dismissed EB-1C Case: Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 10792737 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 30, 2020 
Form 1-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner, a consulting firm, seeks to permanently employ the Beneficiary as its president 1 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. § l 153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity; (2) the Beneficiary has been employed abroad in a managerial or 
executive capacity; and (3) the Beneficiary engaged in qualifying employment abroad for at least one 
year during the three years preceding the filing of the petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. 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 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(i)(3). 
1 On the petition fonn, the Petitioner lists the Beneficiary 's intended job title as "Engineering Consultant ," which is not an 
executive position . Elsewhere in the record, the Petitioner refers to the Beneficiary as the president of the company. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it seeks to employ the Beneficiary in a 
managerial or executive capacity. The Petitioner specifies that it intends to employ the Beneficiary in 
an executive capacity, and therefore we need not consider the separate requirements relating to a 
managerial 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. 
To establish that a beneficiary is eligible for immigrant classification as a multinational executive, a 
petitioner must show that the beneficiary will perform all four of the high-level responsibilities set 
forth in the statutory definition at section 10l(a)(44)(B) of the Act. If a petitioner establishes that the 
offered position meets all four elements set forth in the statutory definition, 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. USCIS, 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. 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
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 101(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function as the owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. 
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The nature of the Petitioner's business will affect the roles of those running the company, and 
determine whether the duties of top officers rise to the level of a primarily executive capacity. But the 
record does not provide complete or consistent information about what the company does. As the 
Director noted, a letter from the affiliated foreign entity refers to the U.S. entity largely in the future 
tense, referring to what the company will do rather than what it already is doing, and stating that the 
Beneficiary "will lead [the Petitioner] to profitability with[in] the first year"; but this letter is dated 
January 2019, more than four years after the incorporation of the petitioning U.S. entity. 
The Petitioner's tax returns indicate that the company provides "management and technical consulting 
services," but the record does not include any details about those services, the clients receiving them, 
or how the Petitioner provides them. At the time of filing in January 2019, the Petitioner claimed on 
the petition form to have three employees. The Petitioner's federal income tax returns for 2015 
through 2018 do not reflect the payment of any salaries apart from nominal sums to the Beneficiary in 
2016 and 2017. The returns show the following figures: 
Officer compensation 
Outside services/ contractors 
Consulting Fees 
2015 
$0 
87,000 
2016 
$9123 
106,124 
2017 
$3259 
62,000 
2018 
$0 
78,550 
The Petitioner submits no documentation regarding the contractors and consultants whom the 
Petitioner has paid. The above figures show that the Petitioner has paid for outside consulting services, 
but not that the Petitioner has provided such services, despite identifying itself as a consulting service. 
The tax returns show income every year, but do not document the source of that income. 
The Beneficiary's job description, submitted with the petition, indicates that the Beneficiary will 
"[r]eview the sales reports, inventory reports, and cash flow statement to support his decisions about 
upgrading product orders, eliminating products, and or purchasing new product lines," but the 
Petitioner does not explain how operating a consulting service entails "products" and "inventory." 
The description also indicates that the Beneficiary "will review the financial statements of each 
department," but the record does not show that the company has departments, or can have departments 
in the apparent absence of any employees. The description also states: "The President's main purpose 
is to oversee and direct the financial operations, and the business expansion, selection of location for 
retail operations, and oversee the productivity of the other executive staff." The Petitioner does not 
describe these "retail operations" or document their existence, nor does the Petitioner show that the 
company has any "other executive staff' subject to the Beneficiary's authority. The individual who 
signed this description claims the title "Engineering Manager." 
The Petitioner also submits documentation relating to~----------' a wholesaler of 
electronics, to which the Beneficiary devotes 20% of his time as an officer of the company.~ 
not part of a qualifying organization with the Petitioner. The petitioning entity owns 20% of L_J 
The other four shareholders of Odo not have any ownership interest in the petitioning entity; the 
Beneficiary is the Petitioner's sole s.hareholder. Therefore, the Beneficiary's work withl I cannot 
form part of a qualifying claim relating to the present petition. 
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Likewise, the Petitioner is one of eight members of I l and one of seven members 
o~ I. In the absence of evidence that the Petitioner controls these entities ( each of 
which has a named manager, who is not the petitioning entity), these limited liability companies 
amount to investments by the Petitioner rather than extensions of its own business. The activities of 
I l I I and I I do not constitute business activity by the petitioning entity, 
and any work that the Beneficiary performs for those companies is outside the scope of this petition 
and cannot establish his eligibility for the benefit sought in this proceeding. 
The Director requested additional information and evidence relating to the Petitioner's business 
activity. The materials that the Petitioner submitted in response to this request did not resolve the 
above deficiencies. A new, longer job description refers, again, to "products," "retail operations," and 
subordinate staff: including "managers," but these assertions still do not describe what the Petitioning 
company does. 
The expanded job description (which is unsigned and unattributed) states that the Beneficiary spends 
20% of his time "Providing Final Authorization for all Management decisions in the following areas:" 
• Extensive analysis on structural and environmental factors to design sturdy, functional 
and safe buildings, transportation systems and a wide variety of water-related projects. 
• Determining the best materials and construction techniques for each project. 
• Managing budgets, reviewing and approving plans and drawings. 
• Overseeing the management of all contractors to ensure project [sic] and schedules are 
met. 
• Overseeing and coordinate managers supervising construction. 
• Provide combination civil and environmental engineering services, including structural 
design, pollution prevention, energy-saving methods, and equipment. 
• Offer surveying and site development services. 
The above tasks relate to civil engineering. The Petitioner, however, describes itself as providing 
"management and technical consulting services." The Petitioner has not submitted any evidence to 
show that it has employees to perform the functions described above, or that it has engaged contractors 
to perform them. References to contractors and consultants on the company's tax returns do not 
establish the nature of the services provided by those contractors and consultants. The Petitioner has 
neither identified the contractors and consultants nor provided any evidence (such as contracts) that 
would explain what those contractors and consultants do for the Petitioner (or its unnamed clients). 
The Director denied the petition, stating that the Petitioner "has not offered any additional insight into 
the duties to be performed and the [ availability of] subordinate staff to carry out the non-qualifying 
duties." On appeal, the Petitioner disputes this conclusion, but does not refute it by identifying any 
relevant record evidence that would address the Director's concerns. The Petitioner points to various 
materials that concern the Beneficiary's work abroad before 2014, but these documents predate the 
existence of the petitioning U.S. entity and do not say anything about its structure or operations. 
The Petitioner states that the Beneficiary has negotiated new contracts regarding the purchase and 
development of a residential property in California. The Petitioner must meet all eligibility 
requirements at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). The Petitioner does not 
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establish, or even claim, that the property development project was underway at the time of filing in 
January 2019. The property developer incorporated several months later, in I I 2019. 
Furthermore, the Petitioner did not mention real estate development either in its initial filing or in its 
response to the request for evidence. The new claims on appeal do not establish that the Beneficiary's 
position at the petitioning company amounted to an executive capacity at the time of filing, and the 
Petitioner does not explain how its recent involvement in the purchase of undeveloped residential land 
relates to previous descriptions of the company's business activities. 
In the absence of a coherent, consistent, and credible description of the Petitioner's activities and the 
Beneficiary's role therein, and specific evidence to show who relieves the Beneficiary from 
performing non-qualifying operational and administrative tasks, the Petitioner has not established that 
the Beneficiary's intended position in the United States is primarily an executive capacity. 
In light of the above conclusions, the petition cannot be approved. Detailed discussion of the 
remaining grounds for denial cannot change the outcome of this appeal. Therefore, we reserve the 
remaining issues. 2 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
2 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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