dismissed EB-1C Case: Footwear

U.S. Citizenship 
and Immigration 
Services 
In Re: 26273974 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 17, 2023 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, which imports, exports, and sells shoes, seeks to permanently employ the Beneficiary 
as its chief commercial officer under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S .C. 
§ 1 l 53(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, concluding that the record did not 
establish that the Petitioner has a qualifying relationship with the Beneficiary's foreign employer; the 
Beneficiary has been employed abroad in a managerial or executive capacity; and the Petitioner will 
employ the Beneficiary in the United States in a managerial or executive capacity. 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 nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 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 or to 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, 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. ANALYSIS 
The Petitioner asserts that it is the subsidiary of a similarly-named company in Brazil, which has 
employed the Beneficiary as its chief commercial officer since November 2015. The Beneficiary has 
spent most of his time in the United States since August 2019, first as a B-2 nonimmigrant visitor and 
then, since November 2019, as an L-IA nonimmigrant working as the Petitioner's chief commercial 
officer. The Beneficiary was still in L-lA status when the Petitioner filed the present immigrant 
petition in August 2021. 
We withdraw the Director's determination that the Petitioner has not established a qualifying 
relationship with the foreign company that previously employed the Beneficiary. The Director based 
the adverse conclusion primarily on a discrepancy on a share certificate and the lack of conoborating 
documentation. The record supports the Petitioner's assertion that the apparent discrepancy is the 
result of an error in the preparation of the share certificate, and the record is consistent as to the 
identities of the shareholders. Also, the Director concluded that the Petitioner did not submit a relevant 
tax document (Schedule G ofIRS Form 1120), but that document was already in the record at the time 
of the Director's decision. 
The remaining issue concerns the Beneficiaty's claimed executive capacity in both the United States 
and abroad. The Petitioner does not claim that the Beneficiary will be or has been employed in a 
managerial capacity. Therefore, we restrict our analysis to the question of 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 10l(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. USCIS, 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. If staffing levels are used as a factor in determining whether an individual is acting in an 
executive capacity, we must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 101(a)(44)(C) of the Act. 
In the denial decision, the Director concluded that the Petitioner had not shown that the Beneficiary's 
position meets all the requirements of an executive capacity. On appeal, the Petitioner asserts that it 
had submitted an "extensive statement describing Beneficiary's proposed position," along with "an 
organization chart, a description of all the positions within the company, and Employer State Quarterly 
Reports." The Petitioner asserts that this evidence meets its burden of proof 
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As explained below, we conclude that, while the Beneficiary has discretionary authority over the 
petitioning U.S. employer, the Petitioner has not established that it has and will continue to employ 
the Beneficiary in a primarily executive capacity. Having discretionary authority and a managerial or 
executive title does not, in and of itself, mean a person is employed in a managerial or executive 
capacity. Matter of Church Scientology Int'l, 19 I&N Dec. 593,604 (Comm'r 1988). 
In a statement submitted with the petition, the Petitioner stated: "As Chief Commercial Officer, [the 
Beneficiaty] will develop and establish the policies and objectives of our company following the 
general directives established by our Board of Directors and our corporate charter." The Petitioner 
indicated that the Beneficiary "will spend 60% of his time" on the following: 
• Handle special assignments, do an in-depth analysis, follow up on various files and 
work closely in concert with all members of the Senior Management Team. 
• Responsible for the implementation and achievement of his Business Area's 
mission, goals, and commercial objectives. Develop long-term plans and budgets 
for the department and its activities, monitor progress, assure adherence, and 
evaluate performance. Ensure systems and procedures are necessary for the smooth 
operation of the department. 
• Maintain a climate that attracts, retains, and motivates top-quality personnel. 
Recruit, train, appraise, supervise, support, develop, promote, and guide qualified 
personnel. 
• Develop strategic direction and plans for the company concerning all commercial 
functions including sales, marketing, business development, and customer support/ 
customer experience. 
• Manage commercial and sales operations organization, and manufacturer's agents, 
distributors, and value-added-resellers to ensure sales targets are met or exceeded. 
The Petitioner stated that the Beneficiary would spend the remaining 40% of his time on the following: 
• Develop annual marketing plans per region and market verticals. 
• Develop and maintain initiatives to achieve a to date [sic] competitive analysis 
portfolio. 
• Develop annual and long-term budgets for revenues as well as expenses. 
• Develop and monitor quality metrics to ensure outstanding service and customer 
support. 
• Cultivate a culture of focused hard work and openness. 
• Establish and monitor progress against key performance indicators. 
• Identify and develop new market opportunities for the company's product portfolio. 
• Develop and drive the pricing strategy of the organization. 
• Develop and administer incentive plans which entice individuals as well as teams 
to perform successfully against the objectives while respecting the budget. 
• Accuracy- Ability to perf01m work accurately and thoroughly. 
• Problem-solving - Brings a problem-solving mindset to any challenging situation. 
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Because the time percentages apply to two diverse groups of items, the percentages do not shed much 
light on how the Beneficiary would spend most of his time. Several of the listed items are general 
responsibilities that identify no specific tasks. For example, the list does not say what the Beneficiary 
would do to "[c ]ultivate a culture of focused hard work and openness." The last two items in the 
second list refer to skills rather than tasks. 
One item in the first list states that the Beneficiary will "[d]evelop ... budgets," while an item in the 
second list states that he will "[d]evelop annual and long-tenn budgets." The Petitioner does not 
explain the difference between these two apparently identical activities, or explain why the items are 
in separate lists. 
Training and supervising personnel is not an executive-level responsibility unless the employees 
supervised are, themselves, managers or executives. The listed items also refer to a "Senior 
Management Team" and to "departments," but the record does not establish that the Petitioner has 
such organizational components. 
In a request for evidence (RFE), the Director asked for more information about the Beneficiary's 
duties. In response, the Petitioner submitted a two-page list of items, divided into seven sections: 
• Planning; 
• Management; 
• Financial management; 
• Oversee the HR management by Carefully reviewing and guiding the General 
Manager / Sales Manager; 
• Marketing and PR [public relations]; 
• General Administrative; and 
• Programmatic Effectiveness. 
Within those sections, the Petitioner listed a number of items, some more specific than others. Many 
of these items refer to activities not supported by the record. For example, there are references to 
"technology implementation," "[e ]mployee development and training," and "media/PR events," but 
the record does not describe these activities in any detail or show that they take place. The Petitioner 
stated that the Beneficiary "[b]uilt a corporate network of the industries executives" (sic), but provides 
no further information or evidence about the "corporate network." 
An accompanying organizational chart, to be discussed below in more detail, does not indicate that 
the Petitioner has a "General Manager / Sales Manager" or any dedicated "Marketing and PR" staff, 
although those terms both appear in the revised job description. Unresolved material inconsistencies 
may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). These 
discrepancies add gravity to the observation that, while the Petitioner has listed the Beneficiary's 
claimed duties, the record contains little evidence that the Beneficiary has performed those duties. 
The record does not establish that the Petitioner's organizational structure is sufficiently complex to 
wanant an executive position for the Beneficiary. An executive directs the management of the 
organization, major component, or essential function of a given organization by controlling the work 
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of managerial or lower-level executive employees. This control could either take the form of direct 
supervision of those managers or executives or could be more indirect under some circumstances. See 
generally 2 USCIS Policy Manual L.6(D),https://www.uscis.gov/policy-manual. See also BlueStar 
Cabinets, Inc. v. Jaddou, No. 21-10116, 2022 WL 4364734, at *7 (5th Cir. Sept. 21, 2022) (holding 
that "'[d]irect[ing] the management of the organization' necessarily includes directing managers of 
the organization.") The Petitioner has not shown that the company has lower-level managers under 
the Beneficiary's authority. 
On the petition form, the Petitioner claimed five employees in the United States. In an accompanying 
letter, the Petitioner claimed "15 direct and outsourced employees," but did not list their titles or duties 
or provide evidence that the company employed them or otherwise engaged their services. In the RFE, 
the Director asked for more infmmation about the Beneficiary's duties and subordinate staff 
The RFE response includes an organizational chart indicates that the Beneficiary's parents serve as 
president and vice president, with a "Board Committee" on the same level as the Beneficiary. Below 
the Beneficiary, the chart shows two "Store Sellers," two "Wholesale Sales" workers, and three "Sales 
Representatives." The chart does not distinguish between contractors and employees, but it names 
fewer than 15 individuals. 
The record does not support the Petitioner's staffing claims. Tax and payroll documents show that, in 
2019 and 2020, the Petitioner paid wages to only one employee, who earned $1,544 in 2019 and $5,310 
in 2020. That individual's name does not appear on the organizational chart or payroll records from 
2022, and the record does not reveal the individual's title. We acknowledge the Petitioner's claim to 
rely on "outsourced employees," but this assertion is not sufficient to meet the Petitioner's burden of 
proof. The Petitioner did not explain the roles of the outsourced individuals or submit documentary 
evidence such as contracts to show that it actually engages their services. 
The Petitioner's tax return for 2021, the year the Petitioner filed the petition, shows $18,522 in salaries 
paid for the year, but the record only partially accounts for that amount, showing that one employee 
received $3,624. A payroll ledger for the first five months of 2022, after the filing date, shows the 
names of the two "Store Sellers," who work, on average, about 30 hours per week, and an outside 
company that provides unspecified services to the Petitioner. The contracted company named on the 
payroll records received, on average, less than $100 per week. Other than the two "Store Sellers," the 
record does not conoborate the employment of the subordinates claimed on the organizational chart, 
Quarterly tax reports from early 2022 confirm that the Petitioner had two employees at the time. The 
record does not show that the Beneficiary has any full-time subordinates. 1 
The company's minimal staffing does not conoborate the organizational chart or show that the 
Beneficiary is consistently able to delegate non-executive tasks to subordinates. 
For the above reasons, the record demonstrates that the Beneficiary has authority over the petitioning 
U.S. company, but does not show that this authority rises to the level of an executive capacity in which 
the Beneficiaty primarily directs the management of the organization or a major component or 
1 The tax and payroll documents in the record indicate that the Petitioner did not start paying the Beneficiary until after the 
Director issued the RFE in July 2022, although the Beneficiary has purportedly been working for the Petitioner as an 
executive in L-lA nonimmigrant status since November 2019. 
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function thereof; establishes the goals and policies of the organization, component, or function; and 
exercises wide latitude in discretionary decision-making. The Petitioner has not established that the 
Beneficiary will be employed in an executive capacity in the United States. 
The above conclusion is sufficient to determine the outcome of the appeal. Therefore, we reserve the 
remaining issue regarding the Beneficiary's prior employment abroad. 2 
III. CONCLUSION 
The Petitioner has established a qualifying relationship with the Beneficiary's former employer, but 
has not shown that it seeks to employ the Beneficiary in an executive capacity in the United States. 
We will therefore dismiss the appeal. 
ORDER: The appeal is dismissed. 
2 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-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). 
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