dismissed EB-1C Case: Cosmetic Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 6313653 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 13, 2020 
Form I-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a provider of cosmetic services and products , seeks to permanently employ the 
Beneficiary as chief executive officer (CEO) 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. § l 153(b)(l)(C). This employment-based "EB-1" immigrant classification 
allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to 
work in a managerial or executive capacity. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish , as required, that the Beneficiary will be employed in a managerial or executive capacity 
in the United States. 
On appeal the Petitioner submits a brief and additional evidence , and asserts that the record establishes 
that the Beneficiary has been and will continue to be employed in an executive capacity in the United 
States. 
Upon de nova review , 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 )(1 )(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) . 
The term "executive capacity" is defined in section 10l(a)(44)(B) of the Act, 8 U.S.C. 
§ 1101(a)(44)(B), as "an assignment within an organization in which the employee primarily-
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the 
board of directors, or stockholders of the organization." 
Section 101(a)(44)(C) of the Act farther provides, in pertinent part, that: 
If staffing levels are used as a factor in determining whether an individual is acting in 
a[n] ... executive capacity, [U.S. Citizenship and Immigration Services] shall take into 
account the reasonable needs of the organization, component, or function in light of the 
overall purpose and stage of development of the organization, component, or function. 
An individual shall not be considered to be acting in a[ n] ... executive capacity ... 
merely on the basis of the number of employees that the individual ... directs or has 
directed. 
II. ANALYSIS 
The I-140 petition in this case was accompanied by a letter from the Petitioner's general manager, 
I I which addressed the substantive requirements of 8 C.F.R. § 204.5(j)(3). As explained by the 
general manager and documented with supporting materials, the Beneficiary is the sole owner of a 
company in I I China, I ~=~=~~=.- I which was 
established in 2003 and is described as a manufacturer of dis lay' ~lrooms. display c~b-; and di;u)a~ 
props of ma~or electrical ap=liance com:Trie::::.,se......s:.su.:::.c""-he.!.....!::a""s..i.,;:====Ll-b:==rl"'----,~+.__"Tl •·r----.,-- _ _,J 
I I a rr , I, I ._______. and 
I I 
In D 2014 the Petitioner was incorporated inl [ California, by I , I, who launched 
a nail and facial salon engaged in the sale of cosmetic services and products. In December 2016,D 
D the sole shareholder up to then, sold a 60% interest in the business to the Beneficiary for a price 
of $300,000. The Beneficiary continued to operate his company in China until July 2017, after which 
he entered lthe Unitled States on an L- lA nonimmigrant visa to assume the position of CEO with the 
Petitioner. now a minority co-owner with a 40% interest the Petitioner, continues to work for 
the business in the subordinate position of general manager. In March 2018, the instant petition was 
filed seeking immigrant status for the Beneficiary as a multinational executive. 
After issuing a notice of intent to deny (NOID) and receiving the Petitioner's response, the Director 
denied the petition on the grounds that the Petitioner did not submit sufficient evidence to establish 
that the Beneficiary would be working in an executive ( or managerial) capacity for the U.S. business 
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and that the organization of the U.S. business was not mature or complex enough to warrant the 
services of a folltime multinational executive (or manager). The Director found that while the 
Beneficiary may spend some of his time overseeing and directing other employees, he would also be 
involved in non-qualifying administrative and operational duties and would not be employed primarily 
in an "executive capacity." The Director concluded that the Beneficiary was, in effect, a supervisor 
of non-managerial and non-professional employees. 
On appeal, the Petitioner asserts that the Director's decision did not properly consider all of the 
evidence it submitted, contained factual and legal errors, failed to consider the reasonable needs of the 
Petitioner's business, did not apply the correct standard of proof: and ignored the intent of Congress 
and a recent executive order. The Petitioner also submits some additional evidence. For the reasons 
discussed hereinafter, we find that the Petitioner has not overcome the Director's grounds for denial. 
When examining whether a beneficiary will be employed in an executive capacity, we first look to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Based on the statutory definition 
of executive capacity, the petitioner must show that the beneficiary will perform certain high-level 
responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table 
decision). The petitioner must also demonstrate 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); Champion World, 940 
F.2d 1533. Beyond the required description of the job duties, we examine 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. 
As evidence of the Beneficiary's duties as CEO of the U.S. entity, the Petitioner provided a list of ten 
specific duties, each of which is linked to one or more of the first three criteria of"executive capacity" 
as defined in section 101(a)(44)(B) of the Act. None of the duties is linked to the fourth criterion of 
"executive capacity" in section 10l(a)(44)(B) of the Act. While the job duties described on appeal 
appear to be largely executive in nature, they do not by themselves demonstrate that the Beneficiary's 
position is one of "executive capacity" as contemplated in the Act. The language of the four criteria 
in section 101(a)(44)(B) clearly indicates that the petitioning organization must have a certain size and 
complexity to warrant the services of an employee with "executive capacity" duties and 
responsibilities. 
The Petitioner has provided an organizational chart ot1 I showing an otherwise unidentified 
board of directors at the top, below that entity the Beneficiary as CEO, and below him the general 
managerj I Reporting to the general manager are the store manager and the "development 
department" manager. Reporting to the store manager are the managers of the marketing & 
administration, manicure & pedicure, and facial, tanning & body departments. Reporting to the 
development department manager are the managers of the product development and franchise store 
development departments. Rounding out the organizational chart are assorted operational positions 
such as cashiers, salespersons, technicians, and representatives. The chart shows a total of 31 
positions, of which 18 are employees and 13 ( all in the lower operational positions) are independent 
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contractors. According to the Petitioner, every employee in a managerial position has a bachelor's 
degree or at least some college education. 
In a supplementary letter describing the Beneficiary's position in the hierarchy and tying his duties to 
the regulatory criteria of "executive capacity," the Petitioner states that the CEO, as its top executive, 
will (1) direct the management of each department [ six in all] through department managers, develop 
overall objectives, strategies, policies and work plans, and supervise and evaluate job performances; 
(2) establish the goals and policies of the business and achieve business plan objectives utilizing the 
reports of the department managers, monitor industry and market trends, approve the operating budget 
formulated by the general manager and department manager, and set sales targets; (3) exercise wide 
latitude in discretionary decision-making by negotiating joint business agreements with other 
cosmetics companies, hiring independent contractors, and outsourcing service providers; and (4) 
receive only general supervision or direction from the board of directors. 
While the Beneficiary may be relieved of performing any daily operational tasks of the business, such 
as direct sales of cosmetic products and the provision of nail and facial services, we agree with the 
Director that the Petitioner has not established that it is complex enough to warrant the services of a 
full-time multinational executive. The Petitioner consists of a single store selling cosmetic products 
and services, so it is a small operation without much organizational complexity. 
While the Petitioner asserts that it has a board of directors to which the CEO is answerable, there is 
little evidence thereof in the record. Documentation submitted with the petition shows that a board of 
directors was created whenl b was incorporated in 2014, and in its first meeting the sole 
shareholderJ I served in the multiple positions of president, secretary, treasurer, chairman, and 
incorporator. No further documentation has been submitted to show that the board of directors has 
been updated to include additional members and officers aside from I I who is now the 
company's general manager and directly subordinate to the Beneficiary. It is unclear, therefore, 
whether the Petitioner has a functioning board of directors, as claimed, that exercises any supervision 
or provides any direction vis-a-vis its top executive, the CEO. 
Having broad discretionary authority over a petitioner's day-to-day business operations does not 
infuse a position with all the definitional elements of "executive capacity." The statutory definition 
in section 10l(a)(44)(B) of the Act indicates that a person must have an elevated position within a 
complex organizational hierarchy, or within a major component or function of the organization. An 
individual will not be deemed a multinational executive under the statute simply because they have an 
executive title or because they direct the enterprise as the owner or sole managerial employee. While 
the Beneficiary is not the sole owner or operator of the Petitioner, he is the majority shareholder of the 
company and the only other shareholder has a subordinate position with no evident authority to 
supervise, direct, or otherwise control the Beneficiary, as CEO. Thus, the Beneficiary runs a small 
enterprise with little oversight. He does not occupy an elevated executive position in a complex 
organization under the general supervision or direction of other high executives or a board of directors. 
In summation, based on the size, scope, and nature of the Petitioner's business - a single store selling 
cosmetic products and services - we find that the Beneficiary, as its CEO, will not be employed in an 
"executive capacity" as contemplated in section 101(a)(44)(B) of the Act. 
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The Petitioner's claim that the Director applied the wrong standard of proof is without merit. In visa 
petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. 
Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). To meet this burden, the petitioner must prove 
by a preponderance of evidence that it and the beneficiary are qualified for that benefit. Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The "preponderance of the evidence" standard 
requires that the evidence demonstrate that the petitioner's claim is "probably true," where the 
determination of "truth" is made based on the factual circumstances of each individual case. Id. 
(quoting Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In evaluating the evidence, the 
truth is to be determined not by the quantity of evidence alone but by its quality. Id. Thus, in 
adjudicating the petition pursuant to the preponderance of the evidence standard, USCIS must examine 
each piece of evidence for relevance, probative value, and credibility, both individually and within the 
context of the totality of the evidence, to determine whether the fact to be proven is probably true. We 
have applied this standard in our appellate review, and find no reason in the record of proceeding to 
conclude that the Director did not do so in his original consideration and denial of the petition. 1 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary will be employed in an executive capacity in 
the United States. The appeal will be dismissed for the above stated reason. In visa petition 
proceedings it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
1 The Petitioner also asserts that the Director failed to consider (1) the intent of Congress in its establishment of the visa 
programs for multinational executives and managers, both immigrant and nonimmigrant, to promote the seamless 
operation of international businesses and help U.S. businesses compete for international talent and market share; and (2) a 
recent executive order in 2017 to "buy American and hire American" and thereby foster U.S. economic growth and job 
creation. The AAO adjudicates appeals in accordance with applicable statutory and regulatory provisions. The Petitioner 
has not adequately explained how the intent of Congress in establishing this visa classification and the executive order 
mandates an approval or otherwise supports its petition filing. For the reasons stated herein, the Petitioner has not 
established that the Beneficiary will work in an executive capacity. 
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