dismissed EB-1C Case: Freight Forwarding

U.S. Citizenship 
and Immigration 
Services 
In Re: 8844992 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 06, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a freight forwarding company, seeks to pennanently employ the Beneficiary as its 
"operations manager" 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 )(1 )(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 Nebraska Service Center denied the petition concluding that the Petitioner did not 
establish , as required, that the proposed employment would be in a managerial or executive capacity .1 
The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. We find that the Petitioner has not met that burden. 
Therefore, 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 prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
1 Although the Director briefly discussed the Beneficiary 's foreign employment , this issue was included as a basis for 
denial. As such, this decision we will not include a discussion of the Beneficiary 's employment with the foreign entity. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The primary issue to be addressed is whether the Petitioner provided sufficient evidence establishing 
that the Beneficiary's position with the U.S. entity would be in a managerial capacity. 2 
"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. The term "function manager" applies generally when a beneficiary does not 
primarily supervise or control the work of a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See section 10l(a)(44)(A)(ii) of the Act. 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Sections 101(A)(44)(A) and (B) of the 
Act. The Petitioner must also prove that the Beneficiary will be primarily engaged in managerial 
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 light of the above, we look to the description of the job duties, which must clearly describe the 
duties to be performed by the Beneficiary and indicate whether such duties are in an executive 
capacity. See 8 C.F.R. § 204.5(j)(5). Beyond the required description of the job duties, we examine 
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 a business. 
Accordingly, we will discuss the Beneficiary's job duties along with evidence of the nature of the 
Petitioner's business and its staffing levels. 
A. Factual Background 
In the initial supporting statement, the Petitioner explained that its business is centered around 
primarily serving the Filipino community in the Hawaiian Islands by sending "care boxes" to the 
Philippines. The Petitioner stated that it uses independent contractors to collect and consolidate the 
boxes into large containers at its warehouse and then ships those containers to its Filipino affiliate, 
which uses its facilities and delivery vehicles to offload and deliver the boxes to their intended 
designations. The Petitioner also stated that the Beneficiary will be compensated $21,600 annually to 
fill a managerial role that will involve "running the business" and ensuring "smooth daily operations." 
2 The Petitioner does not claim that the Beneficiary would be employed in an executive capacity. 
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In a request for evidence (RFE), the Director notified the Petitioner of various evidentiary deficiencies 
in the record and asked the Petitioner to provide a statement clearly describing the Beneficiary's 
specific daily job duties and the percentage oftime she would spend on each duty. The Petitioner was 
also asked to provide an organizational chart depicting its staffing structure, including employees and 
contractors that are subject to the Beneficiary's supervision, and to provide its payroll summary, 
employee Fmm W-2 wage and tax statements, Fmm 1099s showing miscellaneous income, and 
quarterly federal tax returns. 
In response, the Petitioner stated that the Beneficiary would report directly to the general manager and 
provided an organizational chart showing the general manager at the top of the hierarchy, followed by 
the Beneficiary who is depicted as overseeing a call center agent, a "manifest encoder," and "agents" 
located throughout six islands in Hawaii. The chart was accompanied by some of the requested wage 
evidence, including quarterly federal tax returns, the Beneficiary's W-2s for 2017 and 2018, and the 
Beneficiary's 2019 earnings statements showing earnings from January through June 15, 2019. The 
Petitioner did not provide any Form 1099s or evidence showing that it paid wages to anyone other 
than the Beneficiary. 
The Petitioner also provided the following list of the Beneficiary's assigned duties and responsibilities: 
• Oversight of operations of the business; 
• Preparation of customer job orders; 
• Addressing complaints regarding damaged and missing items and shipment delays; 
• Coordinating with agents regarding "shipments and all other concerns," such as supplies, 
complaints, and clarifications; 
• Ensuring "proper [i]ngating [sic]" and warehousing of boxes; 
• Verification of invoices to ensure they contain accurate information; 
• Coordinating delivery and return of containers; 
• Supervision of container loading; 
• Preparation of documents to be encoded by an outsourced third party; and 
• Making payment arrangements for bills and accounts payable. 
In the denial, the Director noted that the Petitioner claimed one employee at the time of filing and 
found that an organizational chart depicting numerous positions aside from the Beneficiary was 
inconsistent with that original claim. Ultimately, the Director found that the Beneficiary does not 
primarily perform job duties that are managerial in nature. 
B. Analysis 
On appeal, the Petitioner asks us to consider "the peculiarities" and reasonable needs of its 
organization, highlighting its business practice of outsourcing contractors rather than hiring employees 
to meet its various operational demands. The Petitioner compares its outsourced "agents" to a sales 
department, claiming that the Beneficiary directly manages this "essential area of operations" even 
though it does not directly employ the individuals who perform the sales function. 
Although the Petitioner correctly observes that we must take into account the reasonable needs of the 
organization per statutory requirement, we have consistently interpreted section 101 (a)( 44 )( C) of the 
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Act as prohibiting discrimination against small or medium-size businesses yet still requiring a 
petitioner to establish that the beneficiary's position "primarily" consists of managerial or executive 
duties and that it has sufficient personnel to relieve a beneficiary from performing operational and 
administrative tasks. A petitioner's reasonable needs will not supersede the statutory requirement that 
a beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. 
Brazil Quality Stones v. Chertoff, 531 F.3d 1063, 1070 n.10 (9th Cir. 2008). 
The evidence offered in the matter at hand indicates that the Beneficiary's job duties are primarily 
operational and administrative, rather than managerial in nature. Although the Petitioner claims that 
it hires sales representatives on a commission basis and outsources the logistics and customer service 
tasks to third party service providers, it neglected to provide evidence showing that it consistently paid 
for these services even though the RFE expressly requested evidence of any contractual labor. The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369,376 (AAO 2010). 
Moreover, the Petitioner did not establish that its use of contractors to perform sales, shipping logistics, 
and customer service duties adequately relieves the Beneficiary from having to carry out the various 
administrative and operational tasks that were listed in her job description, such as preparing job 
orders, addressing customer complaints regarding missing and damaged items, coordinating shipments 
and shipping logistics, and preparing documents for encoding and processing bill payments and 
account payables. An employee who "primarily" performs the tasks necessary to produce a product 
or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See, e.g., sections 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform 
the enumerated managerial or executive duties); Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 
604 (Comm'r 1988). Because the Petitioner did not assign a percentage of time to each of the 
Beneficiary's listed duties as requested in the RFE, we are unable to determine the precise portion of 
time the Beneficiary would spend performing the non-managerial job duties listed above. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish eligibility 
for classification as an employee in a managerial or executive capacity within the meaning of section 
101 (a)( 44) of the Act. By statute, eligibility for this classification requires that the duties of a position 
be "primarily" executive or managerial in nature. Sections 10l(A)(44)(A) and (B) of the Act. While 
the Beneficiaiy may exercise discretion over the Petitioner's day-to-day operations and possess the 
requisite level of authority with respect to discretionaiy decision-making, the Petitioner has not 
established that the Beneficiary's primary focus would be to supervise and control the work of other 
supervisory, professional, or managerial employees or to manage an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act. 
In light of the deficiencies described above, we cannot conclude that the Beneficiary would be 
employed in a managerial capacity. 
ORDER: The appeal is dismissed. 
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