dismissed EB-1C Case: Cargo Airline

U.S. Citizenship 
and Immigration 
Services 
In Re : 23104155 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 15, 2022 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, a cargo airline, seeks to permanently employ the Beneficiary as its director of 
infrastructure and general services under the first preference immigrant classification for multinational 
managers or executives. 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 that the record did not 
establish that the Petitioner will employ the Beneficiary in the United States in an executive capacity. 
The matter is now before us on appeal. 8 C.F.R. § 103 .3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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 orto its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
II. ANALYSIS 
The Petitioner stated that it intends to employ the Beneficiary in an executive capacity . The Director 
determined that the Petitioner had not met its burden of proof in this regard. 
"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 
To establish that a beneficiary is eligible for immigrant classification as a multinational executive, a 
petitioner must show that the beneficiaty will perform all four of the high-level responsibilities listed 
at section 101 (a)( 44 )(B) of the Act. The petitioner must then 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. USCJS, 469 F.3d 1313, 1316 (9th Cir. 2006). In 
determining whether the beneficiary's duties will be primarily executive, we consider the description 
of the job duties, the company's organizational structure, the duties of the 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 the 
beneficiary's actual duties and role in the business. 
The Beneficiary has held the title of director of infrastructure and general services since 201 7, first 
with his employer in Venezuela 1 and then, since 2019, with the Petitioner in the United States as an 
L-lA nonimmigrant. 2 The proffered salary is $60,000 per year. The Petitioner initially stated: 
[The Beneficiary] will direct the strategic planning, provide the leadership of the 
project and set performance objectives, manage the construction projects and supervise 
the managers of the different areas the progress of the remodeling of the company and 
decide on commercial solutions .... He will directthe management of the organization 
and all the main components and functions of the organization. 
Responding to a request for evidence, the Petitioner submitted a longer job description for the 
Beneficiary, including the following excerpts: 
• [D]irect the Management of all activities related to the remodeling, construction 
and maintenance of the company's infrastructure .... 
• [D]eveloping and managing the progress of construction projects, supervising, 
leading and supporting all managers involved in these works .... 
• Direct the management and personnel in charge of the general maintenance of the 
company's air conditioning, premises, laptops, servers, water tanks and power 
plants .... 
• [D]irecting and evaluating the work of the entire organization to achieve the 
established objectives .... 
1 The record is inconsistent as to whetherthepetitioning U.S. employer is an affiliateora branchofthe foreign entity that 
previously employed the Beneficiaty. Affiliates are separate legal entities with shared ownership, whereas a branch is a 
separate office of the same legal entity. See 8 C.F.R. § § 204.5(i)(2) and2 l 4.2(1)(1 )(ii). The Petitioner's share certificates 
state that the Petitioner was "incorporated under the laws of the State of Florida," but an organizationalcha1i refers to the 
Petitioner as the ___ of the company in Venezuela, and the appellate brief calls the Petitioner "a commercial 
office for the Venezuelan airline," "registered in Florida as a foreign profit corporation." We need not explore this issue 
here because other issues decide the outcome of the appeal, but any future filings should include stronger evidence ofthe 
relationship between the Petitioner and the company in Venezuela. 
2 The benefits of anl-140petition(permanentresidence) are distinct from those provided byanL-lApetition(temporaiy 
non-immigrant status), such that the grantofL-lAstatus doesnotrequire approval of arelatedl-140petition. Mahalaxmi 
AmbaJewelcrsv.Johnson, 652 F. App'x 612,618 (10th Cir. 2016). 
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Initially, the Petitioner indicated that it relies on outside contractors for "remodeling, construction, 
maintenance and inspection services," and asserted that the Beneficiary "will be directly responsible 
for managing the outsourced companies." The Petitioner also specified that the Beneficiary will 
"[d]irect the management of the general maintenance of the company's air conditioning, laptops, 
servers, water tanks and electrical plants." But the record does not support these assertions. 
The lease agreement for the Petitioner's business location indicates that "contractors hired directly by 
[the] Landlord" are responsible for maintenance of air conditioning and electrical systems. The 
Petitioner has not established any direct contractual relationship between the Petitioner and the 
contractors hired by the landlord. The lease further indicates that the Petitioner "will name an 
employee to supervise the maintenance jobs" performed by those contractors, but the Petitioner has 
not established that such supervision rises to an executive level of authority, or that the "maintenance 
jobs" constitute a major function of the petitioning organization. 
The Petitioner initially submitted copies of service agreements with five contractors who provide 
services not specified in the lease agreement. Two of those companies provide "consultation services 
related to construction projects"; a third company provides "general construction services." A fourth 
company periodically maintains the Petitioner's garage doors, and the fifth company is a janitorial 
service. The agreements in the record do not show that any of these companies participate in "general 
maintenance of the company's air conditioning, laptops, servers, water tanks and electrical plants." 
At the time of filing, the Petitioner did not identify any other contractors said to be under the 
Beneficiary's supervision. 
After the Director requested more information about the Beneficiary's subordinates, the Petitioner 
submitted an organizational chart naming a director of operations; cargo & logistics manager; airport 
and commercial manager; project and purchasing manager; and sales executive. These titles are 
consistent with management-level positions, but the chart does not show that any of those employees 
are subordinate to the Beneficiary. Rather, those individuals and the Beneficiary report to the 
Petitioner's legal affairs manager, who in tum reports to the president. The chart therefore does not 
support the assertion that the Beneficiary "direct[ s] the management of the organization and all [its] 
main components and functions." 
The organizational chart limits the Beneficiary's authority to seven newly named contractors. The 
chart does not show any of the contractors previously named in the initial submission. Agreements 
with the newly named contractors specify functions such as "Sales, Cargo and Logistics 
Management," "sales," and "accounting and taxes." These functions are not among the 
responsibilities listed in the Beneficiary's own job description. Three of the contracts date from after 
the petition's Octo her 2019 filing date, and therefore do not reflect the Beneficiary's responsibilities 
at the time of filing. See 8 C.F.R. § 103.2(b)(l) (requiring eligibility at the time of filing). The 
Petitioner does not explain why a contractor in charge of "Sales, Cargo and Logistics Management" 
would report to the Beneficiary, rather than to the sales executive and the cargo and logistics manager 
named on the Petitioner's organizational chart. 
Most of the submitted agreements specify that the contractors' employees "will at all times be under 
the control and supervision of the Independent Contractor." The agreement with one contractor 
indicates that the "Chairman of the Board of Directors or Area Manager" may assign "other activities" 
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to the contractor. The Beneficiary holds neither of these titles. The Petitioner did not cite any clause 
in the agreements to show that the Beneficiary has, or will have, executive authority over the 
contractors' management. All the contractor agreements were signed by either the Petitioner's 
president or its legal affairs manager, both of whom rank higher than the Beneficiary on the 
organizational chart. Because the Beneficiary already holds the position named in the petition, 
evidence of past activities is relevant to the nature of his duties and responsibilities. 
The Director denied the petition, statingthatthe submitted evidence does not show thatthe Beneficiary 
directs the management of the petitioning organization or any of its major components or functions. 
The Petitioner's appeal repeats the descriptions of the responsibilities of the second group of 
contractors, but the Petitioner does not explain why the initial submission refe1red to an entirely 
different group of contractors. Also, the Petitioner does not establish that the responsibilities of the 
second group of contractors relates to the Beneficiary's stated areas ofresponsibility. 
Counsel for the Petitioner states: 
[The Beneficiary] will continue to establish the goals and policies of the organization 
by having constant and direct management of the activities ranging from: 
• Cargo handling 
• Compliance with the safety parameters dictated by TSA 
• Suspension and rescheduling of flights according to scheduled itineraries and 
emergency loads 
• Compliance with stipulated delivery times up to the coordination of the correct 
functioning of the equipment of the equipment and machinery 
• The aircraft 
• The infrastructure of the headquarters 
• The personnel working in each of these areas. 
The assertion that the Beneficiary "will continue" to perform the listed tasks indicates that he already 
performs them, but the list submitted on appeal differs significantly from the previous versions of the 
Beneficiary's job description, and no official of the petitioning company has attested to the new list. 
Counsel's unsupported assertions are not evidence. Matter of Obaigbena, 19 I&N Dec. 533,534 n.2 
(BIA 1988) ( citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). 
Specifics are an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature. See generally 6 USCIS Policy ManualF.4(C)(4), https://www.uscis.gov/policy­
manual. Here, some of the Beneficiary's stated duties lack specific detail, such as "the responsibility 
of directing and evaluating the work of the entire organization to achieve the established objectives." 
Other duties and responsibilities have more detail, but are not consistent with the evidence provided. 
The Petitioner has stated that the bulk of the Beneficiary's duties relate to "construction and 
maintenance of the company's infrastructure" and its "expansion," but he has no identified 
subordinates within the company, and the two non-overlapping sets of identified contractors do not 
appear to be involved in such construction and expansion. The Petitioner has not established the 
connection between the contractors and the Beneficiary's stated responsibilities. 
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Also, the Petitioner has not established the nature or extent of the Beneficiary's authority over the 
contractors, or shown that such authority rises to the level of an executive capacity, which entails 
"directing the management" rather than simple oversight or supervision. While the Petitioner may 
rely on contractors to perform some tasks on behalf of the company, the Petitioner has not established 
that the tasks delegated to contractors under the Beneficiary's authority amount to a major function of 
the petitioning organization. 
III. CONCLUSION 
The submitted descriptions of the Beneficiary's duties lack detail and consistency, and the Petitioner 
has submitted conflicting, changing accounts of who works under the Beneficiary's authority. The 
Petitioner's assertion that the Beneficiary "will direct the management of the organization and all the 
main components and functions of the organization" is not consistent with the organizational structure 
described in the record, and the Petitioner has not submitted sufficient evidence to establish that the 
Beneficiary will direct the management of any major function of the organization through contractors. 
We conclude that the Petitioner has not met its burden of proof to establish that it seeks to employ the 
Beneficiary in a primarily executive capacity. Therefore, the Petitioner has not shown that the 
Beneficiary is eligible for the immigrant classification sought in this proceeding. 
We will therefore dismiss the appeal. 
ORDER: The appeal is dismissed. 
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