] brokers." Further this chart showed a president 
overseeing an "outsourced" vice president of fonding sources, an "IT manager," and an attorney. 
Therefore, as a primarily matter, the Petitioner has provided two materially different pictures of its 
organizational structure leaving substantial uncertainty as to whether it was sufficiently staffed and 
operational as of the date the petition was filed to support the Beneficiary in an executive capacity. 
Furthermore, the Petitioner did not submit sufficient supporting documentation to support its asserted 
organizational structure or to substantiate that it was sufficiently staffed and operational to support the 
Beneficiary in an executive capacity as of the date the petition was filed in May 2014. 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). For instance, the 
Petitioner submitted a 2013 IRS Form l 120S U.S. Income Tax Return for an S Corporation reflecting 
it earned only a modest $164,782 in revenue during the year directly preceding the petition. The 2013 
IRS Form 1120S also reflected that the Petitioner paid no wages or salaries during that year. The 
Petitioner claimed that it paid its "employees" using IRS Forms 1099, Miscellaneous Income and 
submitted internal payroll records asserting that it paid its claimed chief executive officer $114,269.13, 
the business development officer $22,284.67, and its president $66,073.66 during 2013. First, this 
total amount of salary, just under $203,000, exceeds its stated revenues of $164,782 in 2013. Further, 
beyond $22,285 in commissions listed in its expenses in the 2013 IRS Form 1120S, none of its asserted 
payments to independent contractors were shown, nor has it provided other objective documentary 
evidence to substantiate its payment of these independent contractors. Further, even if we accepted 
the 2013 IRS 1099s has sufficient and credible, these reflect payments to only three individuals, while 
its most recent organizational structure shows eleven asserted employees and contractors. 
On appeal, the Petitioner notes that the lack of wages and salaries reflected in its 2013 IRS Form 1120S 
is because compensation was paid in the form of commissions. However, as we have noted, the 
Petitioner's 2013 IRS Form 1120S reflects the payment of only approximately $22,000 in 
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commissions and only about $54,000 in total expenses, leaving substantial question as to the assertion 
that it paid several employees in the form of commissions. Again, despite filing subsequent motions 
and this appeal, the Petitioner submits no additional objective supporting documentation to corroborate 
the payment of wages and salaries to the asserted members of its organizational chart as of the date 
the petition was filed. 
These material discrepancies and insufficiencies leave considerable uncertainty as to whether the 
Petitioner was sufficiently staffed to support the Beneficiary in an executive-level capacity as of the 
date the petition was filed where he would be primarily focused on broad goals and policies rather 
than its day-to-day operations. Indeed, as we have discussed, the Petitioner provided a proposed 
weekly schedule reflecting the Beneficiary's involvement in several non-qualifying operational level 
duties and it is not clear based on its apparently limited staffing as of the date the petition was filed 
who would performed the operational aspects of the business. 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. at 582, 591-92. 
The submitted evidence also leaves question as to whether the Petitioner was sufficiently operational 
and financially solvent to support the Beneficiary in an executive capacity when the petition was filed 
in May 2014 and thereafter. For example, as mentioned, the Petitioner's 2013 IRS Form 1120S 
reflected that it earned only about $165,000 during that year, an amount not even sufficient to support 
its claimed payment of salaries and other claimed payments to contractors. In addition, the Petitioner's 
statements and the submitted evidence do not make the exact nature of the Petitioner's business 
operations sufficiently clear. For example, the Petitioner emphasizes that it specialized in securing 
additional capital and "interim-source financing" for clients and points to its employment of "brokers" 
on appeal, while it also discussed a proposed construction business run through a joint venture between 
it and the Beneficiary's foreign employer. 
In fact, the Petitioner emphasizes an investment of nearly $294,000 by the Beneficiary, the majority 
shareholder of the foreign employer, that would be injected into the business upon the approval of the 
petition. This amounts to nearly two times the annual revenue of the Petitioner in the year preceding 
the filing of the petition. Therefore, this leaves significant ambiguity as to whether the Petitioner was 
sufficiently operational and financially stable to support the Beneficiary in an executive capacity as of 
the date the petition was filed. Further, the Petitioner provides no additional evidence other than its 
2013 IRS Form l 120S to substantiate that it was operationally and financially capable of supporting 
the Beneficiary in an executive capacity. In sum, the preponderance of the evidence suggests that the 
Beneficiary would be transferred to provide sufficient capital to secure the Petitioner financially and 
to allow it to act as a vehicle in the United States for the foreign employer's claimed construction 
business activities. However, this would appear to demonstrate that the Petitioner was not sufficiently 
developed and operational to support the Beneficiary in an executive capacity as of the date the petition 
was filed. The Petitioner has not submitted sufficient evidence to demonstrate that it had a sufficient 
organizational structure to support the Beneficiary in an executive capacity where he would have been 
primarily focused on the broad goals and policies of the organization rather than the day-to-day 
operations of the enterprise. 
In sum, the Petitioner provided an ambiguous array of organizational structures and potential 
businesses. The Petitioner did not even clearly establish what business the Petitioner conducts, beyond 
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generic discussion of lending activities and a potential construction business through the foreign 
employer. Therefore, the Petitioner did not sufficiently demonstrate that the Beneficiary would act in 
an executive capacity. As such, we conclude that the Director was correct in denying the petition and 
in later not disturbing this denial after subsequent motions. 
ORDER: The appeal is dismissed. 
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