dismissed EB-1C Case: Gemstone Trading

U.S. Citizenship 
and Immigration 
Services 
In Re: 6711455 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 20, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a gemstone trading company, seeks to permanently employ the 
Beneficiary as its "chief executive officer/president" under the first preference immigrant 
classification for multinational executives or managers . Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition on multiple grounds. The Director 
concluded the Petitioner did not establish that: ( 1) it had a qualifying relationship with the 
Beneficiary's former foreign employer; (2) the Beneficiary would be employed in a managerial or 
executive capacity in the United States; and (3) the Beneficiary was employed abroad for at least one 
year in the three preceding his entry into the United States as a nonirnmigrant. 
On appeal, the Petitioner asserts that various discrepancies in its corporate and tax documentation were 
due to ineffective assistance of counsel and mistakes made on the part of its accountant. Further, the 
Petitioner states that the Beneficiary's U.S. duty description is sufficiently detailed and establishes 
that he would act in an executive capacity in the United States. Lastly, the Petitioner indicates that it 
provided sufficient supporting documentation to demonstrate that the Beneficiary was employed 
abroad by the foreign employer for at least one year in the three preceding his entry into the United 
States as a nonirnmigrant. 
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 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). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The first issue we will address is whether the Petitioner established that the Beneficiary would act in 
an executive capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in a managerial capacity. Therefore, we restrict our analysis to whether the Beneficiary 
would be employed in an 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. 
When examining the executive capacity of a given beneficiary, we will review 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 an executive capacity. 
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 a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, and 
any other factors that will contribute to understanding a 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, its staffing levels, and its organizational structure. 
A. Duties 
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 Petitioner stated that it "is a gemstone trading company, involved in importing and distributing 
diamonds and colored stones." The Petitioner indicated that the Beneficiary had "successfully 
spearheaded [the Petitioner's] business activities nation-wide," established "relationships with key 
retailers," and developed "strategic initiatives" to "establish a stronghold in the diamond industry in 
the United States." The Petitioner listed the following duties for the Beneficiary as its president: 
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Overall business development and staff in the United States - 45% 
• 
• 
• 
• 
• 
Require his team to create regular reports regarding the company's operations, 
finances, marketing and sales strategies, and personnel matters. Evaluate the work 
of his U.S. based subordinates. Maintain and develop effective means to 
communicate with his manager. Implement internal procedures to maximize the 
Petitioner's overall productivity. - 20% 
Direct the Petitioner's marketing and sales strategies in the U.S. and implement 
action plans consistent with long term goals and global initiatives. Develop annual 
timetables with quarterly goals for his subordinates. Review subordinates' reports 
and proposals on current and future marketing plans and strategies with an eye 
toward improving the company's market position. - 25% 
Review reports of marketing team on industry competitors and focus on market 
share, campaigns themes, channels of distribution, and pricing strategies. Develop 
critical marketing and sales campaigns, such as traditional and social media 
campaigns. Determine the company's vital market positioning strategy. - 20% 
Oversee and monitor all lead generation activities and direct the development of 
marketing and sales strategies. Provide strategic guidance to his marketing and 
sales manager and associates and approve their marketing plans. - 15% 
Determine how to utilize the company's personnel resources to its advantage by 
regularly assessing the responsibilities of Petitioner staff Assign Petitioner 
personnel appropriate assignments to meet the objectives of the company. Make 
decisions on the general distribution of tasks to achieve the highest level of 
productivity. - 20% 
Execute fiduciary responsibility in overseeing capital, budgets, costs and ROI to 
ensure profitability - 40% 
• 
• 
• 
Develop and direct the implementation of comprehensive business plans and 
strategies to facilitate the continuous achievement of cost-effective operations and 
market development activities. Direct subordinates to study the marketing 
strategies implemented and determine their level of profitability as compared to the 
costs and determine which to keep. - 35% 
Determine and develop the company's objectives for reaching year end profit 
targets. Review the revenue forecast and set goals for every year using a variety of 
tools, including past performance, marketplace analysis, and industry research. Set 
goals for attaining financial efficiency by improving profit margins annually. - 30% 
Routinely execute financial decisions on financial and budget activities. Provide 
strategic financial input and leadership on crucial decision-making issues. Liaise 
with the external CPA and direct them regarding financial and budget activities. 
Establish and enforce financial policies and procedures to maintain and protect 
company assets. Determine and oversee the implementation of necessary 
investments for improvement of business operations, gemstone procurement, 
advancements in production, and staff training and development. - 35% 
Serve as key representative of the Petitioner in the United States - 15% 
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Represent the company when reporting to the parent company abroad and participate 
in high-level meetings with significant clients, in order to maintain existing 
relationships and establish new and significant partnerships. 
The Petitioner submitted a vague U.S. duty description for the Beneficiary that does not credibly 
demonstrate his actual day-to-day executive-level tasks. The Beneficiary's duty description includes 
several generic duties, such as stating that he is "in charge of marketing and sales strategies," 
implementing "internal procedures" and "action plans," developing "annual timetables with quarterly 
goals," determining "the company's vital market positioning strategy," providing "strategic 
guidance," amongst other ambiguous tasks. These duties could apply to any president in any business 
and industry and they do not sufficiently substantiate the Beneficiary's asserted role. The Petitioner 
provided insufficient examples and little supporting documentation to demonstrate the Beneficiary's 
performance of qualifying duties, such as marketing and sales strategies he developed, internal 
procedures he implemented, action plans he put in place, "long term goals and global initiatives" he 
followed, or how he improved the company's "market position." Likewise, the Petitioner did not 
detail or document the campaign themes, distribution channels, or pricing strategies the Beneficiary 
evaluated, "vital market positioning" strategies he determined or "critical marketing and sales 
campaigns" he developed. 
Further, the Petitioner did not sufficiently explain or provide supporting documentation to substantiate 
his delegation of duties to his claimed subordinates, including his claimed provision of "strategic 
guidance" to his claimed marketing and sales manager and sales associates, "appropriate assignments 
to meet the objectives of the company," decisions on the "general distribution of tasks," or 
determinations on staff training. In fact, there is no supporting evidence on the record demonstrating 
the Beneficiary's supervision of his claimed subordinates or his delegation of tasks to them. In 
addition, it also did not describe or document the "levels of profitability compared to costs" the 
Beneficiary analyzed, the marketing and operational strategies he determined, how he improved profit 
margins, the "crucial" financial decisions he made, budgets he oversaw, financial policies and 
procedures he set, or investments he implemented to improve business operations. Similarly, it did 
not provide credible details or support the significant clients the Beneficiary met with or new 
partnerships he established. 
The lack of detail and documentation regarding the Beneficiary's asserted executive-level capacity is 
particularly notable given that the Petitioner asserts that he has acted in this role in United States since 
2008. The Petitioner has not submitted a sufficiently detailed duty description describing the 
Beneficiary's actual day-to-day executive-level duties to credibly establish that he would devote his 
time primarily to qualifying tasks. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive 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). 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational executive within the meaning of section 101(a)(44)(B) of the Act. The Beneficiary may 
exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of 
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authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that his actual duties would be primarily executive in nature. 
B. Staffing and Executive Capacity 
If staffing levels are used as a factor in determining whether an individual is acting in a executive 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
As discussed, the Petitioner contends that the Beneficiary would act in an executive capacity in the 
United States. 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. Section 101(a)(44)(B) of the Act. 
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 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 the 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." Id. 
The Petitioner submitted an organizational chart coinciding with the date the pet1t10n was filed 
indicating that the Beneficiary supervised a sales and marketing manager overseeing three sales and 
marketing associates. The chart also reflected that the Beneficiary managed an external certified 
public accountant (CPA). Further, the sales and marketing associates were shown to supervise a 
secretary/bookkeeper overseeing an administrative assistant. 
The Petitioner did not submit a sufficiently detailed and credible duty description for the Beneficiary's 
claimed subordinate supervisor to establish that he acts in an elevated position within a complex 
organizational hierarchy. First, the Petitioner emphasizes that the Beneficiary's subordinates are 
"professionals;" however, this is not relevant to demonstrating that he would act in an elevated position 
within a complex organizational hierarchy. Again, similar to the Beneficiary's generic duties, the 
duties of the asserted sales and marketing manager included few credible details to sufficiently 
substantiate this position and they could apply to any sales manager acting in any company and 
industry. For example, the Petitioner did not sufficiently articulate the "marketing and sales activities" 
or the "established systems" this claimed subordinate oversees. In fact, there is no evidence of these 
type of operations on the record for the sales and marketing manager to oversee. In addition, as we 
discussed, the Petitioner provided no supporting evidence to substantiate the Beneficiary's oversight 
of his claimed subordinate manager or his delegation of duties to him. Likewise, there is no evidence 
of the Beneficiary supervising or delegating tasks to the company's claimed sales and marketing 
associates. Again, this lack of detail and supporting evidence is notable considering the Petitioner 
claims that the Beneficiary has been acting in his executive level role as far back as 2008. 
Similarly, with respect to the company's asserted sales and marketing associates, there is little 
indication as to the products they are selling, the clients they are working with, the contracts they 
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negotiate, or the customer service they provide. As noted, the Petitioner provided few specifics and 
little supporting documentation to substantiate the Beneficiary's setting of broad goals and policies 
within its organization. In contrast, the Petitioner indicates that its primary business activity is the 
importation of gemstones. However, there is no explanation as to who is performing this critical 
function of the business; namely, the ordering, shipping, importation, and inventory of these 
gemstones and these duties are notably not included in the duty descriptions of the Beneficiary's 
claimed subordinates. In fact, the Petitioner suggests that prior to assuming the his role in the United 
States the Beneficiary traveled extensively for the foreign employer to generate gemstone orders 
abroad and that he coordinated these orders The record also includes invoices bearing his name, 
beginning in 2005, for the purchase and shipment of these goods. However, the record includes little 
indication or evidence that the Beneficiary has been relieved of this primary operational function of 
the business. 
Furthermore, the most recent state quarterly wage forms provided by the Petitioner from the third 
quarter of 2017 reflected only three members of the company's asserted organizational chart; 
specifically, the claimed sales and marketing manager and two sales and marketing associates. 
However, the Petitioner questionably did not submit state quarterly wage forms, or other similar tax 
documentation, more relevant to the time the petition was filed in March 2018 to demonstrate its 
asserted organizational structure as of the date the petition was filed. Similarly, the Petitioner did not 
substantiate that its organizational structure was sufficient to support the Beneficiary within a complex 
organization hierarchy as of the date of this appeal. The Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing and continuing 
through adjudication. 8 C.F.R. § 103.2(b)(l). The Petitioner has not established that the Beneficiary 
would act in an elevated position within a complex organizational hierarchy and that he would 
primarily focus on the broad goals and policies of the organization rather than its day-to-day 
operations. 
For the foregoing reasons, the Petitioner has not demonstrated that the Beneficiary would act in an 
executive capacity in the United States. 
III. FOREIGN EMPLOYMENT FOR AT LEAST ONE YEAR 
The next issue we will address is whether the Petitioner established that the Beneficiary was employed 
abroad in a managerial or executive capacity for at least one year in the three years preceding his entry 
into the United States as a nonimmigrant. See 8 C.F.R. § 204.5(j)(3). Because of the dispositive effect 
of the above finding of ineligibility; namely, our affirmation of the Director's conclusion that the 
Petitioner did not establish that the Beneficiary would act in an executive capacity in the United States, 
we will only briefly address this issue. 
In denying the petition on this ground, the Director pointed to foreign employer and Beneficiary tax 
returns and stated that these did not support the payment of his salary abroad in the three years 
preceding his entry into the United States as a nonimmigrant. On appeal, the Petitioner contends that 
the Beneficiary's foreign salary was not reflected in foreign employer tax returns because the Indian 
government did not strictly enforce this requirement prior to 2008. Similarly, the Petitioner states that 
the Beneficiary's payment of his foreign salary in cash was not shown in his personal tax returns 
because his mother did not know to include this income when she filed them on his behalf 
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Upon review, we do not find the Petitioner's assertions on appeal sufficient to overcome the Director's 
grounds for denying the petition based on the discrepancies noted above. The Petitioner submitted 
vouchers it claims reflect the Beneficiary's payment of salary in cash (15,000 rupees per month) by 
the foreign employer from 2005 through to his entry into the United States in September 2008. 
However, as noted by the Director, the Petitioner also submitted a foreign employer Indian tax return 
for the year ending in March 2009 reflecting that it had only paid 111,200 rupees in salary during that 
year, much less than the claimed 155,000 rupees it claimed to pay to the Beneficiary during that year. 
Likewise, Beneficiary's personal tax returns from India do not reflect his payment of these amounts 
during this same period. For instance, the Beneficiary's Indian tax return accounting for the period of 
April 2005 through March 2006 indicated that his salary from income was "nil," while that covering 
the following fiscal year (April 2006 through March 2007) reflected that his sole source of income 
(amounting to 120,400 rupees) was from the leasing of a residential property. 
In response to these noted discrepancies, the Petitioner submitted letters from the foreign employer's 
accountant, the Beneficiary's accountant, and his mother. The letter from the foreign employer's 
accountant acknowledges that the foreign employer's return for the April 2008 to March 2009 fiscal 
year did not reflect the Beneficiary's claimed nine months of salary (135,000 rupees) preceding his 
entry into the United States. However, the accountant only ambiguously explains that "there were 
many expenses associated with the employee salaries, that is why it could be that the amount was 
[only 111,200 rupees]." In addition, the Beneficiary's accountant and his mother explain in letters 
and affidavits that his payment of salary was not fully reflected in his personal Indian tax returns 
because these were submitted by his mother due to his travels and that she did not report this income. 
We do not find these explanations sufficient to overcome the various material discrepancies indicating 
that the Beneficiary was not paid by the foreign employer in the three years prior to his entry into the 
United States. The Petitioner must resolve discrepancies and ambiguities 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). We note that it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N 
Dec. 799, 806 (AAO 2012). 
Beyond its insufficient explanations of the above noted discrepancies, the Petitioner provides little 
supporting evidence to substantiate the Beneficiary's employment with the foreign employer in the 
three years prior to his entry into the United States. For instance, the Petitioner stated that the 
Beneficiary was responsible for the "export and international marketing activities" of the foreign 
employer, including generating "roughly two thirds of [the foreign employer's] annual sales." It also 
indicated that the Beneficiary "defined the export goals of the company," "developed international 
marketing strategies," ensured that "goods ordered abroad were procured and delivered according to 
promised time and budget," "worked closely with other department heads and personnel as to design 
and production initiatives," amongst other claimed tasks. 
However, notably, there is almost no evidence of the Beneficiary acting in this claimed capacity 
abroad. Although we acknowledge the Petitioner's contention that the Beneficiary's foreign 
employment was some time ago and that it was perhaps not legally obligated to retain records from 
this time, it also submitted tax returns and claimed cash payment vouchers from this period in apparent 
contradiction to its assertion that records from this time were no longer available. Further, there little 
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supporting evidence reflecting the Beneficiary actually acting in his claimed managerial role abroad, 
including him coordinating marketing activities, generating two thirds of the foreign employer's 
annual sales, defining the export goals of the company, developing international marketing strategies, 
working with department heads on design and production initiatives, or performing any other 
managerial tasks abroad. 
For the foregoing reason, we affirm the Director's conclusion that the Petitioner did not establish that 
the Beneficiary was employed abroad in a managerial capacity for at least one year in the three years 
preceding his entry into the United States as a nonimmigrant. 
IV. QUALIFYING RELATIONSHIP 
Since the identified bases for denial are dispositive of the Petitioner's appeal, we decline to reach 
and hereby reserve its arguments regarding whether a qualifying relationship exists between it and 
the Beneficiary's former foreign employer. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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