dismissed EB-1C Case: Home Textile Products

MATTER OF R-I-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 4, 2015 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an importer of home textile products, seeks to employ the Beneficiary as its 
president 1 under the immigrant classification of a multinational executive or manager. See 
Immigration and Nationality Act (the Act) § 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). The Director, 
Texas Service Center, denied the petition. The matter is now before us on appeal. The appeal will 
be dismissed. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers.- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain multinational executives and managers. An alien is described in this 
subparagraph if the alien, in the 3 years preceding the time of the alien's application for 
classification and admission into the United States under this subparagraph, has been 
employed for at least 1 year by a firm or corporation or other legal entity or an affiliate 
or subsidiary thereof and the alien seeks to enter the United States in order to continue to 
render services to the same employer or to a subsidiary or affiliate thereof in a capacity 
that is managerial or executive. 
A United States employer may file Form 1-140 to classify a beneficiary under section 203(b )(1 )(C) of 
the Act as a multinational executive or manager. The regulation at 8 C.F.R. § 204.5G)(5) states: 
No labor certification is required for this classification; however, the prospective 
employer in the United States must furnish a job offer in the form of a statement 
which indicates that the alien is to be employed in the United States in a managerial 
1 Some documents instead state the title as "general manager." 
Matter of R-1-, Inc. 
or executive capacity. Such letter must clearly describe the duties to be performed by 
the alien. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-
(i) directs the management of the organization or a maJor component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Section 10l(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines "managerial capacity": 
The term "managerial capacity" means an assignment within an organization in which 
the employee primarily-
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) or, if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or with 
respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 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. 
2 
(b)(6)
Matter of R-1-, Inc. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take 
into account the reasonable 
needs of the organization, in light of the overall purpose and stage of 
development ofthe organization. Section 101(a)(44)(C) of the Act. 
II. ISSUE ON APPEAL 
The sole ground for denial is the Director's finding that the Petitioner has not shown that the 
Beneficiary qualifies for classification as an executive. 
A. Facts 
The Petitioner filed Form 1-140 on September 9, 2014. On the petition form, the Petitioner indicated 
that it had one employee in the United States. The record demonstrates that this one employee is the 
Beneficiary. 
The Petitioner submitted a letter, dated August 18, 2014, stating that the "[p ]arent company is 
engaged in manufacturing and export of high quality home textile products" such as 
and that the purpose of the petitioning entity is to import 
those goods for sale in the United States. Regarding the Beneficiary's position with the company, 
the Petitioner stated that he "is employed in an Executive capacity and is responsible for the 
following duties": 
• Directing the management of the U.S. Company which will market the products of 
the foreign entity in the U.S. 
• Oversee subordinate managers, supervisors and employees engaged in market 
research 
• Negotiate contracts with U.S. clients 
• Establish 
consignment relationships and negotiate prices 
• Support the sales team with executive level presentations 
• Provide leadership 
• Hire additional personnel as needed to achieve the goals of the U.S. entity 
• Ensure resources are in place to achieve the financial goals of the business 
• Analyze factors driving profitability 
• Analyze market trends and competitors with the goals of achieving competitive 
positioning of the company's products in the U.S. market 
• Formulating plans and making decisions regarding sales plans, marketing strategies 
and other initiatives 
• Solving problems in the area of customer care and distribution and coaching sales 
employees, prepare sales and profit forecasts, attending trade shows in order to 
promote the products of the company. 
The Director issued a request for evidence on February 5, 2015, stating: 
3 
(b)(6)
Matter of R-1-, Inc. 
The petitioner's letter states that one of the beneficiary's job duties is to oversee 
subordinate managers, supervisors and employees engaged in market research. 
However, the 1-140 shows that the petitioner employ[s] only one worker. It is unclear 
how the beneficiary can primarily perform the job duties of an executive without 
employees to perform the day-to-day duties of the petitioner. 
The Director requested evidence relating to each of the Petitioner's employees, and/or evidence of 
the Petitioner 's use of contract labor. The Director also stated: "If the beneficiary does not 
supervise other employees, specify what essential function within the organization he will manage." 
In response, the Petitioner submitted a letter dated February 25, 2015. The Petitioner stated that the 
company uses four contractors: 
• "for transporting goods from India to USA "; 
• "for customs clearing and issue of the delivery 
order": 
• "for storing goods in the warehouse, and 
making deliveries to the customers"; and 
• "for sales purposes." 
To document its use of the above contractors, the Petitioner submitted copies of agreements with 
and and copies of checks and IRS Forms 1 099-MISC, Miscellaneous Income, issued to 
, and 
The Petitioner provided a new list of job duties, with approximate percentages of the time the 
Beneficiary devotes to each of his duties: 
• Analyze the market and target the prospective buyers. . 
. . 15% 
• [T]he beneficiary consigns sample products . 
. . to the prospective 10% 
buyers . 
. . by either personal delivery or using other methods of 
shipment. 
• When the beneficiary receives the purchase order from the customers, 10% 
he coordinates with [the foreign parent company] to produce the order 
received .... 
• [P]ursue the goods when they are shipped and en-route for delivery to 10% 
the United States .... 
• When the goods arrive in the United States, the beneficiary 5% 
coordinates with d/b/a to 
track the location of the goods. 
• [C]onfirm that the duty of the goods is duly paid. . . . 5% 
• The beneficiary prepares a master packing list and advance shipping 1 0% 
notice before handing the good to 
4 
(b)(6)
Matter of R-I-, Inc. 
The beneficiary also coordinates with 
to pick up the goods and stock them in the warehouse according to the 
master packing list. 
• [P]repare a submission sheet containing the details of the goods and 10% 
deliver it to the customers. In doing so, the beneficiary also manages 
and controls a sales representative for 
delivering the submission sheet to the customer. ... 
• [T]he beneficiary supervises the delivery of the goods to the customer 5% 
from the warehouse .... 
• Upon issuance of the proof of delivery, the beneficiary prepares an 10% 
invoice to be sent to the customer for the payment of the goods. 
• [T]he beneficiary monitors and reports on production activities, costs, 10% 
performance, etc. This also includes preparing and maintaining profit 
and loss sheet. 
The Director denied the petition on May 5, 2015, concluding that the Petitioner had not established 
that the Beneficiary would serve in a qualifying managerial or executive capacity. The Director 
stated: "Without sales people and an administrative staff, the beneficiary must perform a wide range 
of daily functions associated with running a business that are not of an executive nature." 
On appeal, the Petitioner asserts that "the beneficiary is acting as a 'function manager' ... [and] also 
directing the work of outside agencies."' The Petitioner asserts that the number of employees should 
not, by itself, determine the outcome of the petition. The Petitioner states that the Beneficiary's 
supervision of contractors is sufficient to qualify the Beneficiary for the classification sought. 
B. Analysis 
Upon review, and for the reasons stated below, we find that the Petitioner did not establish that it 
seeks to employ the Beneficiary in a qualifying managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, we review the 
totality of the record, starting first with the description of the beneficiary's proposed job duties with 
the petitioning entity. See 8 C.F.R. § 204.5(j)(5). Published case law has determined that the duties 
themselves will reveal the true nature of the beneficiary ' s employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). We then 
consider the beneficiary's job description in the context of the petitioner's organizational structure, 
the duties of the beneficiary's subordinates, and any other relevant factors that may contribute to a 
comprehensive understanding of the beneficiary's actual duties and role within the petitioning entity. 
In addition, while performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify the beneficiary as long as those tasks are not the majority of the 
beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary IS 
"primarily" performing managerial or executive duties. See Section 101(a)(44) of the Act. 
Matter of R-1-, Inc. 
The Director did not deny the petition only because the Beneficiary is the Petitioner's sole employee. 
The Director acknowledged that "the beneficiary has three contractors to receive and deliver the 
petitioner's shipments," and did not question the Beneficiary's authority to direct the actions of those 
contractors. The Director's key finding is that "the beneficiary's job duties show that he must 
perform many non-executive duties, such as receiving purchase orders, tracking shipments and 
preparing packing lists, submission sheets, and invoices." This finding derives not from the 
Petitioner's staffing, but from the list of duties provided by the Petitioner. The Petitioner, on appeal, 
has not addressed this element of the denial. 
When examining the executive or managerial capacity of the beneficiary, we will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The definitions of executive 
and managerial capacity have two parts. First, the petitioner must show that the beneficiary 
performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 
1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
The initial list of the Beneficiary's duties and the percentage breakdown submitted later are not 
consistent with one another; several duties appear on one list but not on the other. For example, only 
the first list stated that the Beneficiary would negotiate contracts and "oversee subordinate managers, 
supervisors and employees." Only the second list indicated that the Beneficiary would prepare 
invoices, profit and loss statements, and other documents. The second list's percentage breakdown of 
the Beneficiary's duties shows that the Beneficiary spends the majority of his time on non-qualifying 
functions such as delivering samples, tracking shipments, and preparing shipping documents. 
The Petitioner, on appeal, asserts that the Beneficiary need not supervise subordinate staff because 
"the beneficiary is acting as a 'function manager."' 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, 8 U.S.C. § 110l(a)(44)(A)(ii). The term "essential function" is not 
defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the 
essential nature of the function, and establish the proportion of the beneficiary's daily duties 
attributed to managing the essential function. See 8 C.F.R. § 204.5(j)(5). In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) ofthe Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Boyang, Ltd. v. INS, 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995) (citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988)). 
In this matter, the Petitioner has not provided evidence that the Beneficiary primarily manages an 
essential function. 
(b)(6)
Matter of R-1-, Inc. 
Furthermore, if the Petitioner chooses to represent the Beneficiary as both an executive and a 
manager, then the Petitioner must establish that the Beneficiary meets all of the statutory criteria for 
both executives and managers. Here, the Petitioner has not addressed any of the elements of the 
definition of a manager except the clause pertaining to function managers. Before the denial of the 
petition, the Petitioner had consistently described the Beneficiary as an executive rather than as a 
manager. 
We acknowledge the Petitioner's claim that the Beneficiary manages the business through directing 
and overseeing the actions of contractors. As the Director observed in the denial notice, the 
Petitioner established payments to and predating the filing of the petition 
in September 2014, but the Petitioner did not document any arrangement with until January 
2015, after the filing date. The Petitioner's sales commission agreement with has an effective 
date of January 1, 2015, and the record does not contain checks or other evidence of payments to 
in 2014. Therefore, the Director found that the 2015 contract with cannot establish 
eligibility at the time of filing, as required by 8 C.F .R. § 103 .2(b )(1 ). We conclude that the 
Beneficiary performed sales duties himself at the time of filing, because the Petitioner has not shown 
that it employed or contracted a sales staff at the time to relieve the Beneficiary from performing 
those duties. The Petitioner has acknowledged that the Beneficiary performed non-qualifying 
functions such as preparing invoices and delivering samples. The overall record indicates that the 
Beneficiary does not primarily perform the duties of an executive (as originally claimed) or a 
manager (as claimed on appeal). 
Accordingly, we find that the Petitioner did not provide reliable, probative evidence sufficient to 
establish that the Beneficiary will be employed in a qualifying managerial or executive capacity in 
the United States. For this reason, USCIS cannot approve this petition. 
III. BEYOND THE DECISION OF THE DIRECTOR 
Beyond the decision of the Director, the Petitioner has not provided sufficient evidence to establish 
its ability to pay the Beneficiary's proffered wage. As indicated at 8 C.F.R. § 204.5(g)(2), the 
Petitioner has the burden of establishing its ability to pay commencing with the date it files the Form 
I -140. In order to establish the ability to pay, the Petitioner must provide copies of its annual 
reports, federal tax returns, or audited financial statements for the relevant time period in question. 
In the present matter, the Form I-140 indicates that the Beneficiary will be paid $40,000. The record 
reflects that the Beneficiary was paid $35,040 in 2014, but does not include any evidence 
demonstrating the Petitioner's ability to pay the proffered wage from the priority date. For this 
additional reason, the petition cannot be approved. 
IV. CONCLUSION 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, 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 Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
Matter of R-1-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofR-1-, Inc., ID# 14873 (AAO Dec. 4, 2015)