dismissed EB-1C Case: Cheese Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Q·P-G- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR.l5,2018 
APPEAL OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM l-140, IMMIGRANT PET!TlON FOR ALIEN WORKER 
The Petitioner, a cheese manufacturing and distribution business, seeks to pem1anently employ the 
Beneficiary as its production manager under the first preference immigrant classification for 
multinational executives or n1anagcrs. See Immigration and Nationality Act (the Act) 
section 203(b)(I)(C), 8 U.S.C. § 1!53(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 Petitioner did not 
establish, as required, that: (I) it will employ the Beneficiary in the United States in a managerial 
capacity; (2) the Beneficiary was employed abroad in a managerial capacity prior to his entry to the 
United States to work for the Petitioner as· a nonimmigrant; and (3) it has a qualifying relationship 
with the Beneficiary's foreign employer. 
On appeal, the Petitioner submits additional evidence and asserts that the Director ignored ample 
evidence of its qualifying relationship with the foreign employer, as well as evidence that the 
Beneficiary was employed abroad and would be employed in the United States in a managerial 
. I 
capacity. 
Upon de novo review, we will withdraw the Director's detennination that the Petitioner did not 
establish a qualifying relationship with the Beneficiary's foreign employer. 2 However, as the 
Petitioner has not overcome the two remaining grounds for denial, 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)(l)(C) of the Act. 
1 The Petitioner does not claim that the Beneficiary was employed abroad, or would be employed in the United States, in 
an executive capacity, so we will limit our review to his eligibility as a multinational manager. 
2 The submiited evidence demonstrates that the Beneficiary has sufficient ownership and control of both the Petitioner 
and the foreign entity to establish an affiliate relationship, as defined at 8 C.F.R. § 204.5(j)(2). 
Matter(}/ Q-P-G- LLC 
The Form l-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
otlicial of the petitioning United States employer which demonstrates that the beneticiary 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 aftiliate of the foreign employer, and that the prospective U.S. employer has 
been doing business tor at least one year. See 8 C.F.R. § 204.5(j)(3). 
"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 
IOI(a)(44)(A) of the Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services '(USClS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. Section IOI(a)(44)(C) of the Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director determined that the Petitioner did not establish that the Beneficiary would be employed 
in the United States in a managerial capacity. Specifically, the Director found that the Petitioner did 
not provide a sufficiently detailed description of the Beneficiary's day-to-day job duties or submit 
sufficient evidence to establish that the Beneficiary supervises subordinate professionals. 
On appeaL the Petitioner contends that the Director ignored "ample evidence" of the Beneficiary's 
employment in a managerial capacity, and emphasizes that the Beneficiary's knowledge and 
expertise in the cheese manufacturing business are fundamental to the company's success. The 
Petitioner provides a revised job description for the Beneficiary and evidence that two of his claimed 
subordinates have bachelor's degrees. 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be pertonned by the Beneficiary. Beyond the required description of the job 
duties, US CIS reviews the totality of the evidence when examining a beneficiary's claimed managerial 
or executive capacity, including 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 !actors that will contribute to understanding 
a beneficiary's actual duties and role in a business. Accordingly, our analysis of this issue will locus on 
the Beneficiary's duties as well as the company's stalling levels and reporting structure. 
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Mallero[Q-P-G- LLC 
A. Duties 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definition of managerial 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 managerial, 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. 
The Petitioner manufactures and distributes Latin American specialty cheeses and other non-cheese 
food products, and had approximately $201,000 in gross sales in 2015. At the time of filing, the 
Petitioner provided a lengthy narrative description of the Beneficiary's duties, including a 
breakdown of his typical workweek which provided the number of hours he spends on 14 ditTerent 
duties. Despite the Beneficiary's job title of "production manager," almost all of the tasks included 
in the hourly breakdowninvolved the sales and distribution functions of the company. For example, 
the Petitioner indicated that the Beneficiary will manage these two functions, analyze sales reports 
and set sales targets, provide pricing guidelines to sales department, review industry trends and sales 
strategies regularly, create new sales channels, represent the company to wholesalers and 
distributors, negotiate sales contracts with wholesalers and distributors, attend trade shows, engage 
in business development, and analyze the workforce needs of the sales and distribution department. 
At the same time, the narrative job description mentioned the Beneficiary's responsibility lor 
overseeing the production crew and manufacturing process. Similarly, the organizational chart 
submitted at the time of tiling (which we will discuss further below) showed that the Petitioner 
employed six employees involved in manufacturing, and no sales or distribution staff. Based on this 
initial evidence and the duties included in the Petitioner's job description, it appeared that the 
Beneficiary would spend his time primarily on sales and distribution activities, and that he would be 
required to perform all duties associated with these functions, including routine, non-managerial 
tasks. The Petitioner's initial descriptions were internally inconsistent and therefore did not credibly 
establish what proportion of the duties is managerial in nature, and what proportion IS non­
managerial. See Republic ofhanskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991 ). 
In a.letter submitted in response to the Director's request tor evidence (RFE), the Petitioner, noting 
that "important changes" had taken place since the tiling of the petition, stated that the Beneficiary 
would be responsible for supervising "every step of the Cheese making process as well as the 
assignment of responsibilities ... tor the sales and distribution department." The Petitioner included 
a list of 21 duties and the amount of time the Beneficiary spends on each duty. Many of the duties 
listed initially were included with different allocations of time. Newly added duties included the 
following: ' 
• Manages the purchase of raw materials and equipment; (2 hours per week); 
• :Monitors production, sales and distribution methods and techniques, checking 
biological, physical and chemical hazards, establishing critical limits, asstgnmg 
responsibilities and verification procedures . . . . (I 0 hours per week); 
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Mc111er ofQ-P-G- LLC 
• Establishes frequency and levels of Plant Sanitation and equipment maintenance. (1 
hour per week); 
• Ensures lhe availability of raw materials to guarantee the reach of weekly and 
monthly goals for the production and sales departments. (2-3 hours per week); 
• Oversees and supervises the \Vork of [the foreign entity] (1-2 hours per week); 
• Manages and supervises the work of in the Production Department 
(1-2 hours per week); 
• Oversees and manages the work of the Business Development Department in the 
person of (1-2 hours per week)[.] 
The Petitioner did not explain what "important changes" took place since the time of filing or the 
resulting revisions to the Beneficiary's claimed job duties, ahhough we note that the company had 
no claimed "sales and distribution department" at the time of filing. As discussed below, the 
Petitioner has not corroborated the staffing depicted in either of its submitted organizational charts 
and paid no wages in 2016. The Petitioner paid six contractors in 2016, half of whom earned less 
than $1500.00. Therefore, many of the newly claimed responsibilities for managing subordinate 
supervisors did not appear to reflect the Beneficiary's duties as ofthe date offi1ing in October 2016, 
and are inconsistent with the company's documented organizational structure. 
On appeal, the Petitioner submits another new job description which lists 28 duties under the 
following headings: manage the organization (45%); supervise and control the work of incom ing 
professional employees (5%); hire, fire or recommend those as well as other personnel actions (5%); 
exercises discretion over the day-to-day operations of the company (25%); promote and represent 
the company locally and abroad (10%): and oversee the company's strategic position and future 
strategies (I 0%). The entire description is comprised of vague, generic duties such as "manage 
general activities related to provision of services" and "monitor performance [of] the Company's 
stalT under her [sic] direct supervision," with no references to the specific type or business the 
Petitioner operates. Therefore, this description does not clarify the inconsistencies bet•veen the two 
prior job descriptions. Reciting the Beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the Beneticiary' s daily 
job duties. The actual duties themselves will reveal the true nature ol' the employment_ Fedin Bros. 
Co .. Ud v. Sava, 724 F. Supp. 1103, 1108 (E.D.N. Y. 1989), ajj'd, 905 F.2d 41 (2d. Cir. 1990). 
Whether the broad duties attributed to the Beneficiary qualify as managerial or executive in nature 
depends in large part on whether the Petitioner established that he would have sufficient subordinate 
staff to supervise and perform the day-to-day company activities he is claimed to manage. As 
discussed further below, the Petitioner has not shown its ability to relieve the Beneficiary from 
significant involvement in the operational tasks required to operate its business. 
The fact that the Beneficiary will manage a business as its senior employee does not necessarily 
establish eligibility for classincation as a multinational manager. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" managerial in nature. Section 
I Ol(A)(44)(A) of the Act. Even though the Beneficiary may exercise discre.tion over the Petitioner's 
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i\4alter ofQ-P-G- LLC 
operations and possess authority with respect to discretionary decision-making, the positiOn 
description alone is insutlicient to establish his employment will be in a managerial capacity. 
B. Staffing and Organizational Structure 
The Petitioner manufactures and distributes Latin American specialty cheeses and other non-cheese 
food prod uc.ts, with approx imate]y $2 01 ,000 in gross sales in 2015. The Petitioner indicated on the 
Form 1-140, tiled in October 2016, that it had eight employees. 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's initial organizational chart depicted the following structure: 
Beneficiary 
Production Manager/Shareho I der 
\ 
Administrator/Silent Partner/Shareholder 
I 
Cheese Manufacturing Team 
Nondairy Recipe Manufacturing Team 
ln response to the Director's request for evidence (RFE), the Petitioner provided the following chart 
identi(ying 11 subordinate employees by name: 
General Manager (Beneficiary) 
I \ 
Operation Manager Business Development Dept.~ 
I \ 
Administration Production 
(Benet1ciary) 
Cheese Dept. 
( 4 staft) 
Non-Cheese 
(3 staff) 
) 
Regional Sales 1 
I 
Regional Sales (5 retail chains) 
Nationwide Sales ( 10 retailers) 
In a supporting statement submitted with the RFE response, the Petitioner indicated that 
and are part-time employees and all other staff are contractors. The Petitioner stated 
that works on an "as needed basis." The record contains a letter from 
indicating that he has been a "silent partner" with a "diminished role" since deciding to pursue his 
veterinary career in 2015. 
The Petitioner's 2016 IRS Form 1065, U.S. Return of Partnership Income, shows that it paid no 
salaries or wages in 2016. The Petitioner reported $28,3 75 in contract labor expenses and paid the 
following individuals on IRS Form I 099, Miscellaneous Income: 
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Maller ofQ-P-G - LLC 
Nam e Title- Initial Chart 
N/A 
Cheese manufac turin g 
N/A 
Cheese manufactu ring 
N/A 
Chees e manufacturing 
Ti tle- RFE Chart 
Non-cheese production 
Chee se manufactu ring 
Cheese produ ction 
Prod uction Dept. Specialist 
NIA 
Non-cheese manufacturing 
Amount Paid 
$4184 .00 
$6874.00 
$5 127.54 
$ 1493.00 
$543.00 
$1482 .75 
Three individuals named on the initial organi zat ional chart , did not receive any doc umented 
payments from the Petition er in 20 16. While the Petitioner established that it paid a tota l of six 
contractors in 20 16, we can not determine which, ·or how man y, were act ually working for the 
company when the petition was filed in October 2016. Based on the low paymen ts, it is unclear 
wheth er any of the contractor s worked all year. 
The statutory definition of "manager ial capacity" allows for both "person nel managers " and 
"function manage rs." See section 101 (a)( 44)(A)(i) and (ii) of the Act. Personne l managers arc 
required to primarily supervise and con trol the work of other superv isory, professiona l, or 
managerial emp loyees. Contrary to the common understandin g of the wo rd " manager ," the s tatute 
plainly states that a "first line supe rvisor is not considered to be acting in a manageria l capaci ty 
merely by virtue of the supervisor's supervi sory duties unles s the employees supervised are 
professional. " 3 Secti on 10I(a)(44)(A)(iv) ofthe Act. 
The Petitioner's initial organizational cha rt depic ted the Beneficiary as a first-line superv isor of two 
teams o f non-professional food prod uction emp loyees. While the Petitioner later inserted tiers of 
supe rviso ry e mployee s into its organ izat ional chart , it has not show n that this multi-tier ed struct ure 
or those employees/contractors were in place when the petiti on was filed. Therefore, the Petitioner 
did not show that the Benefici ary would supervi se subo rdinate superv isors or manag ers. 
On appeal, the Petitioner claims that the Beneficiary supervises two subordinate prof-essional s -
and The Petitioner provide s revised and expanded j ob desc riptions for both 
individu als a nd evidence o f their educational crede ntials w ith profe ssional eva luation s. However, 
the Petitioner has not established that either indi vidua l actually worked for the company and under 
the Benefici ary's supervision at the time of filin g. a co-owne r and silent partn er, 
indicate s that he devotes his time to his veterinary profession and the Petitioner has not prov ided 
evidence of any payments to who it initiall y identified · as a member of its tood 
manufactur ing team, not as "regio nal dispatcher " as claimed on appea l. The record does not support 
3 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the Act, states that "[t)he term professio n 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
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Mauer o[Q-P-G- LLC 
the Petitioner's claim that the Beneficiary would supervise subordinate professional employees, or 
that he would act primarily as a personnel manager. 
The Petitioner also has not articulated a specific function that the Beneficiary will manage. The term 
"function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section !Ol(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneliciary will 
manage an essential function, it must clearly describe the duties to be perfonned in managing the 
essential function. In addition, the petitioner must demonstrate that "(I) the function is a clearly 
delincd activity; (2) the function is 'essentiaL' i.e., core to the organization; (3) the beneficiary will 
primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level 
within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary 
will exercise discretion over the function's day-to,day operations." lvfaller of G- Inc., Adopted 
Decision 2017-05 (AAO 1\ov. 8, 2017). 
The Petitioner generally indicates that the Beneficiary will manage its production, sales, and 
distribution activities. While these areas of responsibility are essential to the business, the record 
does not establish that he would primarily manage these areas, rather than performing non­
qualifying duties associated with the company's day-to-day operations in these areas. While a 
function manager need not manage a subordinate staff, the Petitioner cannot meet its burden if it 
cannot show that someone other than the Beneficiary is available to carry out tasks required for the 
continued operation of its manufacturing and wholesale distribution business. 
Section !Ol(a)(44)(C) of the Act requires that USCIS must take into account the reasonable needs of 
the organization in light of the overall purpose and stage of development of the organization if 
stalling levels are used as a !actor in detennining whether an individual is acting in a managerial or 
executive capacity. However, it is appropriate for USC!S 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. Family inc. v. I.J~'5CJS, 469 
F.3d 1313 (9th Cir. 2006); ,~)'.\'Ironies Corp. v. l.NS, !53 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of 
a company may be especially relevant when USCIS notes discrepancies in the record. See 
Syslronics, !53 F. Supp. 2d at I 5. 
At the time of tiling, the Petitioner's staff included the Beneficiary, a silent partner, and an unknown 
number of contractors who were all more likely than not involved in the manufacture of the 
Petitioner's specialty cheese products. It is not clear how these contractors, who collectively earned 
an amount equivalent to two full-time minimum wage workers, would have been sufficient to 
perform all of the work necessary to produce the Petitioner's products. The Petitioner did not submit 
evidence that it had subordinate sta!T to perlorm many of the actual day-to-day, non-managerial 
operations of the company, such as ordering ingredients and supplies, selling the products to 
wholesale customers, arranging for the shipment and delivery of its products to its customers, 
marketing the products, supervising the day-to-day production, and performing . routine 
administrative, clerical and bookkeeping duties. lt does not appear that the reasonable needs of the 
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Matter nlQ-P-C- LLC 
petitioning company might plausibly be met by the services of one full-time production manager (the 
Beneficiary) and a handful ofpart-time production contractors. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufticiently relieved from involvement in the day-to-day operations of the company , despite his 
senior position in the company hierarchy. Accordingly, the Petitioner has not met its burden to 
show that his duties would be primarily managerial in nature as of the date of filing. 
Ill. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The remaining issue in this case is whether the Petitioner established that the Beneticiary was 
employed abroad in a managerial capacity. The Director determined that the Petitioner did not 
provide a sufficiently detailed description of the Beneficiary's duties or provide sufficient evidence 
to establish that the Beneficiary supervised subordinate professionals. We agree with the Director 
that the Petitioner did not meet its burden to show that the Beneficiary performed primarily 
managerial duties. 
The Petitioner indicates that its l'orcign affiliate, where the Beneficiary served as "manager" or 
"administrator" is engaged in the same or similar activities as the petitioning entity. In a letter 
submitted at the time of tiling (written in Spanish, with Engiish translation) , the foreign entity's 
minority shareholder, stated that the Beneficiary perf'ormed the following duties: 
• Purchasing of products, raw materials, supply parts and components for the 
running of the business. (3 0%) 
• Development of new dairy produ .cts for wholesale. (15%) 
• Warehousing, production and bacteria control for dairy products. (20%) 
• Cyclical control ofthc inventory. (5%) 
• Cost control. (5%) 
• Supervision ofSHA Program .... (5%) 
• Development ofQuality Plan ISO 9001-2000. (20%) 
Based on these duties, it appears that the Beneficiary primarily performed non-managerial duties 
associated with purchasing, product development, product warehousing, inventory, and product 
quality. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial capacity. See. e.g., 
sections 101 (a)( 44 )(A) of the Act (requiring that one "primarily"' perform the enumerated managerial 
duties); 1\tfatrer (~(Church Scientology /nt ·1, 19 I&N Dec. 593, 604 (Comm'r 1988). 
Although the Director requested. a more detailed description of the Benetlciary's duties, the 
Petitioner's response to the RFE included a statement that appears to describe the duties that the 
Beneficiary has pert'ormed remotely as the foreign entity's majority shareholder and "consu.lting 
manager" since his transfer to the United States in 2009. Theref'ore, the new information did not 
shed additional light on the nature of his duties while employed abroad. 
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Maller (~lQ-P-G- LLC 
The Petitioner has also not provided an organizationa l chart that corresponds to the Beneficiary' s 
period of employment abroad with the foreign entity (January 2006 to April 2009). The 
organizational chart depi cts the Benefi cia ry as the foreign entity's "maj ority shareh older"4 and 
"internat ional liaison," and identifies his role with the Petitioner. Therefor e, we cannot determine 
whether the foreign entity, betwe en 2006 and 2009, had suffi cient ~taff to relieve the Beneficiary 
from performing primarily non-man ager ial duti es associated · with the production , sale, and 
distribution of the comp any 's produ cts. Furth er, the Petition er has not establish ed that the 
Beneficiary superv ised subordinate managers, supervi sors, or profe ssiona ls while employed abroad. 
The add ition al evid ence subm itted on appea l d oes not overcome our co nce rns regardi ng the 
primarily non-managerial duties listed in initial letter, nor doe s it add ress the staffi ng of 
the foreign company durin g the relevant perio d of tim e. 
The Petition er submi ts a new lette r ostensibl y s igned by It contains a job description 
which bears no resemblanc e to the one subm itted previously. Rather, it is very s imil ar t o the new 
U.S. job des cript ion provid ed on appe al. The descri ption lists 23 generic tasks under the following 
headings: "manage the company" (30%); "superv ises and controls the work of ot her p rofessiona l 
employees" ; (20%) , "hire, lire or recommend · those as well as other personnel actions" (5%) ; 
''exercises discre tion over the company's day -to-d ay opera tion s" (20%); " prom ote the compa ny and 
represent the Company" (10%); and , "oversee the Company's .strategi c position and future 
strategies " ( 15%). 
This letter, unlik e the previ ous letter from is written in English and n ot accompanied by 
a Spanish-lan guag e origin al or a transl ation certificate. In addi tion, t he signatures on the two letter s 
attrib uted to are clea rly differen t. The Peti tioner must reso lve these incons istencie s with 
independent, objec tive ev idence pointing to where the truth lies. Malfer (~( Ho, 19 I&N Dec. 582, 
59 1-92 (BIA 1988). As noted, the so le remaining job description ind icated that the Benefic iary 
perfor med prim ary non-managerial duti es while employed abroad , and the record rem ains deficient 
wit h respect to establishin g the staffin g of the foreig n entit y during the re levant tim e period. 
Acc ordingl y, the Petitioner has not overcome the Director's determi nation with respect to this basis 
for denial. 
lY. CONCLUSION 
The appeal must be dism issed as the Petitioner has not estab lished that i t the Beneficiary was 
employed abroad , or would be emplo yed in the United States, in a managerial capac ity. 
ORDER: The appeal is dismissed. 
Cite as Maller ofQ -P-G- LLC, ID# 10626 15 (AAO Mar. 15, 20 18) 
~The Petitioner provided evidence that the Beneficiary bec.ame the foreign entity's majority shareholder in 201 3. 
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