dismissed EB-1C Case: Cornmeal Wholesale

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-0-A- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27.2018 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a cornmeal wholesaler, seeks to permanently employ the Beneficiary as its executive 
director under the first preference immigrant classification for multinational executives or managers. 
See Immigration and Nationality Act (the Act) section 203(b )(I )(C). 8 U .S.C. ~ 1153(b )( 1 )(C). This 
classification allows a U.S. employer to permanently 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 record did not 
establish, as required. that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
On appeal. the Petitioner submits additional evidence and asserts that the Director erred by not 
considering the Beneficiary's job duties and his continued authority over the Petitioner's foreign 
parent company. 
Upon de novo review. we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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 atliliate. Section 203(b)( 1 )(C) of the Act. 
The Form 1-140. Immigrant Petition for Alien Worker, must include a statement tl-om 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 tiling of the petition. that the beneficiary is coming to work in the United States ti.Jr the same 
employer or a subsidiary or affiliate of the foreign employer. and that the prospective U.S. employer has 
been doing business tor at least one year. ,'J'ee 8 C. FR.~ 204.5Q)(3). 
Matter of P-0-A- LLC 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Initially, the Petitioner consistently described the Petitioner as an executive. On appeal. the 
Petitioner asserted that the Beneficiary's "'position may qualify as either managerial or executive in 
nature:' ''because his position encompasses the major aspects of both positions." Because the 
Petitioner did not make this claim prior to the Director's decision, the Director did not err by limiting 
consideration to the Petitioner's initial claim that the Beneficiary is an executive. The Petitioner has 
not met its burden of proof regarding executive or managerial capacity. 
A managerial capacity is an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision. function. or component of the organization. 
and exercises discretion over the day-to-day operations of the activity or function for which the 
employee has authority. A personnel manager supervises and controls the work of other 
supervisory, professional. or managerial employees: the duties of a tirst-line supervisor are not 
considered managerial unless the employees supervised are professional. A personnel manager must 
also have the authority to execute or recommend personnel actions such as hiring. tiring. and 
promotions. A function manager need not directly supervise other employees, but must manage an 
essential function within the organization, or a department or subdivision of the organization. and 
function at a senior level within the organizational hierarchy or with respect to the function 
managed. Section 10l(a)(44)(A) of the Act. 8 U.S.C. ~ 110l(a)(44)(A). The Petitioner has not 
claimed that it seeks to employ the Beneficiary as a function manager. 
An executive capacity is 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)(13) of the Act. 
If starting 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 (lJSCIS) 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 1 0 I (a)( 44 )(C) of the Act. 
A. Stat1ing 
USCIS reviews the totality of the record 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 anv other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. 
2 
Mutter of 1'-0-A- LLC 
We also consider the proposed posJtlon in light of the nature of the Petitioner"s business. its 
organizational structure. and the availability of staff to carry out the Petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a petitioner has. USClS ""may properly consider an organization· s small size as one factor 
in assessing whether its operations are substantial enough to support a manager.""
1 
On the petition form, the Petitioner claimed seven current U.S. employees, including the Beneficiary 
(in the United States as an L-1 A nonimmigrant). An organizational chm1 showed this structure: 
Executive Director [the Beneficiary] 
General Manager 
(Sales & Operations) 
Administrative 
Manager 
Sales Supervisor Customer & Distributor Administrative 
Support Assistant Assistant 
Marketing & Event 
Promotion Assistant 
The Petitioner's most recent quarterly federal income tax return as of the filing date indicated that 
the company had five employees on the payroll as of .June 12.2016. This number appears to include 
the Beneficiary, who already held L-1A status at the time. Between January 2015 and June 2016, 
the number of employees fluctuated between three and six. 
To show its reliance on third-party service providers, the Petitioner submitted an agreement with a 
distributor and a letter from a cargo company that has been storing and transporting the Petitioner's 
goods. The Petitioner also stated that it has subcontracted a certified public accountant, but the 
record does not document the extent of this arrangement apart from tax return preparation. 
The Director requested job descriptions for the Beneficiary's subordinates and copies of IRS Forms 
W -2. Wage and Tax Statements. to confirm their employment. In response. the Petitioner submitted 
a new organizational chart, with two positions consolidated into one. with the title ·'Sales Supervisor 
& Customer & Distributor Support."" 
In the denial notice, the Director concluded that ''it is unclear how many employees the petitioner is 
employing'' because the Petitioner had not submitted the requested IRS Forms W-2. The Director 
found that the Petitioner had not shown that it employs any lower-level managers or has sut1icient 
staff to relieve the Beneficiary from having to primarily perform non-executive operational and 
administrative tasks. 
On appeal, the Petitioner submits IRS Forms W-2, showing the following amounts paid in 2016: 
1 
Famizl'. Inc. l". U.S. Citi::enship and !mnugration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Repuh!ic of"li"anskei v. INS. 923 F.2d 175. 178 (D.C. Cir. 1991 ): Fedin Bros. ( ·o. v. Savu. 905 F.2d at 42: Q Duta 
Consulting. Inc. v. INS. 293 F. Supp. 2d 25, 29 (D. D.C. 2003). 
Mauer of P-0-A- LLC 
Executive Director (the Beneficiary) 
General Manager (Sales & Operations) 
Administrative Manager 
Sales Supervisor & Customer & Distributor Support 
Marketing & Event Promotion Assistant 
Customer & Distributor Support Assistant 
Administrative Assistant 
$90.000 
14.000 
24.000 
15.000 
6000 
4500 
2250 
The Petitioner has documented its employment of everyone named on its organizational chart. but 
only the Beneficiary and the administrative manager received salaries consistent with year-round. 
full-time employment at or above Florida· s 2016 minimum wage. 
The Petitioner specifically claimed that the general manager works full-time. but the documented 
$14,000 salary is not consistent with that claim. He and the remaining employees must have worked 
either part-time. or for only part of the year. or both. Also, the sum of the amounts listed above 
matches the total salaries that the Petitioner reported on its 2016 income tax return. Therefore. the 
Petitioner did not replace any workers during 2016. 
While the Petitioner has documented what appears to be a mostly part-time subordinate staff. the 
Petitioner has not shown that the Beneficiary's oversight over that staff rises to a managerial or 
executive level. 
The Petitioner claimed that both of the Beneficiary· s direct reports are professionals. To determine 
whether the 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. 2 The 
general manager holds a bachelor's degree in health planning and administration and the 
administrative manager holds a bachelor's degree in sociology. The Petitioner did not establish or 
explain how either position requires a bachelor's degree. 
The general manager and administrative manager positions are nominally supervisory, because each 
position has at least one listed subordinate. The Petitioner has not shown. however. that either of 
these positions primarily involves supervisory responsibilities. 
According to the Petitioner, the general manager (sales and operations) has authority over matters 
such as personnel issues, "national and international logistics and distribution operations, .. and 
seeking new customers. The administrative manager oversees "all financial matters:· ''import/expm1 
processing paperwork and filing,'' and acts '·as back office support to the Executive Director and 
' q: 8 C.F.R. § 204.5(k)(2) (defining ·'profession" to mean "any occupation for which a United States 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 prof'ession shall include but not be limited to architects. engineers. lawyers. physicians. 
surgeons. and teachers in elementary or secondary schools. colleges. academies. or seminaries." 
4 
Maller of P-0-A- LLC' 
General Manager.·· The Petitioner did not establish to what extent the two direct reports delegated 
these functions to subordinates. We note also that. according to the Petitioner, the general manager 
has '"authority over hiring," whereas the administrative manager is '"[r]esponsible for ... [the] hiring 
process ... The Petitioner did not explain the difference. Also. the Petitioner did not document any 
new hires during the year it filed the petition. and therefore any hiring responsibilities would have 
been negligible at the time of filing. 
The record does not support the Petitioner's claim that multiple full-time employees relieve the 
Beneficiary from having to perform non-qualifying tasks. The record also does not establish that the 
U.S. company has a sufficiently complex structure to wa!Tant a managerial or executive position. 
The Petitioner devotes much of the appeal to the assertion that the Director did not address the 
Beneficiary's duties. We will discuss these duties below. 
B. Duties 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
The Petitioner stated: 
In his capacity as Executive Director. [the Beneficiary] has immediate oversight 
responsibility for all the operational and financial aspects of our company. including 
the development and distribution of contracts. He oversees the interpretation and 
implementation of corporate policies and procedures to effectively and efficiently 
facilitate business activities according to our corporate contract standards. 
Additionally, he provides guidance on the conceptual. strategic. and policy formation 
functions for our overall operations. 
The Petitioner divided the Beneficiary's responsibilities into three categories. each further 
subdivided, with the approximate percentage of time devoted to each: 
General Corporate Planning and Operational Direction of the Company- 30% 
• Implementing and executing operational and distribution standards, policies. 
procedures and measurements for all aspects of operations and logistics 
operations- 6%. 
• Establishing and leading implementation of retail posttton standards. 
organizational structures. training and development and performance measures -
4%. 
• Directing the company's deadlines. key milestones and critical paths to ensure 
continuous growth - 4%. 
Matter of P-0-A- LLC 
• Selecting distributors to market, distribute and sell [the parent company's] 
products- 4%. 
• Coordinating with General Manager to manage and negotiate prices, shipment. 
insurance and transportation of merchandise - 4%. 
• Overseeing the general operations of [the parent company and the Petitioner] 
through the supervision and direction of subordinate managerial personnel - 8%. 
Revenue Generation/Administration, Finance and Sales Department- 30'Yo 
• Directing performance assessments of personnel - 8%. 
• Reviewing and analyzing sales and activity reports, potential sales and 
performance data prepared by Sales Supervisor, General Manager. and outside 
Accountant to measure productivity and goal achievement·- 7%. 
• Through the Accountant and Administrative Manager. supervising financial 
relationships and financial matters, as well as directing financial budgetary 
activities and taxation planning- 15%. 
Business Development, Sales and Marketing- 40% 
• Planning, executing and overseeing trade shows while acting as the official 
spokesman of the Corporate Group- 4%. 
• Developing and executing, in conjunction with the General Manager and the 
Marketing and Event Promotion Assistant, the entire marketing plan for U.S. 
operations - 7%. 
• Coordinating. through the General Manager, combined shipments and vendor 
relations- 3%. 
• Consistently modifying sales and marketing policies by reviewing market analysis 
studies prepared by employees and reviewing competitors' prices- 6%. 
• Directing the implementation of social media marketing to increase company's 
sales and ... [b]rand awareness- 3%. 
• Identifying, communicating and developing opportunities with new and existing 
distributors and customers- 4%. 
• Negotiating and closing new business deals by coordinating requirements. 
developing and negotiating contracts with major supermarkets. and integrating 
contract requirements with business operations- 5%. 
• Directing the recruitment. training and management of staff- 8%. 
Some listed duties. such as "[ d]irecting the company's deadlines, key milestones and critical paths," 
are generic and lack detail. Others are repetitive; the Petitioner stated that the Beneficiary spent 8% 
of his time "[ d]irecting the ... management of staff," and another 8% of his time on ''the supervision 
and direction of subordinate managerial personnel." Several items. such as '·[ d ]irecting the 
implementation of social media marketing," describe responsibilities without indicating what the 
Beneficiary does to meet those responsibilities. 
Maller of P-0-A- LLC 
The Petitioner asserts that the Beneficiary has delegated operational and administrative 
responsibilities to subordinates. but the record does not support this assertion. For instance. the 
Petitioner states that the Beneficiary. through a subordinate. will '·negotiate prices, shipment 
insurance and transportation of merchandise.'' A '"master distribution and license agreement'' in the 
record indicates that shipment and transportation have already been negotiated. The record does not 
support the assertion that budgeting, recruitment, negotiations. and other activities take up the time 
claimed in the job description. Given the small size of the Petitioner's staff: it does not appear likely 
that the Petitioner would devote. on average. about three hours per week to directing performance 
assessments. With respect to reviewing reports prepared by subordinates, the subordinates' job 
descriptions do not include preparing those reports. 
On appeal, the Petitioner states that the Director should have given more weight to the Beneficiary's 
"ongoing and active leadership role with" the foreign parent company. The previously submitted 
breakdown of the Beneficiary's duties indicated that the Beneficiary spends only 8% of his time 
''[o]verseeing the general operations of [the foreign entity] and [the petitioning U.S. entity] through 
the supervision and direction of subordinate managerial personnel." This small percentage 
diminishes the relevance of the Petitioner's assertion that the foreign company "is a sizeable and 
highly developed operation." 
Upon review of the petition and the evidence of record. including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed 
in a managerial or executive capacity in the United States. The Petitioner has established that the 
Beneficiary will have discretionary authority over the petitioning U.S. company. but has not shown 
that the Beneficiary's duties will be primarily those of a manager or executive. 
Ill. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in a primarily managerial or 
executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of'P-0-A- LLC. ID# 966687 (AAO Feb. 27. 2018)