dismissed EB-1C Case: Furniture Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 10, 2023 In Re: 27190893 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a furniture retail and wholesale business , seeks to permanently employ the Beneficiary 
as its CEO 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. 
§ 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 a managerial or executive capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish it would employ the Beneficiary in an executive capacity. The decision reflects that the 
Director considered the Beneficiary's stated job duties, the nature and scope of the Petitioner 's 
business, and evidence related to its organizational structure and staffing levels in reaching this 
conclusion. 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 ofChri sto 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
On appeal, the Petitioner asserts that the Director failed to apply the preponderance of the evidence 
standard and reached a decision that "is contrary to law regulation , and prior policy." In this regard, 
the Petitioner asserts the Director "incorrectly concluded that the Beneficiary's subordinate did not 
serve in a managerial position solely based on the wage reflected on his W-2." The Petitioner indicated 
on the Form I-290B, Notice of Appeal or Motion, that it would submit a brief and additional evidence 
to our office within 30 days of filing the appeal on February 28, 2023 . The record reflects that the 
Petitioner submitted no additional materials to date, and we now consider the record complete. 
We adopt and affum the Director's decision. See Matter of Burbano, 20 I&N Dec. 872, 874 
(BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of 
adopting and affirming the decision below has been "universally accepted by every other circuit that 
has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit 
courts in holding that appellate adjudicators may adopt and affirm the decision below as long as they 
give "individualized consideration" to the case). The Director thoroughly reviewed and analyzed the 
Petitioner's claim that the Beneficiary would be employed in an executive capacity as defined at 
section 10l(a)(44)(B) of the Act, 8 U.S.C. § l 10l(a)(44)(B). The Director evaluated the Beneficiary's 
position descriptions, evidence of the nature and scope of the Petitioner's business, and documentation 
relating to the company's staffing and organizational structure, noting that there were unresolved 
discrepancies in the record relating to some of the subordinate positions. The Director acknowledged 
that the responsibilities attributed to the Beneficiary generally fall within the statutory definition of 
executive capacity but concluded that the Petitioner did show that it had sufficient staff to relieve him 
from involvement in the day-to-day operational, administrative, and other non-executive tasks 
associated with operating the business. Accordingly, the Director determined that the Petitioner did 
not meet its burden to establish that the Beneficiary's actual tasks would be primarily executive in 
nature. 
The Petitioner generally challenges the denial by contending that the Director did not apply the 
preponderance of the evidence standard. However, it does not articulate with any specificity how the 
Director failed to do so. The Petitioner also asserts that the Director incorrectly determined that one 
of the Beneficiary's direct subordinates is not a managerial employee based on the wages reported on 
the employee's 2021 IRS Form W-2. While we agree that a determination regarding the nature of a 
position is not solely reliant on the employee's reported wages, we note that the Director did not deny 
the petition based on a conclusion that the Beneficiary would not be supervising subordinate 
managerial employees. 1 The Petitioner's brief statement in support of the appeal does not otherwise 
contest the Director's reasoning or conclusions. 
Upon review, we agree with the Director that the Petitioner has not established it would employ the 
Beneficiary in an executive capacity. A petitioner must establish eligibility for the requested benefit 
at the time of filing and must continue to be eligible through adjudication. 8 C.F .R. § 103 .2(b )(1 ). 
The Petitioner, which operates two retail furniture stores, provided an organizational chart at the time 
of filing in March 2021. The chart shows that the Beneficiary's direct subordinates would include two 
store managers, each responsible for one of the company's retail locations. The Petitioner indicated 
one manager supervises three departments (logistics, purchasing and sales) and six store employees in 
total, while the other store manager supervises three store employees responsible for accounting, sales, 
and logistics. When the Petitioner responded to a request for evidence (RFE) in October 2022, it 
submitted an organizational chart indicating that its I I California store had no store manager, 2 
and instead employed two department managers and a total staff of nine employees, while its second 
store employed only a store manager and an accountant. Although the Petitioner's overall employee 
count remained between 9 and 12 full- and part-time employees between the time of filing and the 
date of the RFE response, no explanation was provided for the change in organizational structure. 
Moreover, the record shows that the stores have comparable operating hours (open daily for over 50 
hours per week) and would reasonably have similar staffing needs. 
1 We note that the employee in question, the sales manager at the Petitioner' sl California store location, appears 
to have worked for only seven months in 2021, which would account for them earning significantly less than their claimed 
$30,000 annual salary. An employee list submitted in response to the RFE indicates that this individual was hired in 
November 2020, and this may have led to confusion regarding their status during 2021. 
2 The Director observed that the individual originally identified as the store manager of the Petitioner' sl Istore 
was identified as a "sales & display specialist" in the Petitioner's RFE response. 
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Given that one of the Petitioner's furniture stores was staffed by only a store manager and an 
accountant, the Director determined that the Petitioner did not show it had sufficient staff to relieve 
the Beneficiary from involvement in the day-to-day operational and administrative tasks of its retail 
business. As noted, the Petitioner has not addressed this determination on appeal or explained how 
the Director applied an incorrect standard in adjudicating the petition. We also observe that the record 
indicates that the Petitioner is engaged in online as well as retail sales and it does not claim that any 
of its staff perform duties related to its e-commerce functions. 
Further we note that the Petitioner submitted position descriptions for subordinate staff which appear 
to be inconsistent with its operations. For example, the Petitioner indicates that the Beneficiary will 
supervise store managers who oversee purchasing, sales, marketing, and customer service staff, but at 
the time it responded to the RFE, it had no store manager position at one of its locations, and no staff 
for the store manager to supervise at its second location. The position description for the sales manager 
position indicates that the role requires "a significant amount of travel" (including international travel), 
"organizing events such as fashion shows," and coordinating sales with "production," a department 
that does not exist within the organization. In addition, the Petitioner indicates that its part-time retail 
furniture sales employees perform higher-level duties such as "formulating sales policies, practices 
and procedures," and researching, analyzing, and disseminating market intelligence information. The 
lack of realistic, probative descriptions for the subordinate staff: when considered with other 
inconsistencies mentioned by the Director, undermines the Petitioner's assertion that the Beneficiary 
would be relieved from significant involvement in the day-to-day operations of its business. 
As the Director observed, the fact that the Beneficiary will direct the business and occupy the senior 
position in the petitioning company does not necessarily establish his eligibility for classification as a 
multinational executive within the meaning of section 101 (a)( 44 )(B) of the Act. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" executive in nature. While 
the Petitioner submitted a job description that mirrors the statutory definition of executive capacity 
and indicated that the Beneficiary will have the requisite level of authority with respect to discretionary 
decision-making, the job description must be viewed along with evidence of the nature and scope of 
the business and its staffing and organizational structure. Here, the evidence does not support a 
determination that the Petitioner would, more likely than not, require the Beneficiary to perform 
primarily executive functions. 3 Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
3 Although not addressed by the Director, we acknowledge that the Petitioner provided evidence that the Beneficiary is 
also the beneficiary of an L-1 A nonimmigrant petition that was approved while this petition was pending. Each petition is 
separate and independent and must be adjudicated on its own merits, under the corresponding statutory and regulatory 
provisions. Therefore, the fact that the Beneficiary was granted L-1 A status is not binding, where, as here, the facts do not 
support approval of the immigrant petition. Further, we are not bound by a decision of a service center or district director. 
See La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *3 (E.D. La. 2000), afj'd, 248 F.3d 1139 (5th 
Cir. 2001). 
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