dismissed EB-1C Case: Consumer Goods

U.S. Citizenship 
and Immigration 
Services 
In Re: 8088216 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 17, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a distributor of consumer goods, seeks to pennanently employ the 
Beneficiary as its chief executive officer (CEO) in the United States 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 Texas Service Center denied the petition concluding the Petitioner did not establish 
that the Beneficiary was employed in a managerial or executive capacity abroad. The Petitioner later 
filed a motion to reopen and a motion to reconsider that were also denied by the Director. The matter 
is now before us on appeal. 
On appeal, the Petitioner asserts that the Director did not provide sufficient reasons for denying the 
petition and contends the submitted evidence establishes that the Beneficiary acted in a managerial or 
executive capacity abroad. 
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. LEGAL FRAMEWORK 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that the decision was based on an incorrect 
application of law or U.S . Citizenship and Immigration Services (USCIS) policy and that the decision 
was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. 
§ 103.5(a)(3). A motion may be granted that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
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 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 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. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue to address is whether the Director was correct in dismissing the Petitioner's previous 
motion to reopen and motion to reconsider. As noted, the Petitioner was required to demonstrate the 
Beneficiary's eligibility for the requested benefit in order for the motion to reopen or the motion to 
reconsider to be granted by the Director. Therefore, the sole issue we will address is whether the 
Petitioner established that the Beneficiary acted act in a managerial or executive capacity abroad prior 
to his entry into the United States as a nonimmigrant. 
"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 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
"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 foreign managerial or executive capacity of a given beneficiary, we will review 
the petitioner's description of the foreign job duties. The petitioner's description of the foreign job 
duties must clearly describe the duties performed by the beneficiary and indicate whether such foreign 
duties were in a managerial or executive capacity. 8 C.F.R. § 204.5(j)(5). Beyond the required 
description of the foreign job duties, we examine the foreign company's organizational structure, the 
duties of a beneficiary's subordinate employees abroad, the presence of other employees abroad to 
relieve a beneficiary from performing operational duties, the nature of the foreign business, and any 
other factors that will contribute to understanding a beneficiary's actual duties and role in a business 
abroad. 
Accordingly, we will discuss evidence regarding the Beneficiary's foreign job duties along with 
evidence of the nature of the foreign employer's business, its staffing levels, and its organizational 
structure. 
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In the initial decision, the Director pointed to the fact that the Petitioner did not submit a duty 
description specific to the Beneficiary's asserted managerial or executive role abroad and emphasized 
that it also did not provide duties for his claimed foreign subordinates. 
On appeal, the Petitioner does not definitively address the Beneficiary's position abroad or discuss the 
foreign employer's business, but only points to previous evidence submitted in response to the 
Director's request for evidence (RFE) as well as evidence provided on motion. Based on the name of 
the asserted foreign employer and other evidence, it appeared it was a travel agency. The Petitioner 
stated in a letter provided in response to the RFE that the Beneficiary was the "senior most executive 
in the Indian operation" and that he "ha[ d] been employed by [the foreign employer] since its inception 
and ha[d] acted as the CEO of the company." In addition, the Petitioner submitted an undated foreign 
organizational chart indicating that the Beneficiary acted as the foreign employer's CEO. In the Form 
G-325A Biographical Information submitted along with the Form I-485, Application to Register 
Permanent Residence or Adjust Status, the Beneficiary attested that he was employed by the foreign 
employer from June 1994 to July 2009 as its "Owner." Further, the G-325A also reflected that the 
Beneficiary was employed by a company named j I" as a "manager" from December 2002 
to July 2009. 
In the RFE, the Director requested that the Petitioner submit "a statement from an authorized official 
of your organization which demonstrates that the beneficiary worked abroad in a primarily managerial 
or executive capacity," including "an explanation of the specific tasks that were involved in the 
completion of each duty and the percentage of time spent on each duty." In response, the Petitioner 
provided a generic duty description apparently applicable to both his former capacity abroad and his 
asserted employment in the United States. However, this description only vaguely discussed the 
Beneficiary's proposed tasks in the United States as CEO and did not describe in detail the duties he 
performed abroad on a day-to-day basis. Further, the Petitioner also submitted a description of "Top 
Executives" from the Bureau of Labor Statistic's Occupational Outlook Handbook (OOH) and two 
other sample CEO/president job descriptions from commercial websites. 
Based on the statutory definition of managerial or executive capacity, the Petitioner must first show 
that the Beneficiary performed certain high-level responsibilities abroad. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that 
the Beneficiary was primarily engaged in managerial or executive duties abroad, as opposed to 
ordinary operational activities alongside the foreign employer's other employees. See Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
As discussed by the Director, the Petitioner has not submitted a comprehensive and detailed 
description of the Beneficiary's former duties abroad. The Petitioner only provides generic duty 
descriptions that could apply to any executive acting in any business and industry and they do not shed 
light on the actual nature of his role abroad. For instance, the generic OOH duty description for top 
executives indicates they are tasked with establishing and carrying out organizational goals, policies, 
and procedures, overseeing financial and budgetary activities, negotiating and approving contracts, 
appointing department heads and managers, identifying cost cutting measures, improving policies and 
programs, among other general duties. 
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However, the generic OOH duty description includes no specifics or supporting documentation to 
demonstrate the policies and procedures the Beneficiary established abroad, the financial aspects of 
the business he oversaw, the contracts he negotiated, or policies or programs he improved. In fact, 
there is little indication as to the Beneficiary's actual role abroad based on the submitted evidence and 
there is no documentation to substantiate his activities for the foreign employer during his claimed 
employment there. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily managerial or executive in nature, otherwise meeting the definitions would simply be a 
matter ofreiterating the regulations. Fedin 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 holds a senior position within the foreign employer, the fact that he 
managed or directed the business does not necessarily establish eligibility for classification as a 
multinational manager or executive within the meaning of section 101(a)(44)(A) or (B) of the Act. 
The Beneficiary may have exercised discretion over the foreign employer's day-to-day operations and 
possess the requisite level of authority with respect to discretionary decision-making; however, the 
position description alone is insufficient to establish that his actual duties abroad were primarily 
managerial or executive in nature. 
The Petitioner provided an undated foreign organizational chart reflecting that the Beneficiary acted 
as CEO overseeing a "manager" shown to supervise an accounts and finance manager, a sales 
manager, a marketing and sales manager, and a customer services manager. Further, the chart reflected 
that each respective manager oversaw subordinates, including the accounts and finance manager 
supervising a bookkeeper and an administrative assistant and the sales manager overseeing two 
"salesperson[s]." Meanwhile the marketing and sales manager was shown to supervise two 
"marketing staff'' and the customer services manager a driver/courier and a customer service assistant. 
In the RFE, the Director asked the Petitioner to submit a list of the Beneficiary's foreign subordinates 
with "their job duties, educational level[ s ], salar[ies ], and whether they worked full or part-time." The 
Petitioner did not submit this evidence and the Director discussed this material discrepancy in denying 
the petition. On motion and now on appeal, the Petitioner does not address this material deficiency. 
The Petitioner must resolve ambiguities 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). Further, it is also 
noteworthy that the Petitioner provides no documentary evidence related to the Beneficiary's asserted 
foreign employment. In fact, the Beneficiary indicated in the Form G-325A that he was employed 
with the foreign employer from 1994 to July 2009; however, it is not clear from when its claimed 
foreign organizational chart dates. Without specifics, such as the duties of the Beneficiary's claimed 
foreign subordinates and other supporting evidence of his asserted employment abroad, we are unable 
to determine whether he was employed in a managerial or executive capacity. Again, we note that it 
is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
The Petitioner has not demonstrated that the Beneficiary was employed in a managerial or executive 
capacity in his former capacity abroad prior to his entry into the United States as a nonimmigrant. For 
this reason, we conclude that the Director properly denied the Petitioner's previous motion to reopen 
and motion to reconsider as it did not establish the Beneficiary's eligibility for the benefit sought. 
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ORDER: The appeal is dismissed. 
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