dismissed EB-1C Case: Furniture Wholesale

U.S. Citizenship 
and Immigration 
Services 
In Re: 7402015 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 7, 2020 
PETITION: Form I-140, Petition for Multinational Managers or Executives 
The Petitioner , a furniture importer and wholesaler, seeks to permanently employ the Beneficiary as 
its "Executive Director /President" 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 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 Beneficiary was employed abroad and would be employed in the United 
States in a managerial or executive capacity. The matter is now before us on appeal. 
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 find that the Petitioner has not 
established that the Beneficiary would be employed in a managerial or executive capacity . Therefore, 
we will dismiss the appeal. Because of the dispositive effect of this finding, we will reserve the 
remammg issue. 
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 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. § 204.50)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAP A CITY 
The primary issue to be addressed in this decision is whether the Petitioner provided sufficient 
evidence demonstrating that the Beneficiary would be employed in an executive capacity. 1 
"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. 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also 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); 
Champion World, 940 F.2d 1533. 
The description of the job duties 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(i)(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 evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Job Duties 
First, we will discuss the duties to be performed by the Beneficiary. We note that 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). 
In support of the petition, the Petitioner provided a job duty breakdown which listed ten broadly stated 
job duties highlighting the Beneficiary's supervision and oversight authority over the Petitioner's 
operation. 
After reviewing the Petitioner's submissions, the Director issued a request for evidence (RFE) 
informing the Petitioner that the initial submissions were insufficient because they lacked an adequate 
description of the Beneficiary's job duties and did not establish that the Beneficiary would be 
employed in an executive capacity. The Director instructed the Petitioner to provide, in part, a 
1 The Petitioner does not claim that the Beneficiary would be employed in a managerial capacity; therefore, we will not 
address this issue in the present decision. 
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statement listing the Beneficiary's specific daily tasks and the percentage of time he would allocate to 
each action. The Director also asked the Petitioner to identify the specific productive and 
administrative services required in the course of its operation and provide a list of the employees who 
perform those tasks along with payroll evidence, which would allow us to gauge the Petitioner's 
staffing at the time of filing. 
In response, the Petitioner pointed to previously submitted exists that contained some of the requested 
evidence, including a federal quarterly tax return for the first quarter in 2018, 2 an organizational chart 
showing the Petitioner's staffing levels, a list of the Petitioner's employees and their respective job 
titles, job duties, and educational levels. Although the Petitioner provided a new statement containing 
the Beneficiary's job description, the job duty breakdown was identical to the original job description 
and included the same percentage breakdown, which allocates 10% of the Beneficiary's time to each 
of ten broadly stated job duties that stress the Beneficiary's discretionary authority over the 
Petitioner's "functional operations." The Petitioner did not, however, describe the "functional 
operations" or elaborate as to what they specifically entail. 
Further, the description repeatedly refers to a "management team," claiming that this "team" would 
verify "required papers," transfer products, achieve company goals, plan and enforce rules and 
regulations, exercise "trade safety," and stay within the budget guidelines when using company 
resources. However, the Petitioner did not identify the "required papers," specify the rules and 
regulations the "team" will plan and enforce, or elaborate on the Beneficiary's actual job duties in 
relation to these vaguely stated job duties. Although the Petitioner stated that the Beneficiary would 
oversee human resources, it did not explain how preparing an employee manual, which was associated 
with the Beneficiary's human resources responsibility, demonstrates that the Beneficiary's role was 
limited to oversight as opposed to actively carrying out an operational task with the human resource 
function. Moreover, the Petitioner did not identify any other job duties within that function or state 
who, if not the Beneficiary, would perform those job duties. Lastly, the Petitioner claimed that the 
Beneficiary would oversee a "marketing team," which is comprised of a "trade show team" and sales 
representatives, and an "accounting team," which is tasked with the preparation of financial 
documents. Again, however, it did not list the Beneficiary's specific daily activity to explain precisely 
how he would meet his oversight responsibilities with respect to the marketing and accounting 
functions. 
In addition to the job duty breakdown, the Petitioner sought to demonstrate that the Beneficiary's job 
duties satisfy the four components of the definition of "executive capacity." The Petitioner stated that 
the Beneficiary will direct and manage the company "by establishing performance standards of the 
management team" and tracking their monthly and quarterly progress in meeting the performance 
goals he sets and determining when an employee should be terminated or placed on an "action plan" 
to encourage improved performance. Although the Petitioner claimed that "establishing performance 
standards" sometimes includes instructing the "management to produce new items for the season," it 
is unclear what "new items" could be produced by individuals whom the Petitioner has tasked with 
managing an operation that imports and sells furniture. The Petitioner also stated that the Beneficiary 
2 The Petitioner referenced "Quarterly Wage Rep01is for 2018 - four quarters before the filing" and pointed to Ex. 41 in 
the response statement. However, as indicated above, Ex. 41 is comprised of a single quarterly tax return and does not 
include wage reports. 
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would "use organization structure to control work flow and performance," but it did not cite to specific 
actions the Beneficiary would undertake in meeting these broadly stated objectives. 
Next, the Petitioner addressed the second component - establishing goals and policies - stating that 
the Beneficiary will implement "more effective and efficient goal-setting processes by deploying an 
automated performance management system," which was described as technology that would assist 
managers in setting measurable goals based on company needs. The Petitioner did not, however, 
specify the actual daily tasks the Beneficiary would perform in the course of deploying this 
management system. Likewise, the Petitioner was equally vague in its discussion of the Beneficiary's 
role with respect to setting company policies, stating only that the Beneficiary will work with "top 
managers" in setting their goals and that he would set policies with the objective of maximizing 
employee productivity and ensuring that employees meet their goals. Lastly, the Petitioner discussed 
the Beneficiary's role as the company's "top executive," stating that the Beneficiary has ultimate 
discretionary authority to control the company by entering into contracts and opening new offices. 
The Director denied the petition, finding that the Petitioner did not adequately describe the proposed 
position or identify the Beneficiary's actual job duties. On appeal, the Petitioner contends that the 
Director erred by "cutting out portions of the job descriptions" and incorrectly finding the position 
description to be vague despite the submission of "clear job descriptions describing [ the Beneficiary]' s 
duties." We disagree and find that neither the original job description nor the job description offered 
on appeal adequately describes the Beneficiary's job duties and establishes that his time would be 
primarily allocated to tasks of an executive nature. 
As a preliminary matter, we find that the Petitioner's reference to an approval of a nonimmigrant L­
lA petition that had been previously filed on behalf of the Beneficiary is not persuasive. The 
Director's decision does not indicate that the prior approval was reviewed. As such, we cannot 
determine that the approval was based on the same evidence as contained in the current record. If so, 
the approval would constitute an error on the part of the Director. We are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of a prior 
approval that may have been erroneous. Matter of Church Scientology Int'!, 19 I&N Dec. 593, 597 
(Comm'r 1988). It would be unreasonable for USCIS or any agency to treat acknowledged errors as 
binding precedent. Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). We farther note that each petition filing is a separate proceeding with 
a separate record and a separate burden of proof. In making a determination of statutory eligibility, 
USCIS is limited to the information contained in that individual record of proceeding. 8 C.F.R. 
§ 103.2(b)(l6)(ii). 
Furthermore, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center Director had approved the nonimmigrant 
petition on behalf of the Beneficiary, we would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
Although the Petitioner has consistently stressed the Beneficiary's leadership role and, on appeal, 
offers a job description stating that the Beneficiary makes "all executive decisions" and is in charge 
ofrecruiting a "strong leadership base," the new job description is also deficient and does not convey 
a meaningful understanding of the Beneficiary's actual daily tasks. Rather, the new job duty 
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breakdown groups together multiple broadly stated job duties and assigns a percentage of time and 
hourly increments to each of four groups instead of assigning these time constraints to individual job 
duties. For instance, the Petitioner states that 30% of the Beneficiary's time will be allocated to 
developing and implementing policies and "international management systems," overseeing inventory 
and logistics and ensuring adherence to import and export regulations, and developing and 
implementing corporate policies and procedures. Not only does the Petitioner neglect to specify the 
portion of time the Beneficiary would allocate to each individual job duty, but this string of broad job 
responsibilities does not identify specific policies the Beneficiary has or would create or establish the 
difference between developing and implementing policies versus developing and driving policies. The 
Petitioner also does not list the actual daily tasks involved in overseeing inventory and logistics or 
establish that those job duties are executive in nature, nor does the Petitioner explain the Beneficiary's 
specific role in such oversight in relation to other lower-level employees who would presumably carry 
out inventory and logistical tasks. 
The Petitioner claims that another 30% of the Beneficiary's time will be spent managing "complex 
and sensitive matters" concerning products and revenue generation and overseeing an accounting 
team, growth in "distribution sales and creative production as it related to licensed content," and the 
marketing team and trade shows. However, the Petitioner does not clarify whether the Beneficiary 
himself would attend the trade shows and if so, what his role would be during such attendance. Nor 
does the Petitioner point to specific "complex and sensitive matters" or explain how the Beneficiary 
will manage such matters. The Petitioner also does not identify the "licensed content" it claims to use 
in the course of its furniture import and wholesale operation or establish a role for such content within 
the scope of its operation. 
In effect, the deficiencies described above preclude meaningful insight as to the actual activities that 
would comprise 60% of the Beneficiary's time. Specifics are clearly an important indication of 
whether a beneficiary's duties are primarily executive or managerial in nature. 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). Rather than delineating the 
Beneficiary's specific tasks, the Petitioner instead lists vague job responsibilities that emphasize the 
Beneficiary's discretionary authority over the organization and its staffing. However, the fact that the 
Beneficiary will manage or direct the business does not necessarily establish eligibility for 
classification in an executive capacity within the meaning of section 10l(a)(44)(B) of the Act. By 
statute, eligibility for this classification requires that the duties of a position be "primarily" executive 
in nature. Sections 101(A)(44)(B) of the Act. 
While the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and possess 
the requisite level of authority with respect to discretionary decision-making, these elements alone are 
insufficient to establish that the Beneficiary's actual duties would be primarily executive in nature. 
As the Petitioner does not adequately describe the Beneficiary's specific daily tasks within the scope 
of a furniture wholesale operation, we cannot conclude that the job duties the Beneficiary would 
allocate the primary portion of his time would be executive in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
5 
capacity, we 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 petition, the Petitioner claimed eight employees and provided a block organizational chart 
showing the Beneficiary at the top of the hierarchy, followed by the Beneficiary's subordinate - a 
manager - with support staff comprised of a bookkeeper, three sales support staff members, and a 
warehouse manager. The bottom tier of the chart shows a warehouse worker as the warehouse 
manager's subordinate. In a separate document, the Petitioner listed each employee's name, 
educational level, and position title and identified the manager, bookkeeper, and one internet 
marketing support/sales person as full-time employees, and the warehouse manager, a warehouse 
worker, the other internet marketing support/sales person, and a sales associate as part-time 
employees. The Petitioner did not clarify precisely how many hours the part-time employees work or 
establish that one part-time warehouse worker and a part-time warehouse manager would adequately 
address the Petitioner's logistics needs and relieve the Beneficiary from having to directly participate 
in and oversee the warehousing activities. 
Further, although the Petitioner claimed that it employed a full-time bookkeeper, the first two 2018 
state quarterly wage reports indicate that the Petitioner paid its bookkeeper a quarterly income of 
$3000, which is not commensurate with the compensation of a full-time employee in Tennessee, where 
earnings should total at least $3480 for a full-time employee earning minimum wage of $7.25 per 
hour. 3 The Petitioner must support its assertions with relevant, probative, and credible evidence. See 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Here, the Petitioner has not provided 
evidence showing that it employed a full-time bookkeeper at the time of filing and it is therefore 
unclear whether the Petitioner's bookkeeping needs were adequately met without the Beneficiary's 
direct participation in the bookkeeping function. Likewise, although the Petitioner claimed that one 
of its three sales people works on a full-time basis, the second 2018 quarterly wage report shows that 
all three sales representatives received salaries that were commensurate with those of part-time 
employees. 4 The Petitioner must resolve this inconsistency in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Further, the staff job descriptions do not indicate that the Petitioner had staff to carry out necessary 
operational functions, such as answering phones, issuing invoices, collecting and making payments, 
and the like. Likewise, it is unclear how the Petitioner's manager would help to support the 
Beneficiary's position and relieve him from having to allocate his time primarily to non-executive job 
duties, as this subordinate's job description states only that he would"[ o ]versee various departments" 
and "employee relations" and "[a]dminister human resources duties." We are unable to glean the 
manager's actual daily tasks based on these vaguely stated job responsibilities. 
In whole, we find that the Petitioner relied on misleading references to a marketing and an accounting 
"team," neither of which was documented in the Petitioner's organizational chart, and a "management 
team," which appears to be comprised of one full-time and one part-time employee, whose respective 
job duties are largely undetermined as a result of the deficient employee job descriptions. 
3 See https://www.minimum-wage.org/tennessee (last accessed on Febrnary 3, 2020). 
4 The Petitioner's first 2018 quarterly wage report indicates that it had two sales employees - also showing part-time 
salaries - in the quarter that preceded the filing of this petition. 
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Accordingly, we disagree with the claim that the Petitioner provided a "detail [sic] summary" of 
employee job duties and find that the employee job descriptions lacked critical information about 
actual tasks to be performed by a primarily part-time support staff. In light of these deficiencies we 
find that the Petitioner did not provide sufficient evidence establishing that the Beneficiary would be 
relieved from performing primarily non-executive job duties. 
ORDER: The appeal is dismissed. 
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