dismissed EB-1C Case: Cosmetics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 25, 2024 In Re: 33878642 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a company selling cosmetic products, seeks to pennanently employ the Beneficiary as 
its president 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. 
§ l 153(b )(1 )(C). This 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 Texas Service Center denied the petition on multiple grounds, concluding the 
Petitioner did not establish that: 1) it had a qualifying relationship with the Beneficiary's foreign 
employer, 2) the Beneficiary would be employed in the United States in a managerial or executive 
capacity, 3) it had the ability to pay the Beneficiary's proffered wage, and 4) it was doing business as 
defined by the regulations. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal as the Petitioner did not establish that the Beneficiary would be employed 
in a managerial or executive capacity in the United States. Since this issue is dispositive, we decline 
to reach and hereby reserve the Petitioner's arguments with respect to the Director's other grounds for 
denial. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make 
findings on issues the decision of which is unnecessary to the results they reach"); see also Matter of 
L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where 
an applicant is otherwise ineligible). 
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)(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(j)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in an executive capacity in the United States. The Petitioner does not claim on appeal that 
the Beneficiary would be employed in a managerial capacity in the United States. Therefore, we 
restrict our analysis to whether the Beneficiary would be employed in an executive 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. 
When examining the executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in an executive capacity. 
8 C.F.R. § 204.5(j)(5). 
A. Duties 
To be eligible as a multinational executive, the Petitioner must show that the Beneficiary will perform 
the high-level responsibilities set forth in the statutory definition at section 101 (a)( 44)(B)(i)-(iv) of the 
Act. If the record does not establish that the offered position meets all four of these elements, we 
cannot conclude that it is a qualifying executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, it must prove that the Beneficiary will be primarily engaged in executive duties, as opposed 
to ordinary operational activities alongside its other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006). In determining whether a given beneficiary's duties will be primarily 
executive, we consider the petitioner's description of the job duties, the company's organizational 
structure, the duties of a 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 a beneficiary's actual duties and role in a business. 
The Petitioner stated that it was established in 2014 to distribute and sell tanning and cosmetic products 
imported from Brazil. The Petitioner submitted the following duties for the Beneficiary as its 
president: 
1. Develop and implement strategic planning for new manufacturing operations in the 
United States (10% of time spent); 
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2. Hire department managers and specialists in cosmetic industry (5% of time spent); 
3. Supervise existing and newly hired management level staff (5% of time spent); 
4. Conduct weekly meetings with department managers to monitor progress in 
operations, research and development, product expansion, digital marketing and 
sales (5% of time spent); 
5. Attend industry conferences with key personnel (5% of time spent); 
6. Prepare and attend regular meetings a with Accounting and Finance professionals 
for weekly, monthly, and annual financial reports (5% of time spent); 
7. Provide regular interface with stakeholders in Brazil and USA (10% of time spent); 
8. Consult with our company in Brazil including discussions of overview of sales 
forecasts and affiliate growth in the U.S. including set up manufacturing operations 
and new product line development (10% of time spent); 
9. Approve contracts negotiated and acquired by management heads including but not 
limited to equipment purchase, and raw materials and components, freight 
contractors, import processors, and advertising contracts (10% of time spent); 
10. Interface with management personnel to establish long range goals, strategies, plans 
and policies (15% of time spent); 
11. Enhance and/or develop, implement and enforce policies and procedures of the 
company by systems that will improve the overall operation and effectiveness of 
the company (5% of time spent); 
12. Evaluate feasibility and cost/sales analysis of manufacturing operations with 
Director of Operations and Accounting including three production shifts in order to 
provide 24-hour production (5% of time spent); 
13. Review good manufacturing processes reports from Director of Operations and/or 
Operations Supervisor (5% of time spent); 
14. Consult with U.S. legal counsel regarding governmental compliance issues and 
corporate governance (5% of time spent). 
The Petitioner submitted supporting documentation reflecting the Beneficiary's involvement in 
various non-qualifying operational duties as of the date the petition was filed in January 2018 and 
thereafter. For instance, the Petitioner provided an invoice from December 2018 reflecting the 
Beneficiary paying for a $240 sewer permit for the company. Likewise, the Petitioner provided 
invoices dating as late as November 2019 showing the Beneficiary as a contact for billing. Similarly, 
the Petitioner submitted quotes for architectural and construction services from August 2018 listing 
the Beneficiary, indicating that he arranged for these quotes and was handling all operational aspects 
of the company's planned construction of a manufacturing facility. The Beneficiary's resume further 
listed several apparent operational tasks not shown in his duty description, stating that he was 
responsible for working on the company's website to increase traffic and sales, managing online 
pricing and promotions, and creating "X-marketing events." These duties suggest the Beneficiary's 
direct involvement in nearly all the operational aspects of the business, and at minimum, they reflect 
him working alongside operational employees within the business to perform ordinary non-qualifying 
operational tasks. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that his duties are "primarily" executive. See sections 10l(a)(44)(B) of the Act. 
Here, the Petitioner does not credibly document what proportion of the Beneficiary's duties would be 
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executive functions and what proportion would be non-qualifying. The Beneficiary's duties reflected 
on the record are largely administrative or operational, but the Petitioner does not sufficiently quantify 
the time he would spend on these duties as opposed to qualifying executive-level tasks. For this 
reason, we cannot determine whether the Beneficiary would primarily perform the duties of an 
executive. See IKEA US, Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
In contrast, the Petitioner provided insufficient detail and little documentary evidence to demonstrate 
his primary performance of qualifying executive-level tasks. For instance, the Petitioner did not 
sufficiently articulate or document the strategic plans he implemented, the department managers and 
specialists he hired, the stakeholders he interfaced with, or the long-range goals, strategies, plans, and 
policies he established. This lack of detail and documentation is particularly noteworthy since the 
Petitioner filed an L-lA intracompany transferee petition on behalf of the Beneficiary that was 
approved in August 2016, and later extended through August 2019. Although we do not expect the 
Petitioner to articulate and document every executive-level task performed by the Beneficiary, it is 
reasonable to require that it would provide sufficient detail and documentation to sufficiently 
corroborate his primary performance of qualifying duties. Specifics are clearly an important indication 
of whether a beneficiary's duties are primarily executive in nature, otherwise meeting the definitions 
would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
Even though the Beneficiary holds a valuable position within the organization, the fact that he will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational executive within the meaning of section 101(a)(44)(B) of the Act. The Beneficiary may 
exercise discretion over some of the Petitioner's day-to-day operations and possess some requisite 
level of authority with respect to discretionary decision-making; however, the position description 
alone is insufficient to establish that his actual duties would be primarily executive in nature. 
B. Staffing and Executive Capacity 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101(a)(44)(C) of the Act. 
As discussed, the Petitioner contends that the Beneficiary would be employed in an executive capacity. 
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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In support of the petition, the Petitioner provided an organizational chart reflecting that the Beneficiary 
would supervise a sales manager, an accountant/CPA, a "sales rep kiosk 1," a "marketing/CRM" 
employee, a logistics manager, and a research and development employee. As discussed by the 
Director, the Petitioner submitted another organizational chart in response to the Director's request for 
evidence (RFE) in November 2018 showing numerous differences from the chart provided in support 
of the petition. However, our focus must be on the Petitioner's organizational strncture as of the date 
the petition was filed, namely that explained above. The affected party has the burden of proof to 
establish eligibility for the requested benefit at the time of filing the benefit request and continuing 
until the final adjudication. 8 C.F.R. § 103.2(b)(l); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 
(Comm'r 1971) (providing that "Congress did not intend that a petition that was properly denied 
because the beneficiary was not at that time qualified be subsequently approved at a future date when 
the beneficiary may become qualified under a new set of facts."). 
The Petitioner submitted conflicting evidence with respect to its claimed organizational strncture when 
the petition was filed leaving uncertainty as to whether it was sufficiently staffed to support the 
Beneficiary in an executive capacity at that time. For instance, the organizational chart submitted 
with the petition showed that the Beneficiary oversaw six filled positions, or positions with employees 
identified by name. In contrast, the petition stated that the Petitioner had nine employees, while a 
support letter stated that it had "hired three U.S. citizens as key personnel" as of the date the petition 
was filed. Still further, the Petitioner provided state employer's quarterly wage reports from the fourth 
quarter of 2017, dated just before the petition was filed in January 2018, reflecting that the Petitioner 
had only two employees, the Beneficiary and the claimed research and development employee. As 
such, the Petitioner did not submit a clear picture of its organizational strncture as of the date the 
petition filed or sufficiently substantiate that it was properly developed to support the Beneficiary in 
an executive-level role. The Petitioner must resolve discrepancies and ambiguities in the record with 
independent, objective evidence pointing to where the trnth lies. Matter ofHo, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
As discussed, in determining whether a given beneficiary's duties will be primarily executive, we not 
only consider the petitioner's description of the job duties, but the company's organizational strncture, 
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 a beneficiary's actual 
duties and role in a business. Here, the submitted evidence does not establish that the Petitioner had 
sufficient operations or employees to support the Beneficiary in an executive position when the 
petition was filed, where he would act in an elevated position and be primarily relieved from 
performing non-qualifying operational duties. 
In fact, as addressed previously in this decision, the Petitioner provided little supporting evidence to 
substantiate the Beneficiary's performance of executive-level duties consistent with setting goals and 
policies, but in contrast submitted substantial supporting documentation reflecting his performance of 
non-qualifying operational duties at the time the petition was filed and for over a year following this 
time. The Beneficiary's duties also discuss his supervision and direction of various subordinate 
managers, including weekly meetings with department managers, approving contracts negotiated and 
acquired by management heads, and evaluating feasibility and cost/sales analysis of manufacturing 
operations with the director of operations. However, tax documentation submitted near to the date the 
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petition was filed does not support a conclusion that the Petitioner employed department managers, 
management heads, or a director of operations. Again, the Petitioner must resolve discrepancies and 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 T&N Dec. at 582, 591-92. The immigrant classification for multinational executives is not 
a prospective petition where a beneficiary's eligibility may be established at a date following the date 
the petition was filed through future business or hiring plans. Again, the affected party has the burden 
of proof to establish eligibility for the requested benefit at the time of filing the benefit request and 
continuing until the final adjudication. 8 C.F .R. § 103 .2(b)(1 ); see also Matter of Katigbak, 14 I&N 
Dec. at 45, 49. 
For the foregoing reasons, the appeal must be dismissed, as the Petitioner did not demonstrate that the 
Beneficiary would act in an executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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