dismissed EB-1C Case: Fashion

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 13, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which operates a garment boutique and couture clothing line, seeks to permanently 
employ the Beneficiary as its "Chief Executive Operations" 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). 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 Petitioner did not 
establish, as required, that it will employ the Beneficiary in a managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director overlooked relevant information and placed undue 
emphasis on the company's size and staffing levels. The Petitioner maintains that the Beneficiary 
will primarily perform executive duties and that it has sufficient staff to relieve her from 
involvement in the day-to-day operational tasks of the business. 
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 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). 
Matter of B-, LLC 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that it will employ the 
Beneficiary in the United States in an executive capacity. The Petitioner does not claim that the 
Beneficiary will be employed in a managerial capacity. Therefore, we restrict our analysis to 
whether the Beneficiary will be employed in an executive capacity. 
"Executive capacity" is defined as 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, 8 U.S.C. § 1101(a)(44)(B). 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be performed by the Beneficiary. Beyond the required description of the job 
duties, we review the totality of the evidence when examining a beneficiary's claimed 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 any other factors that will contribute to understanding a 
beneficiary's actual duties and role in a business. Accordingly, our analysis of this issue will focus 
on the Beneficiary's duties as well as the Petitioner's staffing levels and reporting structure. 
A. Duties 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definition of executive capacity. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must 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); Champion World, 940 F.2d 1533. 
The Petitioner initially described the Beneficiary's proposed duties as "chief executive operations" as 
follows: 
• Direct the execution of the organization, and oversee the overall operations of the 
corporation involved in the sales, marketing, customer relation[ s] and distribution of 
product operations. 
• Strategies [sic] the expansion of the product offering and efforts in expansion of 
additional future ventures. 
• Establish the goal and policies of the organization and function. 
• Exercise wide latitude in discretionary decision-making about the business deals. 
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Matter of B-, LLC 
• Coordinate with internal organization and with external entities, to support the 
director in its endeavors to interface with professional ex[p]erts to accurately reflect 
the fine deals; 
• Ensure availability of investment funds for expansion of the business; 
• Approve deals with the banks and financial institutes, US Customs and 
intermediaries for business line of credit, loans and contracts; 
• Involve[ d] in the corporate representation by attending meetings with high volume 
customers, exhibition, and participation in fashion industry events; 
• Direct the management team in meeting with the day to day business _challenges; 
• Provide logistic and analytic support to senior managers to improve the operational 
efficiency in terms of working capital, and overall cost of the business. 
These duties were too broad to establish the nature of the Beneficiary's primary duties on a day-to­
day basis. Moreover, this description appeared to include non-executive tasks such as providing 
logistic and analytics support and participating in customer meetings, as well as poorly defined 
duties, such as supporting "the director in its endeavors to interface with professional ex[p ]erts to 
accurately reflect the fine deals." Several duties were also taken almost verbatim from the definition 
of "executive capacity" and were not sufficiently descriptive of the Beneficiary's actual duties 
within the context of the Petitioner's business. Specifics are clearly an important indication of 
whether a beneficiary's duties are primarily executive or managerial 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
In a request for evidence, the Director issued a request for evidence (RFE), advised the Petitioner 
that this description was too generalized and asked it to provide a description listing all specific daily 
duties (rather than categories of duties), and the percentage of time the Beneficiary will spend on 
each task. 
In response to the RFE, the Petitioner provided an expanded list of 44 duties divided into four 
undefined categories and indicated that each group of duties would require 20 to 30% of the 
Beneficiary's time. This description included some, but not all, of the duties stated above. We agree 
with the Director's determination that the expanded description, while lengthy, was repetitive, 
contained a number of broad and ambiguous duties, and was not responsive to the Director's request 
that the Petitioner identify the specific tasks the Beneficiary would perform on a day to-day basis. 
For example, the Petitioner stated that the Beneficiary will "direct the improvement [ of] operational 
systems, processes and policies," plan and develop "policies procedures and goals," engage in long­
term planning, "establish the goals and policies of the organization," "oversee the overall 
operations," develop and implement "policies, programs, and processes," "direct and administer and 
control the company's operations," direct "the execution of the organization," and "exercise wide 
latitude in discretionary decision-making." All of these duties simply paraphrase the statutory 
definition of "executive capacity" and do not provide insight into the types of tasks the Beneficiary 
would perform as part of her daily routine. The Petitioner did not identify or document any policies, 
strategies, programs or processes it expects her to develop or implement in support of its claim that 
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Matter of B-, LLC 
she would spend a significant portion of her time performing these higher-level duties. Conclusory 
assertions regarding the Beneficiary's employment capacity are not sufficient. Merely repeating the 
language of the statute or regulations does not satisfy the Petitioner's burden of proof F edin Bros., 
724 F. Supp. at 1108, aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs., Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). 
Most of the remaining duties are similarly repetitive and relate to either personnel supervision or 
oversight of the company's finances. For example, the Petitioner lists separate duties for "directing 
training of subordinate managers," "supervising and coaching subordinate managers," monitoring 
staff performance," "mentor with subordinate managers to get the best performance from staff," 
"establish policies to regulate the conduct of subordinate managers," "evaluate subordinate staff 
performance," and "supervise and train subordinate professional staff." Due to this repetition, the 
description does not detail how much time the Beneficiary would actually spend on supervisory and 
other personnel-related duties. The Petitioner has also attributed a number of higher-level financial 
planning duties to the Beneficiary, but also indicates that she "manages" the "day-to-day processing 
of accounts receivable and payable and produces reports as requested," tasks that are not executive 
in nature especially considering that the company does not employ staff responsible for accounting, 
bookkeeping, banking or other routine financial activities. The Petitioner provided evidence that it 
contracts with an accounting firm, but the submitted invoices from that firm indicate that it primarily 
handles monthly payroll. 
Finally, we note that, although the Petitioner operates a boutique clothing store, one of the 
Beneficiary's listed duties is to "[ d]irect general management in the development of policies and 
procedures in order to successfully complete sales of products and services for the oil, gas [and] 
petrochemical industry," and to "monitor the timely submission of technical reports and required 
agency deliverables." These duties are clearly incongruous with the nature of the Petitioner's 
business and undermine the probative value of the description as a whole. 
For these reasons, the submitted job descriptions do not establish what the Beneficiary would be 
doing on a day-to-day basis at the time of the petition was filed. The fact that the Beneficiary will 
manage a business as its senior employee does not necessarily establish eligibility for classification 
as a multinational executive. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" executive in nature. Section 101(A)(44)(B) of the Act. Even though the 
Beneficiary may exercise discretion over the company's operations and possess authority with 
respect to discretionary decision-making, the Petitioner's description of her job duties is insufficient 
to establish that she will primarily perform executive-level duties. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. Section 101(a)(44)(C) of the Act. 
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Matter of B-, LLC 
The Petitioner operates a retail clothing boutique and states that it also distributes its clothing line 
through retailers and wholesalers. The Petitioner appears to import its inventory from its affiliate in 
Pakistan. On the Form I-140, filed in May 2016, the Petitioner indicated that it had four employees. 
The Petitioner's organizational chart submitted at the time of filing shows a total of eight positions 
subordinate to the Beneficiary. The chart shows that she would directly supervise a retail operation 
manager and an exhibition manager. There are two employees - a stitching expert and a store sales 
associate - who report to the retail operations manager. The chart also shows vacancies for a second 
exhibition manager, two exhibition associates, and a second store sales associate. 
The Director requested additional information regarding the Petitioner's staffing levels, including 
their job duties and educational level, evidence of wages paid in 2016, and evidence of payments 
made to any contractors. In response to the RFE, the Petitioner provided the ·requested job 
descriptions and indicated that all of the subordinates are full-time employees. It provided copies of 
the employees' IRS Forms W-2, Wage and Tax Statement, for 2015, and evidence that it paid two 
contractors for unspecified services in 2015. The subordinate staff earned wages that ranged from 
$3,780 to $7,500 during that year. 
The Director found that the employees appear to be working "less than part-time hours" and 
questioned whether they would reasonably relieve the Beneficiary from performing operational and 
administrative tasks. On appeal, the Petitioner states that the Beneficiary oversees three managers 
who receive assistance from subordinate employees who perform the day-to-day work. With respect 
to the Director's observation regarding the employees' low wages, the Petitioner explains that 
business was slow in 2015, but states that it was able to hire full-time employees in 2016. As such, 
the Petitioner claims that "any argument that the company was unable to relieve beneficiary from 
performing day-to-day tasks of the business due to its organizational structure or the hierarchy is 
moot." 
The Petitioner also submits additional evidence of payments made to subordinate employees in 
2016. In the second quarter of 2016, when this petition was filed, the Petitioner paid $1500 to its 
store manager, $3000 to its stitching employee, $945 to its exhibition manager, and $1800 to its 
sales associate. None of these employees received wages commensurate with full-time employment 
at that time - in fact, the Petitioner indicated on its state quarterly wage report that it had only two 
employees in April and May of 2016. Further, there was no demonstrable increase in wages for 
these employees when comparing their wages from 2015, when most employees worked less than a 
full year, to 2016. The Petitioner therefore did not support its claim t~at all of its employees are full­
time workers. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
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Matter of B-, LLC 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise 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. 
The Petitioner claims that the Beneficiary's duties "are clearly executive in nature because those 
duties direct the management of the organization through the Managers" and because the Petitioner 
established that those managers have "direct assistance of employees performing day to day work." 
However, the Petitioner has not established that the Beneficiary's two direct subordinates are 
managers or that it has sufficient staff to remove the Beneficiary from significant involvement in the 
day-to-day operational and administrative work of the business. 
The "exhibition manager" has no subordinates and the Petitioner has not provided a credible 
description of this employee's duties. While there is some evidence in the record indicating that the 
Petitioner participates in fashion exhibitions and events periodically, this evidence does not indicate 
that the Petitioner itself organizes and runs exhibitions, as suggested by the exhibition manager's 
listed duties. For example, the Petitioner states that this employee directs the sale of exhibition 
space to potential exhibitors, secures sponsorship, plans exhibition hall layouts and activities, and 
directs car parking facilities, first aid and security for exhibitions, among other duties. The 
Petitioner reported $2712 in "trade show expenses" on its 2016 tax return, which is consistent with 
its occasional participation in these events. The Petitioner's claim that it supports a full-time 
exhibition manager who performs the stated duties is not credible. The Petitioner has not shown that 
this part-time staff member is a managerial employee. 
Similarly, the Petitioner indicates that the retail operations manager performs some supervisory 
duties, but given that the store sales associate works limited hours, it appears that the manager is also 
required to perform those routine sales tasks in the absence of his or her subordinate. Finally, the 
third subordinate "manager" position depicted on the Petitioner's chart (a second exhibition 
manager), was unstaffed at the time of filing and appears to have remained vacant. Therefore, the 
record does not support the Petitioner's claim that the Beneficiary primarily directs the management 
of the company through subordinate managers. 
As noted, section 101(a)(44)(C) of the Act requires that we take into account the reasonable needs of 
the organization in light of its overall purpose and stage of development if staffing levels are used as 
a factor in determining whether an individual is acting in a managerial or executive capacity. 
However, it is appropriate to consider the size of the petitioning company in conjunction with other 
relevant factors, such as the absence of employees who would perform the non-managerial or non­
executive operations of the company. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Here, the Petitioner has not established that it had a sufficient staff in place at the time of filing to 
relieve the Beneficiary from performing non-qualifying duties associated with the import, sale, and 
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Matter of B-, LLC 
distribution of its products. The Petitioner has two employees engaged in retail sales, one engaged 
in stitching or tailoring of its clothing for customers, and one part-time employee who performs 
exhibition-related duties. On appeal, the Petitioner appears to downplay the importance of the retail 
store, noting that the company "depends on a network of retailers and wholesalers developed by 
beneficiary for the sale of its products" and that these retailers and wholesalers have their own 
networks and employees who engage in the sale of its products. The Petitioner also notes that the 
majority of the orders it obtains in the United States are directly transmitted to its foreign affiliate for 
fulfillment and shipment to the end client. 
However, the Petitioner has not submitted evidence of its sales to U.S. retailers and wholesalers. 
The evidence submitted shows that the Petitioner imports products from its foreign affiliate in 
relatively small quantities and sells those products (and related tailoring and embroidery services) to 
individual retail customers. To the extent that the Petitioner engages in other activities beyond the 
retail store, it appears that any related operational duties would need to be handled by the 
Beneficiary, as such duties have not been assigned to her subordinates. The Petitioner's initial 
description of her duties, which indicated her oversight of marketing and product distribution, 
meetings with high volume customers, and provision of "logistic and analytic support" to the 
operation, tends to support such a conclusion. In addition, we note that the Petitioner does not 
employ administrative support staff or staff to assist with day-to-day financial matters. 
For all of these reasons, the record does not support the Petitioner's claim that its subordinate staff 
sufficiently relieves the Beneficiary from significant involvement in the company's day-to-day 
operational duties such that she would be able to devote her time primarily to executive duties. 
III. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-, LLC, ID# 1437409 (AAO July 13, 2018)