dismissed EB-1C Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-A-C- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 24, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PET!TlON: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a general construction and remodeling business, seeks to permanently employ the 
Beneficiary as its general manager under the first preference . immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
pennanently transfer a qualified toreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that it will employ the Beneficiary in a managerial capacity, or that the 
Beneficiary was employed abroad in a managerial or executive capacity prior to his entry to the 
United States as a nonimmigrant. 
On appeal, the Petitioner submits additional evidence and asserts that the Director did not apply the 
preponderance of the evidence standard to the facts presented. 
Upon de novo review, we will withdraw the Director's finding that the Petitioner did not establish 
that the Beneficiary was employed abroad in a managerial or executive capacity. 1 However, as the 
Petitioner has not overcome the remaining ground 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 )(I )(C) of the Act. 
1 On appeal, the Petitioner provides additional evidence which clarifies the nature, scope, and structure of the foreign 
entity's operations during the Beneficiary's period of employment abroad and confirms the Beneficiary was primarily 
responsible for supervising subordinate managers who had subordinate staff to perform the day-to-day operations of the 
business. The evidence is sufficient to establish that he was more likely than not employed abroad in a managerial or 
executive capacity. 
Mauer uf A-A-C- Inc 
The Fonn I-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 tor 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 afliliate 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. § 204.5G)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The primary issue in this matter is whether the Petitioner established that the Beneficiary will be 
employed in the United States in a managerial capacity. The Petitioner does not claim that he will 
be employed in an executive capacity. Therefore, we restrict our analysis to whether the Beneficiary 
will be employed in a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential li.mction 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 opcratioi1s of the activity or function tor which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A). 
The regulation at 8 C.F.R. § 204.5G)(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, U.S. Citizenship and Immigration Services (USCIS) 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 factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the 
Petitioner's stalling levels and reporting structure. 
A. Duties 
On the Form 1-140, the Petitioner stated that the Beneficiary's duties as general manager will be to 
"plan, instruct & direct operations of company & department managers; oversee all administrative & 
operational ti.mctions of company, etc." 
In response to the Director's request for a detailed description of the Beneficiary's specific job 
duties, the Petitioner added that the Beneficiary will: "ensure that the proposed Department manager 
and/or supervisors implement ·[his] decisions, strategies and managerial orientated issues"; "give 
instruction and direction to the department managers [who J will in turn instruct, manage and guide 
supervisors"; and set guideline~ and parameters for the management of the various departments. 
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Maller of A-A-C-Ine 
Finally, in response to a second request for evidence (RFE) in which the Director again asked the 
Petitioner to provide a detailed description of the Beneficiary's role and the amount of time he 
spends on specific tasks, the Petitioner listed the following duties: 
I. Management & Supervision- 70% 
• Oversee daily operations for the business unit, direct projects from conception 
to completion. 
• Review the project and schedule deliverables and estimate costs. 
• Coordinate and direct workers and subcontractors. 
• Review work progress on a daily basis. 
• Oversee subcontractors and vendors to ensure quality standards are met. 
• Oversee all onsite and offsite projects. 
2. Administrative- 20% 
• Create schedules for construction crew and ensure all projects are fully staffed. 
• Create and manage the budgets for each project, including supplies, materials 
and labor. 
• Insure the creation and implementation of a strategy designed to grow the 
business. 
• Maintain constant communication with customers throughout process to ensure 
satisfaction. 
• Negotiate tenns of agreements, draft contracts, and obtain permits and licenses, 
if required. 
• Direct management of the business, responsible to hire and tire employee staff. 
• Budget reporting. 
3. Maintain Financial Records and Accounts- I 0% 
• Maintain manual and computerized record systems. 
• Balance monthly statements and maintain financial accounts. 
• Select tools, materials and equipment and track inventory. 
While the Petitioner's initial description of the Beneficiary's duties emphasized his overall 
management of the company and his oversight of department managers with their own subordinate 
staff, the longer description provided in response to the second RFE indicates that the Beneficiary 
would be directly involved in the sale and delivery of the company's products and services. The 
latter description is supported by the Petitioner's organizational charts, which, prior to the denial of 
the petition, indicated that he would be supervising general contractors and tile, carpet, granite and 
floor installers, rather than "department managers" with their own teams of subordinates 2 
2 As discussed further below, the Petitioner submits a new organizational chart on appeal which shows that the 
Beneficiary supervises seven employees with managerial titles and does not directly supervise contractors or installers. 
With the exception of a project manager. none of these position titles appeared on the previous charts and the Petitioner 
did not identify any department managers at the time of filing. 
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Matter ofA-A-C- Inc 
We agree with the Director's determination that the administrative and tlnance-related 
responsibilities assigned to the Beneficiary include a number of non-qualifying duties, such as 
balancing and maintaining accounts, selecting tools and materials, inventory-related duties, drafting 
contracts, and scheduling and budgeting customer projects. While such duties are undoubtedly 
necessary for the company's operations, the Petitioner has not indicated how they qualify as 
managerial functions or why such duties would not be assigned to subordinate staff such as an 
administrative assistant, accountant, project manager, or purchasing employee. In addition, the 
Petitioner submitted an invoice for a remodeling contract undertaken by the company which 
identifies the Beneficiary as the "salesman" responsible for selling the company's services, a non­
managerial responsibility that is not expressly mentioned in his description. 
The Petitioner indicated that the Beneficiary would spend the majority of his time directly 
overseeing the scheduling and delivery of the company's construction and remodeling projects, 
including oversight of the daily work activities performed by the company's contractors and 
vendors. Although the Petitioner's organizational charts submitted prior to the denial of the petition 
identified one project manager, the Petitioner did not identify this individual as a supervisory 
employee and the Petitioner indicated that the Beneficiary would be significantly involved in the 
delivery of its projects to customers. The Petitioner has not established how this responsibility 
qualifies as managerial under the statutory definition. To establish that the Beneficiary qualifies in a 
managerial capacity based on his personnel management duties, the Petitioner must show that he 
would 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." 3 Section 
JOI(a)(44)(A)(iv) ofthe Act. 
We do not question whether the Beneficiary had the authority to oversee contractors, nor do we doubt 
that the Petitioner makes extensive use of contracted labor. However, the Petitioner has not shown 
that first-line supervision of these non-professional workers qualifies as a managerial job function. 
On appeal, the Petitioner asserts that "the preponderance of the evidence in this matter clearly 
justifies a Managerial position despite the fact of the Service not being satisfied with the job 
description."· The Petitioner also maintains that the company could not achieve revenues of $1.8 
million without "competent and proper management" and notes that "no other party has averred to 
be in the Management role of the business of the Petitioner." However, the first two organizational 
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 IOI(a)(32) of the Act, states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers. physicians. surgeons, and teachers in elementary or 
secondary schools. colleges. aca~emies, or seminaries." Here, the Petitioner does not claim that any positions 
subordinate to the Beneficiary require a bachelor's degree, nor has it submitted evidence of educational credentials for 
any subordinate staff. 
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Mauer of A-A-C- Inc 
charts the Petitioner submitted showed a company president with supervisory authority over the 
Beneficiary. As noted, those charts depicted the Beneficiary himself as a first-line supervisor of 
installers and other general contracting staff, and the Petitioner's description of his duties was 
consistent with this type of work. 
The fact that the Beneficiary will contribute to the management of the business as one of its senior 
employees does not necessarily establish eligibility for classification as a multinational manager. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions 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 duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USC!S, 469 F.3d 13 I 3, 
I3I6 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Here, even though the Beneficiary may exercise discretion over some aspects of the Petitioner's 
operations, the position description, for the reasons discussed, did not establish that his actual duties 
would be primarily managerial in nature. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. Section 101 (a)( 44)(C) of 
the Act. 
As noted, the Petitioner operates a remodeling and general contracting business. According to its 
lease, it has a 16,896 square foot premises used for wholesale and retail sale of flooring and cabinets. 
The Petitioner stated on the Form 1-140 that it had nine employees. In response to the first RFE, it 
submitted an organizational chart with eleven positions. The chart shows that the Beneficiary 
reported to the company president and directly supervised all other employees, including an office 
administrator, project manager. two general contractors, a painter, a tiler, a tiler/framer. a carpet 
installer, and a granite installer. 
The Petitioner submitted copies of three IRS Forms W-2, Wage and Tax Statement, for 2015 
showing that it paid the Beneficiary, the president, and one person who does not appear on the 
organizational chart and presumably was no longer with the company at the time of tiling in October 
2015. The Petitioner also issued IRS Forms I 099, Miscellaneous Income, to seven contractors in 
2015, but did not provide evidence that it paid the office administrator or one of the general 
contractors during that year. 
The statutory deflnition of "managerial capacity" allows tor both "personnel managers" and 
"function managers." See section IOI(a)(44)(A)(i) and (ii) of the Act. As noted, personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, 
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Moller of A-A-C- Inc 
or managerial employees. And as noted above, 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." Section IOI(a)(44)(A)(iv) of the Act. The Petitioner did 
not establish that the Beneficiary's first-line supervision of non-professional general contractors and 
installers qualifies him as a personnel manager, and, as noted, the Petitioner indicated that such 
supervisory duties would require a large portion of his time. Although the initial organizational 
chart identified a project manager, the record does not contain a job description for this position or 
indicate that this individual supervised a subordinate staff. 
The organizational chart submitted on appeal indicates that the Petitioner relies on a "dispatch and 
installers manager" to oversee all subcontractors such as carpet, floor, and tile installers, framers, 
painters, plumbers, fabricators, and electricians, and also employs a project manager, site 
superintendent, financial and sales manager, oftice manager, warehouse manager, and marketing 
manager. This chart, submitted in October 2017, bears little resemblance to the chart the Petitioner 
submitted in response to the Directors' second RFE in July 2017, which was very similar to the initial 
chart. For example, the Petitioner indicates that the individual previously identified as the company 
president now reports to the Beneficiary in the role of "financial and sales manager," an employee 
previously identified as a general contractors is now the "warehouse manager," and an employee 
previously identified as a tiler now serves as the "dispatch and installers manager." The Petitioner did 
not submit an explanation for the significant changes that occurred during this three-month period. 
Nevertheless, the new organizational chart submitted on appeal, even if accurate as of the date it was 
submitted, cannot overcome the Director's finding that the Petitioner did not establish the 
Beneficiary's eligibility as a multinational manager at the time of filing. A 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). A petitioner may not make 
material changes to a petition in an effort to make a deficient petition confom1 to USCIS 
requirements. See Malter of1zummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 
The Petitioner has not articulated a claim that the Beneficiary qualifies, in the alternative, as a 
function n1anuger. The tcnn ••function 1nanagcr~:. 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 li.mction" within the organization. See section IOI(a)(44)(A)(ii) of the Act. If a 
petitioner claims that a beneficiary will manage an essential function, it must clearly describe the 
duties to be performed in managing the essential function. In addition, the petitioner must 
demonstrate that"(!) the function is a clearly defined activity; (2) the function is 'essential,' i.e., 
core to the organization; (3) the beneficiary will primarily manage, as opposed to pe!form, 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." Mal/er of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 20 17). The 
Petitioner has not identified an essential function that the Beneficiary would manage but instead 
focuses on his overall management of the company. 
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Malter of A-A-C- Inc 
The Petitioner correctly observes that we must take into account the reasonable needs of the 
organization and that a company's size alone may not be the only factor in denying a visa petition 
for classitication as a multinational manager or executive. See section IOI(a)(44)(C) of the Act. 
However, it is appropriate for USC IS 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. USCIS, 469 F.3d 1313 (9th 
Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The Petitioner has provided sufticient evidence that it had staff to provide the company's remodeling 
services, but has not documented that it had staff in place to perform other non-managerial duties, 
such as routine supervision of these contracted employees, marketing and selling the company's 
services, staffing the company's large showroom, purchasing equipment and materials, and 
performing day-to-day administration and accounting tasks. The Petitioner currently claims to have 
a superintendent, dispatcher and installer manager, oftice manager, marketing manager, warehouse 
manager, and financial and sales manager, but has not 'shown that these positions were staffed at the 
time of tiling or that it had statT available, other than the Beneficiary and the company president, to 
perform day-to-day tasks associated with these aspects of the business. For this reason, the 
Petitioner has not shown how it was able to relieve the Beneficiary from significant involvement in 
non-managerial duties when the petition was filed. 
The Petitioner cites Nat1 Hand Tool Corp. v. Pasquare/1, 889 F.2d 14 72, n.5 (5th Cir. 1989) in 
support of its claim that the small size of a petitioner will not, by itselt~ undermine a finding that a 
beneficiary will act primarily in a managerial or executive capacity. First, we note that the Petitioner 
has not furnished evidence to establish that the facts of the instant petition are analogous to those in 
Nat 'I Hand 7iwl Corp., where the Fifth Circuit Court of Appeals decided in favor of the former 
Immigration and Naturalization Service (INS). We interpret the regulations and statute to prohibit 
discrimination against small or medium-size businesses. However, consistent with both the statute 
and the holding of Nat 'I Hand Tool Corp., the Petitioner is required to establish that the 
Beneficiary's position consists of primarily managerial duties and that it will have sufficient 
personnel to relieve the Beneficiary from performing operational and/or administrative tasks. Like 
the court in Nat'/ Hand 7(w/ Corp., 889 F.2d at 1472, n.5., our holding is based on the conclusion 
that the Bencliciary would not be primarily performing managerial duties and ·does not rest on the 
size of the Petitioner. 
The Petitioner further refers to an unpublished decision in which we determined that a beneficiary 
met the requirements of serving in a managerial and executive capacity for L-1 classification even 
though he was the sole employee. The Petitioner has not established that the facts of this petition are 
analogous to those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that our 
precedent decisions are binding on USClS, unpublished decisions are not similarly binding. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufficiently relieved from involvement in the day-to-day operations of the company, despite his 
·senior position in the company hierarchy and the Petitioner's extensive use of contractors. 
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Matter of A-A-C-Ine 
Accordingly, the Petitioner has not met its burden to show that his duties would be primarily 
managerial as of the date of tiling. 
III. QUALIFYING RELATIONSHIP 
Although not addressed in the Director's decision, we find that the Petitioner has not submitted 
sufficient evidence to establish that it has a qualifying relationship with the Beneficiary's foreign 
employer. To establish a "qualifying relationship," the Petitioner must show that 
the Beneficiary's 
foreign employer and the proposed U.S. employer are the same employer (a U.S. entity with a 
foreign otlice) or related as a "parent and subsidiary" or as "affiliates." See § 203(b)(l )(C) of the 
Act; see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"): 
The Petitioner claims to be a subsidiary of 
located in Egypt. Initially, the Petitioner stated that owns 51% of 
its shares. However, it submitted a copy of its 2015 Form 1120S, U.S. Income Tax Return for an S 
Corporation, which states at Form 1125-E that the Beneficiary owns 100% of the company~ but 
indicates at Schedule K-1 that a is the sole owner. 
The record does not contain copies of the Petitioner's stock certificates, stock ledger, or other 
primary evidence of its ownership. 
In response to the Director's second RFE, the Petitioner explained that owns I 00% of 
which acquired 51% of the Petitioner in 2012, and later acquired the remaining 49% of its 
shares in 2014. The Petitioner did not submit any supporting documentation to corroborate its claim 
that owns In fact, the Beneficiary's 20 I 5 individual income tax return shows that 
he reported income generated by as pass-through income from an S corporation, which 
indicates that he owns at least a portion of this company. Absent evidence that owns 
the Petitioner has not 
established that it has a qualifying relationship with 
Based on the incomplete documentation submitted by the Petitioner and potential inconsistencies in 
the record regarding the actual ownership of both the Petitioner and additional evidence would 
be needed to show that the foreign entity indirectly owns the Petitioner as claimed. For this 
additional reason, the petition cannot be approved. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that it the Beneficiary would be 
employed in the United States in a managerial or executive capacity, or that it has a qualifying 
relationship with the Beneficiary's foreign employer. 
ORDER: The appeal is dismissed. 
Cite as kfalfer of A-A-C- Inc, ID# 1181965 (AAO_ Apr. 24, 2018) 
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