dismissed EB-1C Case: Hardware And Tools Wholesale

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-1-E- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 29, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a wholesaler of hardware and tools, seeks to permanently employ the Beneficiary as 
president and chief executive officer (CEO) 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). 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 Beneficiary would be employed in a managerial or executive capacity in 
the United States. The Director also determined that the Petitioner did not demonstrate that the 
Beneficiary had been employed in a managerial or executive capacity abroad. In addition, the 
Director concluded that the Petitioner did not establish that it was doing business consistent with the 
regulations as of the date the petition was filed. 
On appeal, the Petitioner contends, contrary to the Director's conclusion, that the Beneficiary's U.S. 
duty description is sufficiently detailed and that its organizational chart and payroll documentation 
demonstrate that the Beneficiary would oversee a complex organizational hierarchy. Likewise, the 
Petitioner makes similar assertions with respect to the Beneficiary's former foreign employment. 
Upon de novo review, we will dismiss the appeal as the Petitioner has not established that the 
Beneficiary would act in a managerial or executive capacity in the United States or that she acted in 
a managerial or executive capacity abroad. We will, however, withdraw the Director's decision with 
respect to whether the Petitioner was doing business. 1 
1 The Petitioner provided copies of its tax returns for 2015 and 2016 and other documentation sufficient to establish by a 
preponderance of the evidence that it was doing business in the United States for at least one year as of the date of filing. 
See 8 C.F.R. § 204.5G)(3)(i)(D). 
Matter of B-I-E- Inc 
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. § 204.50)(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 
10l(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. § 204.50)(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. 
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Matter of B-1-E- Inc 
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. 
Specifically, the Petitioner stated that it was established to expand the sale of its foreign parent 
company's tools and building-related hardware. The Petitioner indicated that it was "actively 
seeking opportunities to target larger companies such as and It 
further explained that it would become the exclusive supplier of lights to a company in the 
United States and that it would build a manufacturing plant for this purpose. The Petitioner also 
indicated that the Beneficiary's role in the United States would be primarily focused on these 
initiatives. 
The Petitioner stated that the Beneficiary would devote 25% of her time to creating, implementing, 
and enforcing company policies and procedures, including preparing business strategies and plans, 
developing company policies and goals, assessing competitors, and making corporate decisions. It 
further indicated that this 25% consisted of the Beneficiary adjusting policies and the company's 
business orientation when required and determining areas for cost reduction and improvement. The 
Petitioner further explained that the Beneficiary would spend 20% of her time building and 
maintaining key business relationships, performing such duties as establishing and maintaining 
relationships with customers, suppliers, and distributors, and authorizing and negotiating major 
company contracts. It also stated that the Beneficiary would be responsible 15% of the time for 
managing projects and marketing strategies, including using project management skills for the 
successful delivery of projects, finding new markets, and determining sales and marketing strategies. 
In addition, the Petitioner indicated that the Beneficiary would devote 10% of her time to reviewing 
and approving the annual operating budget and making financial adjustments and spend another I 0% 
utilizing and allocating the operating budget, including handling company financial accounts and 
formulating cost controls. Further, it explained that the Beneficiary would spend I 0% of her time 
making employment decisions, finding, appointing, terminating, or promoting employees, 
monitoring their performance, and providing them with training. Lastly, the Petitioner stated that the 
Beneficiary would be responsible 10% of the time for acting as a liaison between the Petitioner and 
her former foreign employer in China. 
In a later request for evidence (RFE), the Director stated that the Beneficiary's job description was 
overly broad, too brief, and vague, noting that it did not clearly establish her day-to-day tasks. The 
Director requested that the Petitioner submit a letter clearly describing the Beneficiary's proposed 
job duties, including her specific daily tasks. In response, the Petitioner resubmitted the same duty 
description for the Beneficiary discussed above. We note that failure to submit requested evidence 
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Matter of B-1-E- Inc 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ 103.2(b)(l4). 
The Petitioner did not submit a sufficiently detailed duty description describing the Beneficiary's 
day-to-day executive-level duties that credibly establishes she would devote her time primarily to 
qualifying tasks. The Beneficiary's duty description includes several generic duties that could apply 
to any executive acting in any business or industry and they do not provide insight into the actual 
nature of her role. The Petitioner provided insufficient examples and little supporting documentation 
to demonstrate the Beneficiary's performance of qualifying duties, such as business strategies and 
plans she prepared, major investments she determined, policies and procedures she ensured 
employees complied with, corporate decisions she made, or "company's business orientation" she 
adjusted. 
Likewise, the Petitioner articulated and documented few relationships the Beneficiary developed 
with customers, suppliers, and distributors, or major contracts and partnerships she established. For 
instance, the Petitioner asserted that it developed relationships with and 
. but did not provide supporting documentation to substantiate these relationships. In fact, 
despite the Beneficiary acting in her asserted role since December 2014, the Petitioner provided only 
one contract it executed with a client, a January 2016 "manufacturing agreement" within which it 
agreed to set up machinery at a warehouse to begin manufacturing tubes and 
products. However, there is littl_e indication or supporting evidence that these plans were realized as 
of the date the petition was filed in September 2016. Further, the submitted evidence indicates that 
the Beneficiary owns 90% of her former foreign employer; as such, it appears questionable that she 
would spend 10% of her daily time reporting to the foreign company about the progress of the 
Petitioner. In addition, the Beneficiary's duties mention that she spends 15% of her time on project 
management and "delivery of projects," but there is no information as to what projects the Petitioner 
is referring to. 
The Petitioner also did not provide detail or documentation to substantiate projects the Beneficiary 
delivered on, new markets she found, or sales and marketing strategies she implemented. Similarly, 
the Petitioner did not articulate or document financial adjustments she made to the company, cost 
control measures she put in place, or training she provided to staff. Most importantly, the record 
does not include evidence reflecting that the Beneficiary has been or would be delegating non­
qualifying operational duties to her claimed subordinates. This lack of detail and documentation is 
particularly noteworthy since the Petitioner asserts that the Beneficiary has been acting as president 
and CEO of the company since December 2014. 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). 
Even though the Beneficiary holds a senior position within the organization, the fact that she will 
manage or direct a business does not necessarily establish eligibility for classification as a 
multinational executive within the meaning of section 101(a)(44)(B) of the Act. By statute, 
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Matter of B-1-E- Jnc 
eligibility for this classification requires that the duties of a position be "primarily" executive in 
nature. Id. 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; however, the 
position descriptions alone are insufficient to establish that his actual duties would be primarily 
executive in nature. 
B. Staffing 
As noted above, beyond the required description of the job duties, we also 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-, and the nature of the 
business along with any other factors that will contribute to understanding the Beneficiary's actual 
duties and role within the petitioning organization. 
If staffing levels are used as a factor in determining whether an individual is acting in an 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. 
The Petitioner asserts that the Beneficiary qualifies as an executive. 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 organization must have a subordinate level of 
managerial employees for a beneficiary to direct and they 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 reflecting that the Beneficiary oversees a controller, 
a manager of its sales department, and a manager of "marketing/support." The chart also showed 
that the controller supervises an "AP/AR clerk," that the sales manager oversees a sales associate, 
and that the marketing/support manager supervises an IT consultant. 
As noted, the Petitioner stated that it was established in the United States to sell its foreign parent's 
tools and hardware. The Petitioner asserted that it would develop relationships with large retailers 
"such as and the and indicated in response to the RFE that it was 
selling goods to these large retailers. In addition, the Petitioner stated that it would become the 
exclusive supplier of lighting to a provider in the United States and it submitted a 
"manufacturing agreement" with this company reflecting that it had agreed to establish a 22,000 
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Matter of B-1-E- Inc 
square foot manufacturing facility for this purpose. 
that it had filed patent applications for a 
European Union. 
The Petitioner also provided evidence indicating 
in the United States, Canada, and the 
However, there is little supporting evidence on the record as of the date the petition was filed to 
demonstrate that Petitioner regularly sold goods to the referenced large retailers or that it established 
a 22,000 square foot manufacturing facility, the primary reason it was established in the United 
States and a central part of the Beneficiary's asserted role. This lack of supporting evidence is 
particularly noteworthy since the Beneficiary was originally transferred to the United States to fulfill 
these plans in December 2014. 
Further, given this evidence of its operations, the duty descriptions provided for the Beneficiary's 
claimed managerial subordinates lack credibility. The duty descriptions submitted for the 
Beneficiary's claimed subordinates are also generic and vague. For instance, the Petitioner stated 
that the financial controller would be tasked with analyzing financial information, preparing 
financial reports, dealing with "complex accounting matters," and reviewing "monthly management 
procedures." First, the Beneficiary's duty description indicated that she would spend at least 20% of 
her time on financial matters, and given the level of the Petitioner's operations, it seems unlikely that 
the company would have two higher level managers devoted to this function. Further, the Petitioner 
has not provided any specifics to lend credibility to the controller's duties, such as explaining 
complex accounting matters he handled or monthly management procedures he reviewed. 
Similarly, the Petitioner stated that the sales manager would be tasked with carrying out the 
company's sales plans and policies, establishing sales territories and training programs, managing 
key customer accounts, visiting with distributors, conducting retail activities and online operations, 
and resolving customer complaints. However, the sales manager was shown to oversee only one 
sales associate, so it is questionable that this employee's duties would include responsibility for 
establishing sales territories and training programs. In addition, the record includes no evidence that 
the company has the retail or online sales mentioned in the sales manager's duty description. The 
Petitioner also did not detail sales policies or plans the sales manager carried out or key customer 
accounts or distributors she managed. 
Furthermore, the Petitioner explained that the marketing and support manager would be responsible 
for carrying out marketing policies and programs and pricing strategies, assisting in product 
development, evaluating financial aspects of product development, working with advertising and 
promotion managers, compiling lists of service offerings, and expanding the company's "product 
network." Again, the provided evidence does not demonstrate that the marketing and support 
manager has product development activities to manage. Further, it is not sufficiently clear what 
products the Petitioner sells or what "product network" the marketing and support manager would 
expand. The marketing and support manager's duties also state that she would work with 
"advertising and promotion managers"; however, these employees are not listed in the Petitioner's 
organizational chart. Likewise, the Petitioner did not detail marketing policies, programs, or pricing 
strategies the marketing and support manager carried out, product development she managed, or 
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Matter of B-1-E- Inc 
service offerings she oversaw. In addition, the Petitioner asserts that this employee supervised an IT 
consultant tasked with carrying out IT projects, developing project plans for IT projects, and 
"conferring with project personnel." But again, it is not clear to what IT projects or which project 
personnel the Petitioner is referring. In fact, the Petitioner provided invoices issued by the asserted 
IT consultant indicating that he only worked 16 hours for the company in 2014 on matters relevant 
to initially launching its new office. There is little indication or evidence that this contractor could 
be considered a part of the company's organizational chart or that he was providing services for the 
Petitioner at the time of filing. 
Likewise, the Petitioner contends that it engages foreign employees for various functions including 
business development, finance, human resources, purchasing, production, logistics, and packing. 
However, the Petitioner provides no specifics as to these foreign employees who assist the company, 
how they assist, nor does it submit supporting documentation to corroborate that foreign parent 
employees perform duties for the Petitioner. 
In fact, the lack of evidence to substantiate that foreign employees support the Petitioner only leaves 
question as to whether it is sufficiently operational or whether it has sufficient employees to perform 
the day-to-day duties of its claimed manufacturing facility and sales to large retailers, such as 
employees to handle the purchasing, production, logistics, and packing referenced above. For 
instance, the Petitioner's organizational chart appears to include only one employee devoted to these 
types of operational functions, the AP/AR clerk who is stated to earn only $12,000 per year, 
indicating that she only works part-time. Therefore, it is not clear how the Petitioner is performing 
the operational aspects of its business referenced above with only one part-time employee devoted to 
these tasks. Further, this lack of operational support leaves question as to whether the Beneficiary's 
claimed managerial subordinates act in their asserted roles and whether she is primarily relieved 
from performing non-qualifying operational tasks. 
In sum, the Petitioner has not provided credible duty descriptions to substantiate that the Beneficiary 
oversees a subordinate level of managerial employees to allow her to primarily focus on the broad 
goals and policies of the organization rather than its day-to-day operations. 
Based on the foregoing discussion, we find the Petitioner has not established that the Beneficiary 
acted in an executive capacity as of the date the petition was filed or that she would act in an 
executive capacity under an approved petition. The Beneficiary's duty description is overly vague 
and the Petitioner submitted few specifics and little documentation to substantiate her performance 
of executive-level duties. The Petitioner has also not provided credible duty descriptions for the 
Beneficiary's asserted managerial subordinates and it has not properly substantiated its asserted 
operations to demonstrate that they were sufficient to support her in an executive capacity. The 
evidence is not sufficient to demonstrate that the Beneficiary acted in an elevated position within a 
complex organizational hierarchy overseeing a subordinate level of managerial employees or that 
she was primarily tasked with directing the management and establishing the goals and policies of 
the organization. 
Matter of B-1-E- Inc 
III. FOREIGN EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director also denied the petition finding that the Petitioner did not establish that the Beneficiary had 
been employed in a managerial or executive capacity abroad. Similar to the Beneficiary's U.S. role, the 
Petitioner does not assert that the Beneficiary acted in a managerial capacity abroad; as such we will 
only analyze whether it established that she acted in an executive capacity. 
In denying the petition, the Director found that the Beneficiary's asserted foreign position description, 
much like her U.S. duty description, was overly generic and vague and failed to establish her day-to-day 
executive-level duties abroad. The Director also noted that the Petitioner did not provide duty 
descriptions for the Beneficiary's foreign subordinates. 
On appeal, the Petitioner submits additional evidence specific to the foreign employer, including one 
purchasing contract from September 2013, foreign employer meeting minutes including the Beneficiary 
from August 2010, and a foreign employer payroll listing from April 2013 through June 2013. Further, 
the Petitioner contends that it provided duty descriptions for the Beneficiary's subordinates abroad in a 
submitted foreign employer organizational chart. 
In its appeal, the Petitioner does not provide additional detail or evidence regarding the Beneficiary's 
day-to-day foreign duties. As such, we concur with the Director's conclusion that the Petitioner did not 
submit a sufficiently detailed duty description for the Beneficiary in her former capacity abroad. Much 
like the Beneficiary's U.S. duty description, her foreign duties include several generic duties that could 
apply to any executive acting in any business or industry and they do not provide insight into the 
actual nature of his role abroad. The Petitioner provided insufficient examples and little supporting 
documentation to demonstrate "engines" the Beneficiary set up to "drive sustainable growth," sales 
and marketing strategies she implemented, cost controls she formulated, business plans she 
proposed, or long term relationships with clients and business associates she established. Likewise, 
the Petitioner did not articulate or document contracts with customers and suppliers the Beneficiary 
negotiated abroad, policies and procedures she monitored, staff members she appointed, or training 
she provided to staff. Again, 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 ofreiterating the regulations. Fedin Bros., 724 F. Supp. at 1103, 1108. 
In fact, on appeal, the Petitioner submits "meeting minutes" from an August 2010 meeting attended 
by the Beneficiary, a "manager's representative," and "representatives of each department." This 
document includes vague statements that leave question as to her actual duties abroad. First, we note 
that the Petitioner is required to demonstrate that the Beneficiary acted in an executive capacity for 
one year in the three preceding her entry into the United States on an L-lA intracompany transferee 
visa in December 2014. However, the submitted meeting minutes appear to be outside this three 
year period preceding the Beneficiary entry, leaving them of limited probative value. Regardless, 
similar to the Beneficiary's foreign duties, the provided meeting minutes vaguely refer to a "quality 
management system," "disputes between different departments" being reduced, improving "the 
profitability of the whole company as well as the personal qualities and management," improving 
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Matter of B-1-E- Inc 
"the quality management system," and formulating "the rules, regulations and attendance system of 
the company." Again, these overly vague statements provide little insight into the foreign 
employer's day-to-day operations and the Beneficiary's role therein. 
Furthermore, as discussed, the Director also determined that the Petitioner did not submit duty 
descriptions for the Beneficiary asserted subordinates abroad, while the Petitioner contends that it 
did provide these descriptions in the submitted foreign employer organizational chart. However, the 
referenced organizational chart is dated in 2017 and does not include the Beneficiary; therefore, it 
provides little insight into her executive role during the relevant period from 2011 to 2014. Further, 
the duty descriptions submitted in the aforementioned organizational chart are very brief and generic 
and provide little indication as to the actual nature of the duties performed by the 18 employees the 
Beneficiary was claimed to supervise. 
Beyond this, the Petitioner only submits internally generated payroll listings including the 
Beneficiary and several other employees during three months of 2013. However, this limited 
evidence does not overcome the deficiencies in the submitted job description or the lack of evidence 
related to her subordinates during her employment abroad, which led the Director to deny the 
petition. 
For these reasons, the Petitioner did not demonstrate that the Beneficiary acted in an executive 
capacity abroad. 
IV. CONCLUSION 
The appeal will be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in the United States in an executive capacity and it has not demonstrated that she was 
employed in an executive capacity abroad. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-1-E- Inc, ID# 1576076 (AAO Aug. 29, 2018) 
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