dismissed EB-1C Case: Heavy Equipment Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 30, 2018 
PETITION: FORM 1-140, IMMIGRANT P~TITION FOR ALIEN WORKER 
The Petitioner, a seller and exporter of heavy equipment, vehicles, computers, and other technology 
products and-accessories, seeks to permanently employ the Beneficiary as its general manager under 
the first preference immigrant classification for multinational executives or managers. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1 I53(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 Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Petitioner and the Beneficiary's foreign employer have a qualifying 
relationship and that the Beneficiary's U.S. position would be in a managerial capacity. 
On appeal, the Petitioner disputes the denial decision, asserting that the Director did not properly 
weigh the submitted evidence and required irrelevant documents that are not critical to establishing 
that the Petitioner has a qualifying relationship with the Beneficiary's foreign employer.' -· 
Upon de novo review, we find that the Petitioner has now established that it has a qualifying 
relationship with the Beneficiary's foreign ernployer.2 However, we find that the Petitioner has not 
overcome the Director's findings regarding the Beneficiary's employment capacity in his proposed 
U.S. position. Therefore, 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 
1 After conducting an initial review of the record, we noted that certain documents that the Petitioner listed in the appeal 
exhibit list were missing. We therefore issued a letter informing the Petitioner of this evidentiary deficiency and allowed 
it an opportunity to provide the missing evidence. The Petitioner has responded to the letter and submitted the 
previously missing documents. 
2 The evidence submitted on appeal sufficiently demonstrates that the Petitioner and foreign entity have an affiliate 
relationship based on common ownership and control by the same individual. See 8 C.F.R. 204.50)(2) (defining 
"affiliate"). 
Matter of A-LLC 
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 inclu~e 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). 
IL U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue ~o be addressed is whether the Petitioner established that the Beneficiary will be 
employed in a managerial capacity. The Petitioner did not claim that the Beneficiary would be 
employed in an executive capacity; therefore, our analysis will address only the Petitioner's claim 
that the Beneficiary's proposed position would be in a managerial capacity. 
"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 
101(a)(44)(A) of the Act. 
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 job description 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. § 204.5(j)(3). Beyond the required description of the joh 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. 
Based on the statutory definition of managerial 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 managerial 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. 
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Maller of A- LLC 
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. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we take int~ account the reasonable needs of the organi:z.ation, in light of its 
overall purpose and stage of development. See section I 0l(a)(44)(C) of the Act. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. The Petitioner did not claim 
that the Beneficiary would assume the role of a function manager, but stated that he will supervise 
subordinate personnel. Personnel managers are required to primarily supervise and control the work 
of other supervisory, professional, or managerial employees. Contrary to the common understanding 
of the word "manager," 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." 8 C.F.R. § 204.5G)(4)(i). If a beneficiary directly 
supervises other employees, the beneficiary must also have the authority to hire and fire those 
employ~es, or recommend those actions, and take other personnel actions. 8 C.F.R. § 204.50)(2). 
In a supporting cover letter, the Petitioner stated that it has four "professional and supervisory-level 
employees," including the Beneficiary as general manager, an operations manager, a logistics 
coordinator, and an import/export specialist. Although the Petitioner stated that it intends to hire a 
logistics specialist in the future, it neither claimed nor provided evidence to establish that it had more 
than four employees, including the Beneficiary, when filing the instant petition. 
The Petitioner also provided employee job descriptions for only four employees, even though it 
claimed that in addition to the U.S. staff the Beneficiary "will have control over" 16 subordinates 
within the "multinational operation"; the Petitioner thereby indicated that the Beneficiary's 
supervisory oversight would not be limited to its immediate U.S.-based staff, but rather would 
extend to employees at affiliate entities. The Petitioner claimed that these employees will "range 
from professional, managerial, supervisory-level, to clerical" and further indicated that it relies on 
subcontractors to provide logistics and warehousing services, such as customs brokerage, freight 
forwarding, warehouse and storage, and machine operation. 
Although the Petitioner provided an organizational chart, the staffing structure it depicted was not 
consistent with the above claims concerning the company's staffing. Namely, the chart depicts the 
Beneficiary at the top of the hierarchy as the general· manager. followed by an in-house operations 
manager and a "CPA & Corporate Attorney" at the second tier. The chart indicates that the 
operations manager oversees a third tier of staff, including a logistics coordinator, an import/export 
specialist, and a logistics specialist position that will be filled in the future. The chart indicates that 
the warehouse, storage, freight forwarding, and customs brokerage service providers comprise the 
organization's fourth tier and shows the logistics coordinator as overseeing the providers of those 
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Matter of A- LLC 
services. Despite claiming that the Beneficiary would oversee a total of 16 subordinates within the 
"multinational operation," the Petitioner's organizational chart does not depict any positions beyond 
those mentioned herein, nor does the Petitioner state precisely which services would be provided by 
those affiliates' employees. 
In the denial decision the Director determined that the Petitioner did not establish that its 
organization would adequately support the Beneficiary in a managerial position.3 
On appeal, the Petitio~er states that "[a]ll employees subordinate to the Operations Manager will 
supervise operation workers, or subcontracted personnel." However, the Petitioner does not identify 
any "operation workers" or state the job duties these workers would perform; based on the 
Petitioner's organizational chart, the operations manager oversees a logistics coordinator and an 
import/export specialist, neither of whom is depicted as overseeing any '"operation workers." In fact, 
while the organizational chart indicates that the logistics coordinator will oversee contracted service 
providers, the logistics coordinator's job duty description does not include any supervisory duties; 
rather, it indicates that the logistics coordinator will, as his position title indicates, interact with and 
coordinate the service providers that take part in the process of transporting and delivering goods to 
their intended destinations. Despite the Petitioner's reference to a "supervisory-level staff," the 
organizational chart shows that the Beneficiary had only one subordinate manager or supervisor at 
the time of filing. Although the chart also indicates that the Petitioner used an accountant and 
corporate attorney for their respective services, there is no evidence that either of these service 
providers was subject to the Beneficiary's control and thus neither should be deemed a subordinate 
of the Beneficiary. In whole, we find that the Petitioner's reference to a "supervisory-level staff' is 
misleading, as it suggests a level of organizational complexity that the Petitioner does not appear to 
have had. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 l&N Dec. 369,376 (AAO 2010). 
Further, the Petitioner does not establish that at the time it filed the instant petition it had employees 
to whom it could assign marketing, sales, and customer service job duties, which are necessary to 
carry out the Petitioner's business of selling and exporting goods. Although the record indicates that 
the Petitioner expanded its staff to include sales and customer service personnel after the petition 
was filed, it must establish that all eligibility requirements for the immigration benefit were satisfied 
from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). In addition, 
a comparison of several quarterly wage reports shows a considerable decrease in the operation 
manager's salary from the 2015 second quarter, during which the operations manager was 
compensated $5600, to the 2016 third quarter, which immediately preceded the filing of this petition 
and during which the same individual was corp.pensated only $3000. This anomaly leads us to 
question whether the operations manager would be employed on a full-time basis as claimed and if 
not, who, if not the Beneficiary, would share in the operations manager's responsibilities. 
3 As the scope of the RFE was limited to addressing the Petitioner's qualifying relationship with the Beneficiary's 
foreign employer, the Petitioner did not provide any further evidence regarding its staffing or the Beneficiary's position 
within the organizational hierarchy. -
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Mauer of A- LLC 
The Petitioner correctly observes that we must take into account its reasonable needs without 
exclusively focusing on its size to determine whether the Beneficiary is or would be employed in a 
managerial capacity. See section 10l(a)(44)(C) of the Act. However, it is appropriate to consider 
the size of the petitioning company in conjunction with other relevant factors, such as the absence of 
employees who would perform the non-managerial functions of the company or a company that does 
not conduct business in a regular and continuous manner. Family Inc. v. USCIS, 469 F.3d 1313 (9th 
Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Moreover, the Petitioner's 
reasonable needs will not supersede the requirement that the Beneficiary must be "primarily" 
employed in a managerial capacity, spending the majority of his time on managerial job duties. See 
sections 101(a)(44)(A) of the Act. In the present matter, the Petitioner has not established that a 
three-person subordinate staff was sufficient to support the Beneficiary in a managerial capacity at 
the time of filing. As previously noted, despite claiming that it operates within a cross 
organizational context in which the Beneficiary oversees employees who work for the Petitioner's 
foreign affiliates, the Petitioner has not provided evidence to support this claim, nor has it adequately 
clarified which services the foreign employees would provide. Without this critical information we 
are unable to determine precisely how the employees of other entities work with the Petitioner and 
help it to relieve the Beneficiary from having to primarily carry out its non-managerial functions. 
The fact that the Beneficiary will manage the Petitioner's business does not necessarily establish 
eligibility he meets the statutory definition of managerial capacity within the meaning of section 
101 (a)( 44)(A) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" managerial in nature. Sections 101(A)(44)(A) 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, the Petitioner has not 
established that it has the staffing capacity to support the Beneficiary in a managerial position. 
B. Duties 
Next, we will determine whether the Petitioner provided an adequate job description to support the 
claim that the Beneficiary would primarily perform managerial job duties. 
In the initial support letter, the Petitioner provided a job duty breakdown in which it stated that 30% 
of the Beneficiary's time would be spent supervising the operations manager, which will involve 
evaluating reports on trends and invep.tory, offering strategies for obtaining rights to be an exclusive 
brand distributor, identifying growth opportunities, and overseeing marketing. Although the 
Petitioner also stated that the Beneficiary would authorize employee leave requests, it did. not 
establish that this human resource function is a top-level managerial job duty, particularly given that 
the Petitioner employs an operations manager who is depicted as the Beneficiary's direct subordinate 
and the employee who separates the Beneficiary froin the organization's lower-tier employees. 
Likewise, the Petitioner stated that the Beneficiary would supervise quality control in logistics 
operations; however, given that the logistics coordinator is directly subordinate to the operations 
manager, it is unclear why the Beneficiary is tasked with supervising quality control with respect to 
a function that is the domain of a third-tier employee. 
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Maller of A- LLC 
The Petitioner also stated that 40% of the Beneficiary's time would be allocated to "negotiating with 
high-level executives of vehicle and heavy machinery companies," overseeing a business 
development plan, and ensuring that the logistics plans and sales goals are met and that the customer 
service response is adequately provided. The Petitioner did not, however, establish that negotiating 
deals to purchase inventory is a managerial, as opposed to an operational job duty, nor did it explain 
how the Beneficiary would oversee the sales and customer service functions when it did not have 
any sales or customer ·service personnel to perform these functions at the time this petition was filed. 
·Throughout the job description, the Petitioner emphasized the Beneficiary's discretionary authority 
with regard to key elements of the business, including the Petitioner's staffing, profits, marketing 
strategies, and its finances and funding. However, as noted earlier, the Beneficiary's discretionary 
authority is only one of a number of elements that we consider in determining the managerial 
capacity of the proposed position. 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), ajf'd, 905 
F .2d 41 (2d. Cir. 1990). 
In the present matter, the Petitioner did not clearly define the Beneficiary's specific job duties and 
instead focused on his vague job responsibilities and its own broadly-cast business objectives that 
include expansion of the company's gross profits and the development of "a strategic business 
development plan." We find that these broad statements have common application to managers in 
most industries and although they convey a sense of the Beneficiary's discretionary authority over 
the Petitioner's financial and business matters, they do not meet the regulation that requires the 
Petitioner to "clearly describe the duties to be performed by the [Beneficiary]." 8 C.F.R. 
§ 204.50)(5). The Petitioner did not provide a job description that defines the specific tasks the 
Beneficiary would perform to meet its business objectives, nor did it establish that the Beneficiary 
would primarily carry out managerial duties within the scope of the Petitioner's organization. 
III. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the· Beneficiary 
will be employed in the United States in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of A- LLC, ID# 1142555 (AAO Aug. 30, 2018) 
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