dismissed EB-1C Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 13, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a human resources and administrative support services provider, seeks to permanently 
employ the Beneficiary as its president under the first preference immigrant classification for 
multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b )(1 )(C), 8 U .S.C. § 1153(b )(1 )(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: (1) it has the ability to pay the Beneficiary's proffered wage; (2) it has a 
qualifying relationship with the Beneficiary's foreign employer; and (3) it will employ the 
Beneficiary in an executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director's request for 
evidence (RFE) did not adequately raise the concerns addressed in the denial decision. The 
Petitioner maintains that, with the additional evidence, it has met all eligibility requirements for the 
requested classification. 
Upon de nova review, we will withdraw the Director's determination regarding the Petitioner's 
ability to pay and its qualifying relationship with the Beneficiary's foreign employer. 1 However, the 
Petitioner has not established that the Beneficiary would be employed in an executive capacity. 
According! y, we will dismiss the appeal. 
1 With respect to the Petitioner's ability to pay the Beneficiary's wage, the Petitioner has now submitted a copy of its 
2016 corporate tax return which demonstrates that it had sufficient net current assets to pay the proffered wage. The 
Petitioner has now satisfied the ability to pay requirement at 8 C.F.R. § 204.5(j)(3). 
The Director's determination regarding the Petitioner's qualifying relationship with the foreign entity was hased on 
inconsistent ownership information provided in its 2015 federal income tax return. The Petitioner has submitted an 
explanation for the error and copies of amended tax returns on appeal. When considered with the other evidence in the 
record, including a stock purchase agreement, minutes of shareholder meetings, and stock certificates, the Petitioner has 
now established by a preponderance of the evidence that it has an affiliate relationship with the Beneficiary's foreign 
employer. See 8 C.F.R. § 204.5(j)(2) (defining "affiliate"). 
Matter of E- Corp. 
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 sole issue to be addressed is whether the Petitioner established that it will employ the 
Beneficiary in an executive capacity in the United States. The Petitioner does not claim that the 
Beneficiary will be employed in a managerial capacity. 
In the denial decision, the Director reviewed the Petitioner's staffing as evidenced by its state 
quarterly wage reports for 2016, and noted that the Beneficiary, who is authorized to work for the 
Petitioner in E-2 nonimmigrant treaty investor status, has been earning lower wages than many of 
the company's lower-level workers. The Director found that the Beneficiary's salary "undermines 
any claims to executive duties." The Director, however, did not go on to discuss other evidence in 
the record relevant to the Beneficiary's proposed employment capacity. When denying a petition, a 
director has an affirmative duty to explain the specific reasons for the denial; this duty includes 
informing a petitioner why the evidence did not to satisfy its burden of proof pursuant to section 291 
of the Act. 8 C.F.R. § 103.3(a)(l)(i). We agree with the Director's ultimate conclusion that the 
Petitioner did not meet its burden to establish that the Beneficiary will be employed in an executive 
capacity, and will fully address all relevant evidence below. 
"Executive capacity" is defined as 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, 8 U.S.C. § 1101(a)(44)(B). 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be performed by the Beneficiary. Beyond the required description of the job 
duties, we review the totality of the evidence when examining a beneficiary's claimed executive 
capacity, including the company's organizational structure, the duties of a beneficiary's subordinate 
employees, the presence of other employees to relieve a beneficiary from performing operational 
2 
Matter of E- Corp. 
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, our analysis of this issue will focus 
on the nature of the Petitioner's business operations, and its staffing levels and reporting structure, as 
well as on the Beneficiary's duties. 
A. Duties 
Based on the 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 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See, e.g., Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
The Petitioner stated that the Beneficiary, as president, will "direct and control the pos1t1ve 
development" of the company. The Petitioner submitted a position description indicating that he 
would allocate a total of 65% of his time to supervising a professional development manager, an 
academic director, and an administrative manager. However, instead of listing the Beneficiary's 
specific supervisory tasks and how they qualify as executive in nature, the job description included a 
summary of duties for each subordinate without describing the Beneficiary's own duties. Therefore, 
these tasks, which account for more than half of the Beneficiary's time, were not defined and we 
cannot determine what he will primarily do on a day-to-day basis. Moreover, as discussed further 
below, the Petitioner has not established its employment of these three subordinate employees. 
The Petitioner indicated that the Beneficiary's remaining time would be allocated to "guiding and 
direction" (20%), presenting monthly reports to the board of directors (5%), and "participating in the 
redirecting and development of new standards policies" (10%). The Petitioner described these 
responsibilities in broad terms with little explanation of the Beneficiary's actual duties within the 
context of the Petitioner's human resources services business. For example, the Petitioner stated that 
the Beneficiary's responsibility for "guiding and direction" will include "communicating values, 
strategies and objectives," developing "strategic plans," recommending and accomplishing 
objectives, and "establishing policies and practices." Many of these duties simply paraphrase the 
statutory definition of executive capacity, rather than describing what the Beneficiary will do as part 
of his regular daily routine. Conclusory assertions regarding the Beneficiary's employment capacity 
are not sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
Petitioner's burden of proof. 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); Avyr Assocs., Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
The fact that the Beneficiary will direct a business as its senior employee does not necessarily 
establish eligibility for classification as a multinational executive. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" executive in nature. Section 
101(A)(44) of the Act. Even though the Beneficiary may exercise discretion over the Petitioner's 
3 
.
Matter of E- Corp. 
operations and possess authority with respect to discretionary decision-making, the position 
description alone is insufficient to establish that his employment will be in an executive capacity. 
Here , as discussed further below, the Petitioner did not sufficiently explain the nature of its business 
operations or document its claimed staffing levels and management structure. As a result , we are 
unable to determine what types of duties the Beneficiary would primarily perform or whether the 
company would reasonably support the Beneficiary in an executive capacity as claimed. 
B. The Petitioner's Business and Staffing Levels 
The Petitioner stated that it provides "[h]uman resources and business administrative support to 
daycares," and claimed to have 23 employees at the time of filing in March 2017. Specifically, the 
Petitioner explained that it invested in a daycare center called by 
acquiring 10% of _ in February 2016. The Petitioner further stated that it 
"decided to lend all its services exclusively to this daycare and [the Petitioner's] goals became the 
same as ." It described these services as "an integral administrative service that goes from 
resource management, administrative and financial reports to hiring and training personnel." 
The Petitioner 's business plan explains that the company had previously provided similar services to 
other day cares, but that it changed its service contracts and would provide exclusive services to 
in 2017. Specifically , it stated "[a]ll the personnel from [the Petitioner] including 
managers and directors will now exclusively work with 
The Petitioner submitted an organizational chart which depicts the Beneficiary as president with 
three direct subordinates - an administrative manager, a director, and a professional development 
employee. The chart also included 19 lower-level staff, including lead and assistant teachers , infant 
caregivers, after care staff , and "floaters. " 
In addition, the Petitioner provided its most recent Florida quarterly wage report, for the fourth 
quarter of 2016, which listed 22 employees. However, the information provided in this report does 
not match the information provided on the organizational chart. The only employees named on the 
organizational chart who also appear in the quarterly wage report are the Beneficiary and the 
employee identified on the Petitioner ' s chart as "professional development." 2 The Petitioner did not 
document its employment of the 22 other individuals named on the organizational chart or provide 
an explanation for the apparent discrepancy. Further, it is uncle ar what positions were held by the 
individuals the Petitioner paid in 2016 .or where they worked. The lack of corroborating evidence to 
support the Petitioner ' s organizational chart and staffing levels at the time of filing prevents us from 
fully analyzing the Beneficiary's claimed executive role with the company . 
In a request for evidence (RFE) , the Director asked the Petitioner to provide a copy of its agreement 
with Kids Town day care and to explain if the Petitioner's current employees would become 
2 The Petitioner provided evidence that this individual own s a 45% interest in 
4 
.
Matter of E- Corp. 
employees of 
in the future. 
or if the employees would become the Petitioner 's employees 
In response to the RFE, the Petitioner explained that it "has employees who work at and 
stated that also pays two employees directly. The Petitioner provided a copy of its 
"Human Resources Management Agreement" with _______ which specifies the 
Petitioner's specific duties and responsibilities as follows: 
• To supply the staff for the daycare and manage and supervise the administration 
aspect of the Human Resources area in a manner consistent with industry 
standards. 
• [The Petitioner] will be in charge of recruiting, selecting and hiring of personnel 
always under request. establishes parameters , 
requirements and has ultimate decision to accept candidates hired by manager. 
• [The Petitioner] will facilitate training and testing and provide other Human 
Resources based on needs. 
• [The Petitioner] will process payroll including: calculation, preparation and 
distribution of payroll checks , provide direct deposit , reporting , withholding, and 
remitting payment of payroll taxes, process and distribute all W-2s and 1099s, 
administer all wage garnishments and child support deductions, process, certified 
payrolls, prepare employer reports, and itemized invoicing. 
The terms of the agreement indicate that the Petitioner will receive no compensation for the 
performance of its obligations, which raises questions regarding the source of the company's 
revenue. Based on its 2016 bank statements, the Petitioner's only monthly expenses were payroll 
and insurance. The bank statements show that the Petitioner made bi-monthly payroll payments and 
received bi-monthly deposits from an unknown source(s) which were in approximately the same 
amount as its payroll withdrawals. 
The Petitioner also submitted a 2016 statement of revenues and expenses prepared by its accountant. 
This statement reports $561 ,359.33 in "sales from service." The Petitioner 's operating expenses 
include approximately $507,900.97 in salaries, $3,037 in payroll expenses, and approximately 
$41,500 in employment taxes. Its only other operating expenses are insurance ($12,825) and 
approximately $150 in miscellaneous expenses. It appears based on this evidence that the 
company's sole source of revenue was derived from funds it received as reimbursement for the 
payment of employee salaries and related payroll expenses. Although this evidence pre-dates the 
Petitioner ' s claimed exclusive agreement with ___ there is no indication that its business 
model had changed as of the date of filing. 
Specifically, there is nothing in the terms of the management agreement with that would 
give the Beneficiary authority to direct the day care center's day-to-day operations and management. 
Further, while the Petitioner established that it owns a 10 percent interest in the 
company's operating agreement does not appear to give the Petitioner or its employees authority to 
manage operations independently. Therefore, even if the Petitioner had documented 
5 
.
Matter of E- Corp. 
that it actually employs the workers named on its organizational chart, the record would not support 
a finding that the petitioning company acts as more than a payroll service provider for It 
appears that the persons named on the organizational chart may simply be employees 
who will now be paid by the Petitioner under the terms of the management agreement. The record 
contains little evidence regarding or its structure prior to the agreement. 
Therefore, a review of the Beneficiary's job description in light of the totality of the evidence does 
not provide additional insight into the nature of his actual day-to-day duties. As the Petitioner did 
not document its claimed employees and has no documented business activities beyond handling 
payroll services for another company in exchange for no compensation, it is unclear what the 
Beneficiary would actually do as company president. An individual will not be deemed an executive 
under the statute simply because he has an executive title or because he "directs" the enterprise as 
the senior employee. Here, the evidence of record does not sufficiently establish the nature of the 
Beneficiary ' s proposed position, nor does it support the Petitioner ' s claim that it would require the 
Beneficiary to perform primarily executive duties. 
III. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of E- Corp., ID#1445262 (AAO July 13, 2018)