dismissed EB-1C Case: Finance

U.S. Citizenship 
and Immigration 
Services 
In Re : 8396597 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 21, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner , describing itself as a leading international financial institution, seeks to permanently 
employ the Beneficiary as a senior vice president 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 Nebraska Service Center denied the petition concluding the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity in the United 
State s. Further , the Director determined the Petitioner did not demonstrate that the Beneficiary was 
employed abroad in a managerial or executive capacity. 
On appeal , the Petitioner asserts that discrepancies in the submitted evidence noted by the Director 
were due to errors by counsel and their lack of understanding the Beneficiary 's position . The 
Petitioner contends the Beneficiary would act in an executive capacity in the United States. 
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 
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 pro spective 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 act in 
an executive capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in a managerial capacity. 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(i)(5). Beyond the required description of the job duties, we examine 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, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, 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). 
The Petitioner stated it is a wholly owned subsidiary of a large international bank based in Korea. The 
Petitioner stated that the Beneficiary would manage the company's "overall FINCO's commercial 
lending practice" ranging from "corporate funding operations and management, commercial mortgage 
loans (CML) and special asset management, international export financing, and corporate client 
development." The Petitioner submitted a couple of different U.S. duty descriptions for the 
Beneficiary on the record; however, it provides the following duties on appeal: 
• Direct to enhance profitability by increasing loan assets through aggressive 
marketing and corporate strategy for large blue-ship [sic] Asian companies in the 
United States while securing stable, long-term corporate clients and expanding 
market share by strengthening and solidifying relationships; coordinate corporate 
clients for their long-term growth while setting up FINCO's corporate policies and 
goals, and objectives of the international financial transactions while overseeing the 
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international banking operations in the United States and coordinate the same with 
the parent company. - 20% of his time. 
• Direct the financial investment and business management of the FINCO while 
keeping close coordination with other company subsidiaries and executives or 
managers and oversees all the activities of the FINCO's marketing and management 
operation in order to obtain best efficiency and economy of operations and 
maximize profits. - 20% of his time. 
• Direct in preparing and presenting reports concerning business activities, expenses, 
budgets, government statues and rulings, and other items affecting businesses or 
program services; rule working protocol regarding improvement of operations and 
financial conditions of the FINCO. -10% of his time. 
• Direct the international investment operations of finding new high-graded 
companies and provide loans after reviewing the companies' business plans; direct 
the economic, industrial, and corporate developments through the analysis of 
investment information obtained from financial publications and services, 
investment banking firms, government agencies, trade publications, company 
sources, and his subordinate professional staff. -10% of his time. 
• Direct the commercial mortgage loan (CML) operations to the United States and 
international corporate clients warranted by their real estate investment and 
business plans and will be in charge of the other business matters such as syndicated 
loan business, project financing business & special trade financing business. [The 
Beneficiary] will also direct the management ofloans and written-off loans of other 
real estate (ORE) and legal actions. -10% of his time. 
• Discuss issues with executive officers, board members and managerial staff 
members in [parent foreign company] headquarters and the FINCO in order to 
counter and minimize operational risks. As for loan matter, [the Beneficiary] will 
obtain approval from appropriate loan authority including review of branch loan 
committee. -10% of his time. 
• Identify the U.S. external market changes that may impact on the asset portfolio; 
direct analyzing performance of the FINCO and it subordinate staffs in meeting 
objectives to determine areas of potential cost reduction, program enhancement, or 
policy change. -10% of his time. 
• Direct collecting, comparing, and analyzing market information such as interest 
rates of bankers acceptance, federal fond rate and euro dollar, and other market 
trends from brokers, newspapers, fonding center, the headquarter at [the foreign 
parent company] and other Korean banks in the US east coast region. -5% of the 
time. 
• Direct human resources activities, including the approval of human resource plans 
and activities, the selection of managers and other high-level staff: and 
establishment and formation of major departments. Specifically, [the Beneficiary] 
will direct and indirect professional staffs such as evidenced by the US 
organization. -5% of his time. 
In addition to the above U.S. duty description, the Petitioner also provided additional details related 
to each category above. However, in the above duty description and the Beneficiary's expanded tasks, 
the Petitioner listed several non-qualifying operational tasks reflective of his direct performance of 
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financial services rather than executive-level goal and policy setting. For instance, the Petitioner stated 
the Beneficiary would be tasked with securing clients, providing updates to senior management on the 
company's loan portfolio, overturning loan approvals, and performing supplemental analysis on 
corporate limits. Likewise, it indicated the Beneficiary would provide opinions on possible 
repercussions on the expected return of the company's overall loan portfolio and interest rate changes 
and submit inputs about factors that may affect the credit support. It also explained that the Beneficiary 
attended specific industry events, performed ad hoc and random tests to "review the loan management 
framework" and reviewed "enhancements of existing credit ratings of the outstanding borrower." 
Further, the Petitioner stated the Beneficiary would be involved in "what-if scenario testing done to 
quantify the impact of unusual/unforeseen events on credit risks analysis," reporting to the company's 
"top management regarding delinquent loan details," and "routinely check[ing] the procedural aspect 
of loan management ... entailing credit risk management activities." 
In sum, a substantial portion of the Beneficiary's duty description appeared to reflect that he would be 
primarily tasked with performing financial analysis, acting in an advisory and operational role for the 
benefit of the company's executives. In fact, the Beneficiary's duty description indicated he would be 
"involved in" the decision-making process, but not making executive-level decisions in his own right. 
The Petitioner asserted on the record that the Beneficiary oversaw a team of professionals to whom he 
delegated the non-qualifying aspects of his department, including the apparent operational tasks 
mentioned above. However, there is no supporting evidence on the record of the Beneficiary directing 
his claimed subordinates or delegating non-qualifying operational tasks to them. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See sections 101 (a)( 44 )(B) of the Act. 
Here, the Petitioner does not sufficiently document what proportion of the Beneficiary's duties would 
be executive functions and what proportion would be non-qualifying. The Petitioner lists the 
Beneficiary's duties as including both executive tasks and administrative or operational tasks but does 
not quantify the time the Beneficiary spends on these different duties. For this reason, we cannot 
determine whether the Beneficiary is primarily performing the duties of an executive. See IKEA US, 
Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
In addition, there is little detail and no supporting documentation to substantiate the Beneficiary's 
performance of executive-level duties, such as the marketing, corporate, or lending strategies he 
directed, the policies and procedures he put in place, financial investments he decided on, marketing 
activities he oversaw, or human resources plans or "major departments" he implemented. Indeed, the 
Petitioner's assertion that the Beneficiary would be tasked with "the selection of managers and other 
high-level staff: and [the] establishment and formation of major departments" seems questionable 
since the provided organizational charts reflect that he would only supervise a handful of subordinates. 
Further, as noted, there is no supporting documentation to substantiate the Beneficiary's involvement 
in the formation of whole departments and other personnel matters. This lack of detail and 
documentation to corroborate the Beneficiary's asserted executive-level role is noteworthy since the 
Petitioner asserts that he has been acting in this role as a nonimmigrant in the United States for 
approximately four years since August 2014. 1 Specifics are clearly an important indication of whether 
a beneficiary's duties are primarily executive in nature, otherwise meeting the definitions would 
1 The petition was filed on August 31, 2018. 
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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). 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct a portion of 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 the Petitioner'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 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 act in an executive capacity in the 
United States. 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 10l(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 beneficiary must primarily 
focus 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. 
In support of the petition, the Petitioner submitted an organizational chart reflecting that the 
Beneficiary would report to the president and chief executive officer of the company as the head of 
the "Corp. Loan, EXIM" department. The chart also indicated that the Beneficiary would oversee 
three subordinates, a "Corp. Loan/EXIM Manager" and two supervisors. Elsewhere in a support letter, 
the Petitioner submitted a table indicating that the Beneficiary would supervise a vice president, an 
assistant vice president, and a supervisor. Later, in response to the Director's request for evidence 
(RFE), the Petitioner stated that the Beneficiary "supervises several subordinate professionals who 
perform the daily activities required to carry out research and drafting reports for his review" and also 
emphasized his "professional staff in the USA." The Petitioner again submitted a table in response to 
the RFE reflecting that the Beneficiary supervised a vice president, assistant vice president, and a 
supervisor. Now, on appeal, the Petitioner provides two U.S. organizational charts, the first reflects 
the Beneficiary supervising a "Corp. Loan/EXIM Manager" overseeing two "supervisors," while the 
second indicates that he oversees the "Corp. Loan/EXIM Manager" supervising an assistant manager 
who in tum oversees a subordinate associate. In addition, both organizational charts reflect that the 
Petitioner has 15 total employees. 
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In sum, the Petitioner has consistently submitted conflicting information as to the Beneficiary 
subordinates and its claimed organizational structure leaving question as to his asserted role. For 
instance, the Petitioner initially indicated the Beneficiary would supervise one manager and two 
supervisors, but elsewhere asserted that he oversaw a vice president, assistant vice president, and a 
supervisor, none of which supervised each other. Later, in response to the RFE noting these 
discrepancies, the Petitioner again indicated that the Beneficiary oversaw three "professionals," 
namely the asserted vice president, assistant vice president, and supervisor. Now, on appeal, the 
Petitioner again provides two different organizational charts, one reflecting a manager overseeing two 
supervisors, and another with him supervising a manager overseeing an assistant manager, who in turn 
oversees an associate. Furthermore, the two provided organizational charts show 15 total employees; 
however, the Petitioner also submitted state employer's quarterly wage documentation from the third 
quarter of 2018 reflecting 24 employees and few of these individuals listed in the tax documentation 
match those included in either organizational chart. These various material discrepancies leave 
substantial uncertainty as to whether the Beneficiary acts in an executive-level role in the United 
States. The Petitioner must resolve inconsistencies and discrepancies 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). 
This uncertainty is heightened by the Petitioner's additional conflicting statements elsewhere on the 
record. First, it is notable that none of the asserted organizational charts appear to reflect the 
Beneficiary acting within a complex organizational hierarchy, but mostly show him overseeing three 
professional subordinates. Further, as we discussed, there is no supporting documentation to 
corroborate the Beneficiary's oversight of any subordinates, nor evidence of him setting the broad 
goals and policies of the organization. In fact, in apparent conflict, the Petitioner stated in the 
Beneficiary's duty description that he would be tasked with the "selection of managers and other high­
level staff, and [the] establishment and formation of major departments," but none of the 
organizational charts reflect his responsibility for this type of organizational structure. The Petitioner 
attempts to explain these discrepancies on appeal by stating that its former counsel did not fully 
understand the Beneficiary's role. However, these apparent discrepancies survive on appeal. In fact, 
there are additional inconsistencies provided on appeal and the Petitioner has provided little supporting 
evidence to substantiate the Beneficiary's claimed executive-level role. The Petitioner has also 
provided little evidence to establish the claimed ineffective assistant of its former counsel. 2 
2 The Board oflmmigration Appeals (the Board) established a framework for asserting and assessing claims of ineffective 
assistance of counsel. See Matter of Lozada, 19 T&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). 
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of ineffective assistance: 
• A written affidavit of the Petitioner attesting to the relevant facts. The affidavit should provide a detailed 
description of the agreement with former counsel (i.e., the specific actions that counsel agreed to take), 
the specific actions actually taken by former counsel, and any representations that former counsel made 
about his or her actions. 
• Evidence that the Petitioner informed former counsel of the allegation of ineffective assistance and was 
given an opportunity to respond. Any response by prior counsel (or report of former counsel's failure 
or refusal to respond) should be submitted with the claim. 
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In sum, the Petitioner provided a duty description and asserted organizational charts indicating that 
the Beneficiary would primarily act in an operational role monitoring the company's loan activities, 
performing research and testing, and advising upper level management, rather than acting in an 
executive capacity in an elevated position within a complex organizational hierarchy. The 
preponderance of the evidence appears to indicate that the Beneficiary would be primarily tasked with 
the organization's day-to-day loan operations rather than its broad goals and policies. 
For the foregoing reasons, the Petitioner has not demonstrated that the Beneficiary would act in an 
executive capacity in the United States. 
III. MANAGERIAL CAP A CITY ABROAD 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve its arguments regarding whether the Beneficiary acted in a managerial capacity in his 
former position abroad. 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). 
ORDER: The appeal is dismissed. 
• If the Petitioner asserts that the handling of the case violated former counsel's ethical or legal 
responsibilities, evidence that the Petitioner filed a complaint with the appropriate disciplinary 
authorities ( e.g., with a state bar association) or an explanation why the Petitioner did not file a complaint. 
Id. at 639. These documentary requirements are designed to ensure we possess the essential information necessary to 
evaluate ineffective assistance claim and to deter meritless claims. Id. Allowing former counsel to present his or her 
version of events discourages baseless allegations, and the requirement of a complaint to the appropriate disciplinary 
authorities is intended to eliminate any incentive for counsel to collude with his or her client in disparaging the quality of 
the representation. We may deny a claim of ineffective assistance if any of the Lozada threshold documentary requirements 
are not met. Castillo-Perez v. INS, 212 F .3d 518, 525 (9th Cir. 2000). 
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