dismissed EB-1C Case: Freight Transportation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 14, 2024 In Re: 29565616 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner is a freight transportation business that seeks to permanently employ the Beneficiary as 
its "chief executive" 1 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 record did not 
establish that the Beneficiary would be employed 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 novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 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 petition for a multinational manager or executive 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 
1 In Part 6 of the Form 1-140 the Petitioner listed the Beneficiary 's job title as "Trans./Logistics Manager" and listed the 
nontechnical job description as "Multinational Executive Manager Directing Manager." On appeal, the Petitioner does 
not further clarify the Beneficiary 's job title, but rather states that the Beneficiary "directs and manages" the Petitioner's 
operations and will be employed in an executive capacity. Because the Petitioner does not claim that the Beneficiary's 
proposed employment will be in a managerial capacity, we will limit our analysis to whether the proposed employment 
meets the criteria of executive capacity. 
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(i)(3). 
In addition, any petition filed for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective U.S. employer has the ability to 
pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is 
established and continuing until the beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). 
II. ANALYSIS 
The primary issue to be addressed is whether the Petitioner provided sufficient evidence to establish 
that it would employ the Beneficiary in an executive capacity, as claimed. 
As a preliminary matter, we will address the Petitioner's claim that the evidentiary deficiencies at the 
time of filing and in response to a request for evidence (RFE) were the result of the Petitioner receiving 
"ineffective legal assistance" from an unlicensed individual who is claimed to have "inadequately 
counseled and misled" the Petitioner. In support of its assertions, the Petitioner provides a California 
charging document which shows that the unlicensed individual has been charged with four felony 
counts of grand theft under California Penal Code section 487(a) and one misdemeanor count of 
unauthorized practice of law under the California Business and Professions Code section 6126(a). 
However, the Petitioner did not provide documentation showing that the unlicensed practitioner was 
convicted of any of the charged offenses. Additionally, nothing shows that the Petitioner was 
specifically identified as a victim in any of the criminal misconduct with which the individual was 
charged. 2 3 
In addition, we note that on appeal the Petitioner asserts that evidence which was previously submitted 
in response to the RFE demonstrates that the Beneficiary "has always and continues to be employed 
in an executive capacity." In other words, the Petitioner makes two seemingly competing and 
inconsistent claims. On the one hand, the Petitioner asserts that the previously submitted evidence -
evidence that the unlicensed practitioner helped present in support of this petition - was sufficient to 
demonstrate the Beneficiary's eligibility; on the other hand, however, the Petitioner claims that the 
unlicensed practitioner caused this petition to be denied based on having "inadequately counseled and 
misled" the Petitioner. This inconsistency undermines the Petitioner's claim that the petition was 
denied as a result of "ineffective legal assistance," and it also leads us to question the reliability of the 
previously submitted statements and evidence, which were gathered and presented with the assistance 
of an unlicensed practitioner. 
2 There is no remedy available for a petitioner who assumes the risk of authorizing an unlicensed attorney or unaccredited 
representative to undertake representations on its behalf See 8 C.F.R. § 292.1; see also Hernandez v. Mukasey, 524 F.3d 
1014 (9th Cir. 2008) ("nonattomey immigration consultants simply lack the expertise and legal and professional duties to 
their clients that are the necessary preconditions for ineffective assistance of counsel claims" 
3 See Matter ofLozada, 19 l&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988) (requiring an appellant to meet 
certain criteria when filing an appeal based on ineffective assistance of counsel, where counsel is involved). 
2 
Furthermore, while we have considered the new assertions and evidence submitted on appeal, for the 
reasons discussed below, we find that the Petitioner has not established that the Beneficiary's proposed 
position meets the criteria 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 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 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. 
As indicated above, the previously issued RFE highlighted the importance of a detailed job description 
and notified the Petitioner that its previously submitted description of the Beneficiary's proposed 
position was insufficient because it lacked details specifying the Beneficiary's job duties and the 
amount of time he would dedicate to each duty. The RFE also asked the Petitioner to provide an 
organizational chart depicting its staffing and to explain who performs its operational tasks. 
In the denial, the Director again raised concerns regarding the Beneficiary's job duties and whether 
the Petitioner is sufficiently staffed to relieve the Beneficiary from having to perform primarily 
operational tasks. Ultimately, the Director concluded that the Petitioner did not demonstrate that the 
Beneficiary would primarily perform the high-level duties of a manager or executive and would not 
be employed in a managerial or executive capacity. 
On appeal, the Petitioner cites "ineffective legal assistance" as the cause for any deficiencies in the 
previously submitted evidence. While the Petitioner is now represented by new counsel, who has 
demonstrated that he is a licensed attorney, the evidence submitted on appeal does not adequately 
address the previously noted deficiencies concerning the Beneficiary's job duties and the Petitioner's 
staffing. Both of these issues are critical for the purpose of explaining how the Beneficiary would 
allocate his time and who would relieve the Beneficiary from having to allocate his time to primarily 
non-executive job duties. 
In the appeal brief, the Petitioner states that the Beneficiary "oversees the operation and logistical 
framework" which includes "a fleet of over 15 heavy tractor trailers and their respective drivers." The 
Petitioner contends that such oversight shows that the Beneficiary does not perform non-qualifying 
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job duties and demonstrates the executive nature of the Beneficiary's position as one who sets goal 
and policies and has the discretionary authority to make decisions. We disagree that the Beneficiary's 
oversight of contracted truck drivers, as described, demonstrates that his position is in an executive 
capacity. 
The Beneficiary's decision to use the nonimmigrant visa process to contract truck drivers would, and 
likely did, entail some oversight authority and discretionary decision-making; also, retaining the 
contracted workers would ultimately result in relieving the Beneficiary from having to provide truck 
driving services. However, the Petitioner has not explained how the Beneficiary's decision-making 
demonstrates his goal- and policy-making role, as it is unclear what goals and policies were created in 
the process of making that decision; nor has the Petitioner established that relieving the Beneficiary 
from having to provide truck driving services would thereby ensure that the Beneficiary will allocate 
his time primarily to tasks of an executive nature. A detailed job description is critical in making this 
determination, as the actual duties themselves reveal the true nature of the employment. 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). 
Although both the RFE and the denial stressed the importance of a detailed job description that 
includes the Beneficiary's specific activities and the percentage of time to be allocated to each activity, 
the Petitioner has not provided the requested evidence. Instead, the Petitioner repeatedly cites 
"ineffective legal assistance" as the reason for not having a detailed job description in its RFE 
response, leaving us to question why, after having been informed of the need for a detailed job duty 
breakdown in the decision as well, the Petitioner has not addressed this known evidentiary deficiency 
on appeal. 
The Petitioner also continues to make general statements about the Beneficiary's executive role and 
top placement within the organizational hierarchy. While these factors are relevant to the issue of 
whether the Beneficiary would be employed in an executive capacity, they do not establish the nature 
of the specific duties he would perform within the context of a freight transportation business. 
Likewise, the Petitioner's claim that the Beneficiary will be "limited to overseeing business strategy, 
[sic] managing his Operational Manager" does not impart a meaningful understanding of the actual 
tasks the Beneficiary would perform in the daily course of the Petitioner's business. While the 
Petitioner urges us to consider additional evidence that has been submitted on appeal, including a 
supplemental statement from the Beneficiary, the new evidence does not satisfy the regulatory 
requirement that the Petitioner "clearly describe the duties to be performed" by the Beneficiary in his 
proposed position. 8 C.F.R. § 204.5(j)(5). 
On appeal, the Petitioner also provides an organizational chart and once again cites "ineffective legal 
assistance" as the reason for not having adequately responded to the RFE with the requested evidence. 
The newly submitted chart depicts the Beneficiary at the top of the organizational hierarchy, followed 
by four subordinate positions: 1) an operations manager; 2) a management position; 3) a brokerage 
services position; and 4) accounting. Only the operations manager is depicted with subordinate 
personnel, which include maintenance and a tracking and dispatch employee, the latter of whom in 
tum oversees the driver staff 
We note, however, that the Petitioner claimed only one employee on the petition form, which was 
filed in October 2020. And the only staffing evidence the Petitioner provided at the time of filing 
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consists of "Driver Pay Out" and "Contractor Pay Out" slips dated in 2020, thus indicating that the 
Petitioner contracted truckers, thereby enabling it to carry out its contractual obligations. However, 
the Petitioner did not provide evidence showing that at the time of filing it had employees to fill the 
remaining positions listed in the organizational chart. 
While the Petitioner's submissions on appeal include financial journals showing payroll and contractor 
expenses in 2022 and 2023, these documents do not address the issue of the Petitioner's staffing 
composition as of October 2020, when this petition was filed. See 8 C.F.R. § 103.2(b)(l) (requiring 
the affected party to establish eligibility for the requested benefit at the time of filing the benefit 
request). Without this evidence, we cannot determine whether or to what extent the Petitioner had 
employees available to relieve the Beneficiary from involvement in administrative and operational 
tasks at the time of filing to show that he performed in a primarily executive capacity. The Petitioner's 
unsupported references to the Beneficiary's oversight of employees who are not otherwise 
documented in the record undermines the credibility of the submitted position description. And while 
the Petitioner claims that it partly relies on staff in Mexico to support its U.S. operations, it has not 
offered evidence documenting an arrangement with the foreign entity to use its staff to provide services 
in support of the U.S. operation. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) 
(requiring that a petitioner's assertions must be supported with relevant, probative, and credible 
evidence). 
In sum, the Petitioner has not provided an adequate job description or evidence showing that at the 
time of filing, it was adequately staffed and able to support the Beneficiary in a position where he 
would primarily perform duties of an executive nature. 
III. CONCLUSION 
For the foregoing reasons, the Petitioner has not established that it will employ 
the Beneficiary in an 
executive capacity in the United States. Therefore, the petition cannot be approved. 
ORDER: The appeal is dismissed. 
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