dismissed EB-1C Case: Food Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re : 10545987 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 9, 2022 
Form I-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner , a food manufacturer , seeks to permanently employ the Beneficiary as director of finance 
for one of its brands within its Refrigerated Business Unit (RBU) under the first preference immigrant 
classification for multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b )(1 )(C), 8 U.S.C. § 1153(b)(l )(C). 
The Director of the Nebraska Service Center denied the petition , concluding that the record did not 
establish that the Petitioner will employ the Beneficiary in the United States in an executive capacity. 
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. LAW 
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 orto its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form I-140 , Immigrant Petition for Alien Worker , must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, thatthe beneficiary is coming to work in the United States forthe 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. EMPLOYMENT IN AN EXECUTIVE CAP A CITY 
The Petitioner asserts that it seeks to employ the Beneficiary in an executive capacity. It does not 
assert that it seeks to employ the Beneficiary in a managerial capacity. The Director found that the 
Petitioner did not establish thatthe proffered position meets the requirements of 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. 
To establish that a beneficiary is eligible for immigrant classification as a multinational executive, a 
petitioner must show that the beneficiary will perform all four of the high-level responsibilities set 
forth in the statutory definition at section 10 l(a)( 44 )(B) of the Act. If a petitioner establishes that the 
offered position meets all four elements set forth in the statutory definition, the petitioner must then 
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. USCJS, 469 F.3d 
1313, 1316 (9th Cir. 2006 ). In determining whether the beneficiary's duties will be primarily 
executive, we consider the description of the job duties, the company's organizational structure, the 
duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the beneficiary's actual duties and role in the business. 
When examining the managerial or executive capacity of a given beneficiary, we will look to 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 a 
managerial or executive capacity. See 8 C.F.R. § 204.5U)(5). Beyond the required description of the 
job duties, we examine the company's organizational structure, the duties of a beneficia1y'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 and its staffing levels. 
The Petitioner asserts that the Beneficiary will be "directing all financial tasks for the organization." An 
organizational chart identifies the Beneficiary as the director of finance not for "the organization," as 
stated, but rather for one brand within a particular subdivision, the RBU. The Petitioner provides a list of 
the Beneficiary's responsibilities, with the approximate time devoted to each: 
• Direct ... financial process improvement and cost savings projects, along with the first 
time development of policies, procedures, reports and analysis (15%) 
• Manage the development and maintenance of timely and accurate financial statements 
and reports ... (15%) 
• Direct the development and implementation of compliance with internal financial and 
accounting policies and procedures (5%) 
• Oversee the preparation of all supporting financial information for the annual audit and 
liaise with the Board's Audit Committee and the external auditors as necessary (15%) 
• Ensure the documentation and maintenance of complete and accurate supporting 
information for all financial transactions ... (10%) 
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• Lead the development and maintenance of financial accounting systems ... (10%) 
• Review monthly results and implement monthly variance reporting ( 5 % ) 
• Oversee the development and implementation of policies and procedures to ensure that 
personnel and financial information is secure ... (5%) 
• Manage the acquisition of capital assets and ensure that assets are properly recorded, 
ammiized, and disposed of, as appropriate (5%) 
• Establish guidelines for budget and forecast preparntion (5%) 
• Liaise with other functional groups supporting the business ... to identify issues impacting 
the business and develop recommendations for improvement (5%) 
• Attend board meetings representing the Finance department ( 5%) 
In a request for evidence ("RFE"), and again in the denial notice, the Director concluded that the 
description is "broad and ambiguous," describing areas of responsibility rather than "the specific tasks" 
the Beneficiary performs in order to meet those responsibilities. On appeal, the Petitioner submits a new 
copy of the job description, signed by a company official. The Director had cited the lack of that signature 
as an issue, but not as the sole basis for denial. The job description itself has the same deficiencies the 
Director had previously noted of being "broad and ambiguous," and the Petitioner does not address 1hose 
material deficiencies in the job description on appeal. 
Despite notice in the Director' sRFE and in the Director's decision that the job description lacks necessary 
detail, the Petitioner has submitted essentially the same job description three times, with no substantive 
changes or required further elaboration except for the addition of time percentages as shown above. 
Specifics are clearly an impmiant indication of whether a beneficiary's duties are primarily executive 
in nature. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d41 
(2d. Cir. 1990). Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties. The actual duties themselves will reveal the true nature of the employment. Id. 
The organizational chart indicates that the Beneficiary reports to the chief financial officer for the RBU, 
indicating thatthe Beneficiary is not the highest-ranking figure with respect to the RBU' s finances. Tue 
same chart identifies three immediate subordinates below the Beneficiary: 
• Assistant Director, Financ 
• Manager, Finance (Cold Cuts) 
• Manager, Finance (Bacon/Hot Dogs) 
The chart does not show the personnel structure, if any, below those three named subordinates. 
The Petitioner submits the same job descriptions for each of the three positions, listing five "Key 
Responsibilities": 
• Develop category financial plans and monitor delivery against objectives 
• Ensure effective and efficient use of A/CIT budgets 
• Commodity I Price management 
• Develop and update new product propositions 
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• Support cross-category initiatives and productivity efforts 
Because the three job descriptions are identical, each description refers to the position as "Associate 
Director Category Finance" although two of the three named individuals have the title "Manager" rather 
than "Associate Director." Each description also includes a list of "Minimum Qualifications," the last 
bullet point under the minimum qualifications section reads "Preferred Qualifications." The presence of 
this unexplained phrase makes it unclear whether the minimum qualifications are all preferred 
qualifications, or whether the description is incomplete. 
The Petitioner submits copies of three internal reports, stating they were "prepared by [the Beneficiary] 
with the support of his team," but the documents themselves contain no attribution of authorship. A four­
year strategic plan for the RBU includes financial figures but is not exclusively or primarily focused on 
finance. It also extensively addresses issues such as branding and marketing that presumably lie outside 
the Beneficiary's areaofresponsibility. The other two documents- an annual operating plan fortheRBU 
and a performance review for a particular brand- are more finance-focused, but they were submitted 
without attribution. Also, no one in a position to know the Beneficiary's role in their preparation has 
explained whatthat role was. As noted above, the Beneficiary is director of finance for one particular 
brand, rather than the entire RBU which encompasses multiple brands of cold cuts, other meats, cheeses, 
and other dairy products, but two of the submitted reports concern the entire RBU rather than the specific 
brand under the Beneficiary's s authority. 
The Petitioner has submitted vague and incomplete information aboutthe Beneficiary' sactual duties, and 
the subordinate personnel structure that exists. Without an adequate job description, we are unable to 
accurately determine whether the Beneficiary, "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." We also cannot detennine that there is sufficient staff ing 
to relieve him from having to primarily perform non-qualifying tasks, and that he would primarily 
perform in an executive capacity as requested. The Petitioner has not overcome the stated ground for 
denial of the petition, and therefore we will dismiss the appeal. 
III. ADDITIONAL ISSUE 
Beyond the Director's decision, the Petitioner has not established that it has a qualifying relationship 
with the Beneficiary's former foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show that 
the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. 
entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 
section 203(b )(1 )(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
The regulation at 8 C.F.R. § 204.5(j)(2) defines a "subsidiary" as: 
a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, 
more than half of the entity and controls the entity; or owns, directly or indirectly, half 
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-
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50 joint venture and has equal control and veto power over the entity; or owns, directly 
or indirectly, less than half of the entity, but in fact contra ls the entity. 
The regulation and case law confirm that ownership and control are the factors that determine whether 
a qualifying relationship exists between United States and foreign entities for purposes of this visa 
classification. 1 In the context of this visa petition, ownership refers to the direct or indirect legal right 
of possession of the assets of an entity with full power and authority to control; control means the 
direct or indirect legal right and authority to direct the establishment, management, and operations of 
an entity. 2 
The record indicates that the Beneficia 's former foreign employer, _________ 
is a subsidiar o The petitioning U.S. employer is a subsidiary of 
the Therefore, the Petitioner must establish a qualifying relationship 
between Initially, the Petitioner stated that "[b]]oth the petitioner. .. and the beneficiary's 
prior foreign employer abroad ... are owned and controlled byl I ... and, therefore, 
are affiliated companies." The initial submission established that has an ownership stake in but 
not control. 
Responding to a request for evidence of a qualifying relationship, the Petitioner contends that I 
in fact, has full control over management and executive decisions for as well as actual, substantial 
control of I Board of Directors." The record, however, does not support this assertion. 
The Petitioner submits documentation from the Securities and Exchange Commission (SEC) showing 
that, as of February 2018, owned 23.9% of whilel I owned26.7%, 
with no other major shareholders. These figures are outdated. In its most recent Form I 0-K Annual 
Report, filed in February 2022 stated: "As ofDecember25,2021,I I own approximately 
42% of our common stock."3 Even taken together, now own a plurality of shares, but not a 
majority. 
Documents in the record show that has an I I-member board of directors, with three of those 
members "selected by ; three "selected b ______ ; and the remaining five 
"selected by The chief executive officer o is also chairman of the board of but this is 
not prim a facie evidence thaO controls! I because the eight other board members can outvote the 
three members from The Petitioner has not established thaLJcontrols the votes of any of the other 
eight board members, or that the chairman of the board has the authority to veto measures favored by the 
majority of the board but opposed by 
The Petitioner submits SEC documents referring to a "shareholders' agreement" betweenD and 
but this agreement is limited to each company agreeing to "vote their shares ... in favor of [ each other's] 
nominees" for board positions. The agreement does not compel three board members to vote in 
concert with the three board members from on other matters. 
1 See MatterofChurchScientologyint 'l, 19 T&NDec. 593 (BIA 1988); seealsoMatterofSiemens Med. Sys., Inc., l 9T&N 
Dec. 362 (BIA 1986); Matter of Hughes, 18 T&NDec. 289(Comm'r 1982). 
2 
MatterofChurchScientology Int'l, 19 J &N Dec at 595 
3 
https://www.sec.gov/ Archives/edgar/data .htm (last accessed Sept. 9, 
2021). 
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The Petitioner contends tha0controls0because "four (4) of the most senior executive positions at 
I I are held by Partners of I, including [the chief executive officer]. As such,I lhas 
full control over management and executive decisions for The Petitioner has not, however, 
established that the partners in high-ranking positions aLJ are independent of the authority of 
I I board of directors. 4 The Petitioner submits no first-hand evidence to show that0has yielded 
"full control" of toOven though owns more shares. 
For these reasons, the Petitioner has not established that it has a qualifying relationship with the 
Beneficiary's former foreign employer. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
4 !bylaws, available via the SEC's website, state: "The Chief Executive Officer shall be responsible to the Board 
of Directors and shall perform such otherdutiesasshall be assigned to him or her by the Board of Directors." https://www. 
sec.gov/Archives/edgar/dataA lhtm (last visited Sept. 9, 
2022). 
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