dismissed EB-1C Case: Garment Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-G-NYC INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 16,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a garment importer and seller, seeks to permanently employ the Beneficiary as its 
president under the first preference immigrant classification for multinational executives or 
managers. See Immigration and Nationality Act (the Act) section 203(b)(I)(C), 8 U.S.C. 
§ 1153(b)(I)(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, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director erred by considering only the base salaries of the 
Beneficiary's subordinates, before commissions. 
Upon de novo 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)(I)(C) of the Act. 
The Form 1-140, Immigrant Petition tor Alien Worker, must include a statement from an authorized 
offi.cial 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. § 204.5G)(3). 
Matter of W-G-NYC Inc. 
II. DEFINITIONS 
"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 
10l(a)(44)(A) of the Act, 8 U.S.C. § IIOI(a)(44)(A). 
"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 
IOI(a)(44)(B) of the Act. 
Based on the statutory definitions of managerial and 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). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or 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. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties to be performed by the Beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 204.50)(5). 
A. Duties 
The Director's denial notice focused on staffing issues (to be discussed below) rather than the 
Beneficiary's stated duties, but we will examine the duties here as part of our de novo review of the 
record. Initially, the Petitioner provided only a capsule description of the Beneficiary's 
responsibilities. Asked for more details, the Petitioner listed the Beneficiary's "main duties," 
summarized below with the approximate percentage of time dedicated to each: 
2 
Maller of W-G-NYC Inc. 
• Setting policies and presenting the budget and profit and loss reports to the Board of 
Directors (20%) 
• "Supervising the entire operations of the company" (no time specified) 
• "(D]aily meetings with all departmental managers" (40%) 
• Contract negotiations, purchase and sales contracts, and trade shows (20%) 
• Hiring, firing, and other personnel decisions (I 0%) 
• "[M]eetings [and] conferences with the Board of Directors, shareholders, government 
officials, cooperating ventures, business partners, exchange with other high rank executives 
and general managers" (I 0%) 
At the same time the Petitioner submitted this job description, the Petitioner submitted new 
information about the company's claimed staffing. This information was almost totally different. 
from the information submitted initially; for example, it introduced a newly claimed middle 
manager. And, as we will discuss below, the Petitioner has only partially documented its claimed 
staffing. Because the job description correlated to a staffing arrangement that did not exist when the 
Petitioner filed the petition, it tells us little about the Beneficiary's duties, tasks, and responsibilities 
at the time of filing. 
Furthermore, the job description lacks detail. Specifics are clearly an important indication of 
whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. 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). The actual duties 
themselves reveal the true nature of the employment. !d. Therefore, reciting a beneficiary's vague 
job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. 
On appeal, the Petitioner states: "I am performing managerial duties and not doing front line duties. 
I have a general manager doing that for me." As noted above, the Petitioner claimed no general 
manager at the time it filed the petition. A petitioner must meet all eligibility requirements at the 
time the petition was filed. See 8 C.F.R. § 103.2(b)(l); see also Mauer of Katigbak, 14 I&N Dec. 
45, 49 (Reg'] Comm'r 1971). Any positions newly created and filled after the filing date, such as 
the general manager, cannot establish eligibility at the time of filing. 
The Petitioner did not show that the Beneficiary's duties, at the time of filing, meet the definition of 
a managerial or executive capacity. 
B. Staffing 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services 
reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
3 
.
Matter of W-G-NYC Inc. 
operational duties, the nature of the business, and any other factors that will contributy to 
understanding a beneficiary's actual duties and role in a business. 
The Petitioner's organizational chart showed the. following positions; compensation figu res are from 
IRS Forms W-2, Wage and Tax Statements: 
Title 2014 2015 
Chairman & President [the Beneficiary] $48,000 $48,000 
Wholesale Department Manager 13,920 6960 
Import Department Manager 1 
Storekeeper 10,440 7200 
'-Driver 
Online Department Manager 4640 
t= Assistant 3480 
Graphic Designer 
Retail Department Manager 9000 
L Store I Manager 1160 3600 
I_ Sales 7200 
Store 2 Manager 7200 
'-Sales 7200 
The Petitioner did not provide payroll documentation for every employee named on the 
organizat ional chart, and there are IRS Forms W-2 for two other employees, not named on the chart. 
One earned $1000 in 20 14; the other earned $800 in 2015. 
The Petitioner submitted a copy of a document it fi,led with the Departm ent of 
Consumer Affairs in 2015, indicating that the company planned to operate a four-foot-wide outdoor 
stoop line stand (sales display) to sell "Fruits, Vegetables, Soft Drinks, or Flowers." The Petitioner 
did not explain how this document related to the garment trade, which the Petitioner claimed as its 
primary business. 
In a request for evidence (RFE), the Director asked for further documentation of the company 's 
staffing, including tax and payroll records that would cover the petition's filing date. 
In response, the Petitioner submitted a new organizationa l chart and copies of20 16 IRS Forms W-2: 
Title 
Chairman & President [the Beneficiary] 
I General Manager 
f-D esigner 
Annual Salary 
$48,000 
17,280 
9600 
20 16 W-2 
$45,500 
11,520 
800 
1 The import department manager and graphic designer may be the same person; the Petition er provided incomplete 
names, and both positions show the same first name and last initial. 
4 
.
Mauer of W-G-NYC Inc. 
Art Advisor 
Warehouse Keeper 
Law Advisor 
Sales Manager 
r Sales Representative 
!=Sales Representative 
Sales Representative 
9600 
7200 
7200 
15,120 
7200 
9600 
9600 
800 
6600+ 2400 
9600+ 2400 
The extra $2400 paid to the sales representatives appeared as "nonemployee compensation " on IRS 
Forms I 099-MISC, Miscellaneous Income. 
Three additional IRS Forms W-2 showed payments in 2016 to individuals not named on the new 
organizational chart. A sales representative shown on the first chart earned $1200 , and the 
storekeeper named on the first chart earned $3600. Also , the Petitioner paid $5400 to an individual 
not named on either chart; the Petitioner 
did not provide this employee's title. 
The new organizational chart is very different from the original version, and includes several 
positions not previously listed . Of particular significance, the Petitioner newly claimed "a General 
Manager ... overseeing the daily operation of the company including overseeing each and every 
department." It appears that the Petitioner hired these employees after it filed the petition in April 
2016, which would account for the difference between the stated salaries and the lower amounts on 
the IRS Forms W-2. The newly-claimed change in organization cannot now meet eligibility 
requirements if the Petitioner did not already meet those requirements ~t the time of filing. 
Furthermore, the RFE response does not corroborate the Petitioner's initial staffing claims. 
Although the original organizational chart included 12 different names, the Petitioner did not provide 
evidence showing that it employed all those people at the time of filing. The Petitioner ' s quarterl y 
income tax return for the second quarter of 2016, which included the filing date in April, showed 
only five employees. The Petitioner submitted 2016 IRS Forms W-2 for only five of the people 
named on the original organizational chart. 
In the denial notice, the Director found that the Petitioner had not provided enough information 
about the subordinate positions, and that those positions all pay significan tly less than minimum 
wage for full-time employment in The Director concluded that the Petitioner had 
not shown that the subordinate employees adequately relieve the Beneficiary from performing non­
qualifying operational tasks . 
On appeal, the Petitioner asserts that its employees earn most of their income through commissions, 
and that the Director only considered their base salaries. The Petitioner states: 
For example, the base salary for [a] sales representative is $600 per month .... 1 
decide the sales price of each style , and say $2 per blouse, if they sell it for $20 ... I 
5 
Matter ofW-G-NYC Inc. 
only take $2, the rest is going into their own pocket . . . . The company does not need 
to know the real sales price and no need to pay for the taxes for their commissions. 
Sales commissions are considered supplemental wages, subject to withholding under conditions 
described in the regulations at 26 C.F.R. § 31.3402(g)-l (a) and its various subsections. See also IRS 
Pub. 15, Employer's Tax Guide. · 
The Petitioner has not documented its claim that its sales representatives buy the Petitioner's goods 
and theri resell them, keeping the difference. Sales invoices in the record do not identify purchasers, 
but there is no evidence, and no reason to presume, that those purchasers were the Petitioner's sales 
representatives. Furthermore, the assertion that "[t]he company does not need to know the real sales 
price" is inconsistent with a legend printed on the invoices, indicating that checks should be payable 
to the petitioning entity. 
On a tax return in the record, the Petitioner claimed $756,552 in gross receipts for the tax year 
ending October 31, 2016. This amount is more than 46 times higher than the base salaries paid to 
the two sales representatives that the Petitioner employed in 2016, and more than 20 times higher 
than the base salaries paid to all of the Beneficiary's subordinates put together. These figures are not 
compatible with the Petitioner's unsubstantiated description of its business model. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"timction managers." See section IOI(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. The statute plainly states that a "first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional." Section IOI(a)(44)(A)(iv) of the Act; 8 C.F.R. 
§ 204.5(j)(4)(i). If a beneficiary directly supervises other employees, the beneficiary must also have 
the authority to hire and fire those employees, or recommend those actions, and take other personnel 
actions. 8 C.F.R. § 204.5(j)(2). 
To determine whether the Beneficiary manages professional employees,. we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. 2 In the denial notice, the Director found that the Petitioner had not established that any of 
the Beneficiary's subordinates are professionals. The Petitioner asserts on appeal that the designer is 
"now pursuing her Bachelor Degree," and that the art advisor and law advisor each hold bachelor's 
degrees but could not find the documentation to prove it. This assertion does not resolve the issue, 
for several reasons. First, there is no supporting evidence of the claimed degrees. Even if the 
2 Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the 
Act states that "[t]he term profession shall include but not be limited to architects, engineers, lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
6 
Mauer of W-G-NYC Inc. 
employees had lost all documentation of their degrees, the degree-granting institutions could still 
provide transcripts. 
Second, it is not enough that an employee has a bachelor's degree; the job must require that degree. 
The Petitioner has not shown that this is the case. Third, if an individual does not yet hold a 
bachelor's degree, then we cannot conclude that the occupation requires a bachelor's degree. The 
designer holds only an associate's degree. If she is still "pursuing her Bachelor['s] Degree" after her 
hiring, then this, on its face, demonstrates that she did not need a bachelor's degree to be hired for 
the position. 
Fourth, there are no tax or payroll documents in the record to confirm that the Petitioner ever 
employed the law advisor as claimed. Finally, the Petitioner must establish eligibility at the time of 
filing. Several factors lead us to conclude that the Petitioner hired the art advisor and designer after 
the April 2016 filing date: (I) they were not mentioned in the initial filing; (2) each earned only 
$800 in 2016; and (3) the Petitioner's quarterly income tax returns reflect two new hires in the last 
quarter of 2016. 
The Petitioner's organizational structure at the time of filing included individuals identified as 
managers and supervisors, but the Petitioner has not shown the extent to which the Beneficiary 
supervises and controls their work. None of these employees earned a full-time wage, and the 
Petitioner's explanation for that fact lacks both corroboration and credibility. The Petitioner did not 
show that the individuals identified as managers and supervisors actually perform those roles to a 
significant degree. Furthermore, the near-total changes in personnel and organization between the 
time of filing in April 2016 and the RFE response in September 2017 raise additional questions 
regarding the company's true structure. The Petitioner is not new, having incorporated in 2009; the 
documented level of organizational flux is of concern. -
The record does not demonstrate that the Beneficiary is, and will continue to be, a personnel 
manager. The Petitioner also has not articulated a specific function that the Beneficiary will 
manage. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. lfa petitioner 
claims that a beneficiary will manage an essential function, it must clearly describe the duties to be 
performed in managing the essential function. In addition, the petitioner must demonstrate that: 
(I) the function is a clearly defined activity; (2) the function is "essential," i.e., core 
to the organization; (3) the beneficiary will primarily manage, as opposed to perform, 
the function; (4) the beneficiary will act at a senior level within the organizational 
hierarchy or with respect to the function managed; and (5) the beneficiary will 
exercise discretion over the function's day-to-day operations. 
Matter ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the Petitioner has 
not described or provided evidence that the Beneficiary manages an essential function. 
Matter of W-G-NYC Inc. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Under the statute, a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of 
management for a beneficiary to direct and a beneficiary must primarily focus on the broad goals 
and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only '"general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Section IOJ(a)(44)(B) of the Act. 
Here, as explained above, the Petitioner claims that the Beneficiary oversees a number of employees 
with managerial titles, but the Petitioner has not shown that they are in fact managers. Some earh as 
little as $3600 a year; others do not appear in the Petitioner's tax and payroll records at all. The 
record does not establish the existence of a management structure that would warrant executive 
leadership. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as a multinational manager or executive within the meaning of section I 0 I (a)( 44) 
of the Act. By statute, eligibility for this classification requires that the duties of a position be 
"primarily" ·of an executive or managerial nature. Sections 101(A)(44)(A) and (B) of the Act. 
While the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and 
possesses the requisite level of authority with respect to discretionary decision-making, the record 
does not establish that her actual duties, as of the date of filing, would be primarily managerial or 
executive in nature. 
IV. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in a primarily managerial or 
executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofW-G-NYC Inc., ID# 1227627 (AAO May 16, 2018) 
8