dismissed EB-1C Case: Food Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-F-A-B- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 30, 2018 
MOTION ON ADMINISTRA TIYE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a South African food exporter, seeks to permanently employ the Beneficiary as a 
"function manager - market manager (international expansion coordinator)" 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. § 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 that the 13eneticiary had been employed abroad in a managerial or executive capacity for at 
least one year in the three years prior to his entry into the United States.
1 
The Director also 
determined that the Petitioner did not demonstrate that the Beneficiary would be employed in the 
United States in a managerial or executive capacity. We summarily dismissed the Petitioner's 
appeal noting that the record did not include a brief or statement in support of the appeal. 
The matter is now before us on a combined motion to reopen and reconsider. The Petitioner 
provides evidence that it timely submitted a brief within 30 days of filing its appeal. 2 Further, the 
Petitioner contends that the Director overlooked evidence of the Beneficiary's foreign employment 
and asserts that he abused his discretion in concluding that the Beneficiary would not act in a 
managerial or executive capacity. 
Upon review, we will grant the motion to reopen in part to consider the Petitioner"s brief and 
evidence submitted with the appeal. However, as discussed below, we will deny the motion to 
reopen in part, and deny the motion to reconsider. 
1 
The Director initially denied the petition concluding that the Petitioner did not establish that it had a qualifying 
relationship with the Beneficiary's last foreign employer. The Petitioner appealed that decision to our oftice and we 
withdrew the Dircctor"s decision and remanded the matter to the Director for further review. 
2 Although the brief was received by USC IS, it was not added'to the record prior to our review of the appeal. 
Malter ,if·C-F-A-B- Corp. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on factual grounds and must (I) state the new facts to be provided in the 
reopened proceeding: and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider is based on legal grounds and must (1) state the reasons for 
reconsideration; (2) pe supported by any pertinent precedent decisions to establish that the decision 
was based on an incorrect application of law or policy; and (3) establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
A. Motion to Reconsider 
The Petitioner does not provide suflicient reasons for reconsideration and does not provide pertinent 
precedent decisions to establish that our decision was based on an incorrect application of law or 
policy, as required. 8 C.F.R. § I 03.5(a)(3). The Petitioner's brief was not in the record at the time 
we reviewed the appeaL and our decision to summarily dismiss the appeal was not incorrect based 
on the evidence of record at that time. Accordingly, we will deny the Petitioner's motion to 
reconsider. 
B. Motion to Reopen 
The Petitioner submits additional documentation indicating that it mailed its brief to the Texas 
Service Center within 30 days of filing its appeal on May 5, 2017. The record shows that there was 
a delay in forwarding the brief to our office and it was unavailable at the time we reviewed the 
appeal. Therefore, we will reopen the matter and conduct a de novo review of the record, including 
the Petitioner's brief and evidence submitted with the P.revious appeaL 
11. LEGAL FRAMEWORK 
An immigrant visa is available to a beneflciary 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 affiliate. Section 203(b)(l)(C) of the 
Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement trom 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 at!iliate of the foreign employer, and that the prospective U.S. 
employer has been doing business lor at least one year. See 8 C.F.R. § 204.50)(3). 
2 
Mal!er ofC-F-A-B- Corp. 
Ill. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
We will first analyze whether the Petitioner has established that the Beneficiary would be employed 
in a managerial capacity in the United States. The Petitioner does not claim that the Beneficiary will 
be been employed in an executive capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization: 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A). 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement that clearly 
describes the duties to be performed by the Beneficiary. Beyond the required description of the job 
duties, U.S. Citizenship and Immigration Services (USCIS) reviews the totality of the evidence when 
examining the claimed managerial capacity of a beneficiary, including the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
relieve a beneficiary from perf(mning operational duties, the nature of the business, and any other 
t~1ctors 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 
company's business activities and staffing levels. 
A. Duties 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial capacity. Champion World. Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must prove that 
the Beneticiary will be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCJS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In a support letter provided along with the petition, 3 the Petitioner stated that it and the Beneficiary's 
foreign employer arc engaged in "the manufacture and distribution of diverse South African food 
products," including specialty sauces, drinks, and high-end chocolates. The Petitioner indicated that 
-it sells these products in the United States through its retail store and website. 
3 We note that the l-t40C petition was filed on April 29,2010, and that ihe Beneficiary was previously approved for an 
L-IA nonimmigrant multinational executive and manager visa from May 15,2008. to May 14.2010. 
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Matter ofC-F-A-13- Corp. 
• 
The Petitioner stated that the Beneficiary would be tasked with "overseeing and coordinating 
distribution agreement negotiations" and "overseeing [and] coordinating raw material purchasing 
and supplier agreement negotiations." The Petitioner also indicated that the Beneficiary would be 
responsible for "providing strategic guidance" on U.S. market expansion and international business 
plans and systems. In addition, the Petitioner explained that the Beneficiary would "coordinate 
manufacturing and production" and direct and participate "in onsite visits with clients." 
Furthermore, the Petitioner provided an "activities llow chart" stating that the Beneficiary would 
also be engaged in "IT implementation" and the "selection of systems," as well as liaising "between 
manufacturing and client's specilications" and overseeing "international logistics and delivery 
schedules." 
In response to the Director's most recent request for evidence (RFE) in December 2016, the 
Petitioner emphasized that the Bcncliciary would be supervising managerial subordinates, managing 
the company's "market development in the U.S. as an essential function," and overseeing a 
"projected franchisee program." The Petitioner stated that the Beneficiary would "continue to 
inlluencc decision-making throughout the entire Enterprise" and coordinate the "Product Market 
Process." The Petitioner explained that the Beneficiary's responsibilities would "not involve day-to­
day clerical or administrative matters, sales, marketing or other non-managerial function[s]," but 
acknowledged that the position would include "minor non-managerial duties." 
The Petitioner also clarified that the Beneficiary previously acted as president of the company, but 
that under the current petition he would be employed in the position of "market manager 
(international expansion coordinator)" (MMIEC). The Petitioner indicated that the Beneticiary 
would be "divested" of his duties as president to focus on the MMIEC position. The Petitioner 
provided additional details regarding the duties the Beneficiary performed as president, but stated 
that in his proposed new position as MMIEC, he would perform duties largely consistent with those 
previously provided in support of the petition. 
The Petitioner has only provided a broad overview of the Bencticiary's general responsibilities and 
level of authority without identifying the nature of his actual day-to-day tasks. The Petitioner 
provided limited details or documentation relevant to the duties he would perform as MMlEC, such 
as distribution, raw material, and supplier agreements he will negotiate, strategic guidance he will 
provide, international business plans or systems he will oversee, IT logistics he will improve, 
logistical software he will design and launch, franchisee agreements and construction he will 
manage, or marketing processes he will create and oversee. 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. Fedin Bros. Co .. Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. I989), afj"d, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assoc.1· .. Inc. v. 
Meissner, I997 WL I88942 at *5 (S.D.N.Y.). While the stated responsibilities suggest that the 
Beneficiary is and would be a senior employee in the company, the provided description lacked 
meaningful information regarding what he would actually be doing as part of his day-to-day routine. 
4 
Maller ofC-F-A-13- Cmp. 
Moreover, in contrast to the Bencliciary' s vaguely stated qualifying duties,, the duties and submitted 
documentary evidence indicate that the Beneficiary performs several non-qualifying operational 
duties. For instance, the Beneficiary's duties reference his locus on inventory, IT implementations, 
logistics, shipment, delivery, soliware, and customer surveys, while also mentioning him acting as 
an "FDA agent," and his preparation of quarterly reports. Likewise, the record includes purchase 
orders, invoices, and other transactional documents bearing the Beneficiary's name as a contact, 
indicating that he has likely been engaged in non-qualifying operational tasks in his role as company 
president. Indeed, the Petitioner directly stated that the Beneficiary's duties include "minor non­
managerial duties'' The Petitioner does not document what proportion of the Beneliciary's duties 
would be managerial functions and what proportion would be non-qualifying. This lack of detail is 
important because, as we have discussed, the record includes evidence rellecting the Beneficiary's 
performance of non-qualifying operational tasks that do not fall directly under managerial duties as 
defined in the statute. 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 sum, the submitted documentation suggests that the Beneliciary is, and will be, responsible tor 
many operational aspects of the business, and it has provided little evidence to substantiate that he 
will delegate these tasks to subordinates. The evidence does not indicate, as of the date of the 
petition, that the Beneliciary was removed !rom performing non-qualifying operational tasks and 
that he primarily spent his time focusing on managerial level duties. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in an executive capacity. See. e.g., sections 10l(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" pertorm the enumerated managerial or executive duties); Matter ol 
Church Scientology lnt '/, 19 l&N Dec. 593, 604 (Comm'r 1988). 
The fact that the Beneliciary will manage or direct a business does not necessarily establish 
eligibilitv tor classilication as a multinational manager. By statute, eligibility tor this classification 
requires .that the duties of a position be "primarily" man~gerial in nature. Sections IOI(A)(44)(A) 
and (B) of the Act. Even though 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, the position descriptions alone arc insuflicient to establish that his actual duties would be 
primarily managerial in nature. 
B. Stafling and Operations 
If stafling levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section I 01 (a)( 44 )(C) of the 
Act. 
The Petitioner stated on the Form 1-140 that it had "10 employees and contractors" when it liled the 
petition in April 2010. The Petitioner submitted a "global" organizational chart ret1ecting a board of 
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Mauer o(C-F-A-1!- Cmp. 
directors overseeing an· "operation director/president" position, (presumably the Beneficiary), which 
supervises a "retail outlet," "internet sales," and "wholesale sales," as well as "consultants (local & 
international)." The retail outlet component was shown to include "administrative," "warehouse," 
and "support staff." Further, the chart also reflected the foreign employer's organizational structure 
including a board of directors overseeing an operations manager, and vice presidents of finance, 
sales, and marketing, whi lc the vice president of sales was shown as supervising warehouse and 
administration and procurement depanments. 
Later in response to a Director's notice of intent to deny in 2011, the Petitioner submitted another 
"global" organizational chart, reflecting the Petitioner's board of directors supervising an "interim 
manager," who oversaw an accounting employee, an employee devoted to "internet and customer 
service," and a wholesale and warehouse employee overseeing "distributors and contractors." 
Meanwhile, the chart indicated that the foreign board of directors oversaw an operations manager 
supervising an e-eommerce and marketing employee and seven part-time "labeling" employees. 
Further, in response to the Director's request for evidence (RFE) in October 2016 (issued after we 
remanded the matter), the Petitioner provided yet another organizational chart indicating that a board 
of directors supervised the Beneficiary acting as president, who in turn oversaw a vice president and 
the Beneficiary's proposed MMIEC position. The chart also indicated that the Beneficiary, as 
MMlEC, would supervise both the Petitioner and the foreign employer. In the case of the Petitioner, 
the chart reflected an operational manager supervising an accounting firm, a retail manager, a 
warehouse manager, and a statT accountant. The retail manager was shown to supervise a contracted 
"web host," a warehouse manager, and "warehouse laborer." 
The Petitioner must establish that all eligibility requirements for the immigration benelit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § !03.2(b)(l). 
The Petitioner has not sufficiently documented and articulated its organizational structure and 
staftlng levels as of the date of filing. 
Rather, the evidence in the record leaves significant question as to whether the Petitioner had 
sufficient operational level employees to relieve the Beneficiary from significant involvement in 
non-qualifying tasks when it tiled the petition. Prior to 2016, the Petitioner submitted little 
supporting evidence to substantiate that it employed ten employees and contractors at the time of 
filing. However, in response to the 2016 RFE, the Petitioner submitted conflicting IRS Form 941 
Employer's Quarterly Federal Tax Returns ti·om the first quarter of 2010, one indicating that it 
employed two employees and that it paid $15,600 in wages, another retlecting that it employed nine 
and paid $13,862.65 in wages, and yet another showing that it had nine employees and paid $75,600 
m wages. 
Otherwise, the Petitioner submits little other supporting evidence to substantiate its employees and 
organizational structure in place as of the date of the petition, such as IRS Form W-2s Wage Tax 
Statements or I 099s, state tax documentation, payroll documentation, or other such evidence trom 
2009 and 2010. In fact, the only other evidence of wages paid to employees is the Beneficiary's IRS 
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Mauer ofC-F-.4-/J- Corp. 
Form W-2 for 2015. The Petitioner provides little evidence to rectify the discrepancies in the 
provided IRS Forms 941 corresponding to the date of the petition. This leaves material question as 
to its assertion that it employed ten employees and contractors in April 2010 and that it had 
sufficient employees to relieve the Beneficiary from non-qualifying operational tasks. 
Furthermore, in an organizational chart submitted in 20 II the Petitioner indicated that it had 
employed its asserted operations manager as an "interim manager" and its claimed stair accountant. 
However, the Petitioner also submitted employment offer letters in 2016 rel1ecting that the 
. operations manager and staff accountant did not join the company until August 2012. The Petitioner 
must resolve discrepancies in the record with independent, objective evidence pointing to where the 
truth lies. Maller ofHo, 19l&N Dec. 582,591-92 (BIA 1988). 
This lack of evidence to corroborate the information provided in the organizational charts is 
material, as the submitted evidence indicates that there are several non-qualifying operational duties 
performed by the organization and the Petitioner has not sufticiently supported who performed these 
duties or explained how the Beneficiary was, and would be, primarily relieved of these tasks. The 
Petitioner provided evidence and agreements indicating that it issues regular invoices, maintains a 
website for accepting orders. ex pons and imports goods, ships orders, maintains records of these 
transactions, processes orders, amongst other operational tasks. However, the Petitioner does not 
provide a clear picture of its structure or describe who performed these non-qualifying operational 
duties as of the date of the petition. Indeed, as of the date of the appeal, the Petitioner still has not 
submitted detailed duty descriptions for the Beneficiary's claimed subordinates. The Petitioner 
stated that it employed ten "employees and contractors" at the time it tiled the petition, but it docs 
not indicate which personnel were employees and which were contractors, identify them by name, or 
submit any payroll evidence to support their employment and engagement. 
The statutory definition of "managerial capacity" allows for both "personnel man.agers" and 
"function managers." See section IOI(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that a ;;first line supervisor is not considered to be acting in a n1anagerial capacity 
merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professional." Section IOI(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F. R. § 214.2(1)( I )(ii)(B)(J). 
However, the Petitioner has not submitted sufficient evidence to substantiate the Beneliciary's 
subordinates, their education, or the duties they performed. Therefore, we cannot conclude that the 
Beneliciary was primarily engaged in supervising managers, supervisors, or professionals as of the 
date of filing. 
On appeal, the Petitioner claimed that the Beneliciary will act as a function manager, The term 
"function· manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
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organization. See section IOI(a)(44)(A)(ii) of the Act. !fa petitioner claims that a beneficiary will 
manage an essential function, it must clearly describe the duties to be performed in managing the 
essential function. In aclclition, the petitioner must demonstrate that "(I) the function is a clearly 
cletinecl activity: (2) the function is 'essentiaL' i.e., core to the organization: (3) the beneficiary will 
primarily manage, as opposed to perjimn, the function; ( 4) the beneficiary will act at a senior level 
within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary 
will exercise discretion over the function's clay-to-day operations." Marler of' G- Inc., Adopted 
Decision 2017-05 (AAO Nov. 8, 2017). 
The Petitioner has not demonstrated that the Beneficiary would act as a function manager. The 
submitted evidence indicates that as of the date of the petition the Beneficiary likely performed a 
number of non-qualifying operational tasks, and it has not properly substantiated that it had 
sufficient operational employees to relieve him from these duties at this time. As noted, even as of 
the date of this motion, the Petitioner still has not sufficiently documented the existence of its 
employees through detailed duty descriptions and supporting tax and payroll documentation. 
Regardless, we again note that the Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). 
To quality as a function manager a Bcneliciary need not have subordinates. However, the Petitioner 
must establish that he would primarily perform qualifying managerial duties, and the Petitioner must 
demonstrate how it would relieve him from significant involvement in non-qualifying tasks at the 
time of filing. As we have discussed, the evidence indicates that there were numerous operational 
level duties to be performed, and the Petitioner has not demonstrated who performed these duties. 
The Petitioner has also articulated and documented few managerial level duties performed by the 
Beneficiary, and it has submitted little supporting documentation indicating that he was delegating 
non-qualifying tasks to subordinates. In addition, the Petitioner has not clearly articulated the 
function the Beneficiary manages. Therefore, the Petitioner has not demonstrated that the 
Beneficiary would have acted as a function manager as of the date of the petition. 
For the reasons discussed, the Petitioner has not established that it would employ the Beneficiary in 
a managerial capacity. 
IV. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also denied the petition concluding that the Petitioner did not establish the 
Beneficiary's employment abroad in a managerial or executive capacity for one year in the three 
years preceding his entry into the United States. See 8 C.F.R. § 204.5(j)(3). The Director stated that 
the Petitioner did not submit a list of the Beneficiary's duties, evidence of his foreign subordinates, 
or evidence of his employment abroad for the required one year period. 
The Petitioner asserts that it submitted a list of the Beneficiary's foreign duties along with the appeal 
it states were overlooked by the Director. Following a review of the evidence, we concur with the 
8 
Mauer ofC-F-A-B- Corp. 
Director's decision that the Petitioner has not established that the Beneficiary was employed abroad 
in a managerial or executive capacity for the required one year. Since the other ground for dismissal 
is dispositive of the Petitioner's motion, we will not address this issue further. Nevertheless, we note 
that if the Petitioner seeks to employ the Beneficiary in this classification in the future, it will need to 
submit sufficient evidence to establish that the Beneticiary was employed abroad in a managerial or 
executive capacity for the requisite one-year period. 
V. CONCLUSION 
The Petitioner has not established that the Beneficiary would act in a managerial or executive 
capacity in the United States or that he acted in a managerial or executive capacity abroad lor at least 
one year in the three years preceding his entry to the United States as a nonimmigrant. Therefore, 
the petition remains denied. 
ORDER: The motion to reopen is granted in part and denied in part. 
ORDER: The motion to reconsider is denied. 
Cite as Maller ofC-F-A-B- Clnp., lD# 1103849 (AAO Apr. 30, 2018) 
9