dismissed EB-1C Case: Import/Export

(b)(6)
DATE: 
JUN 3 0 2015 
INRE: Petitioner: 
Beneficiary: 
n. 
FILE#: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
V. S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
u~s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
~ 
G):_Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. 1 The appeal will be dismissed. 
The petitioner is a California corporation that operates as an export, import, and distribution company. It 
seeks to employ the beneficiary in the United States as its CEO. Accordingly, the petitioner endeavors to 
classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or 
manager. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary was 
employed abroad, or would be employed in the United States, in a qualifying managerial or executive 
capacity. 
On appeal, the petitioner asserts that the applicable law was inappropriately applied and that the director's 
reasoning was inconsistent with the information and evidence it presented to establish the beneficiary's 
·eligibility for the benefit sought. The petitioner submits a brief and additional evidence in support of the 
appeal. 
I. The 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 who 
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. 
1 Upon our initial review of this matter, we found information at the website of the California Secretary of State which 
showed the petitioner's corporate status as "FfB Suspended." We subsequently issued a notice of derogatory 
information and intent to dismiss, dated April 27, 2015. The petitioner responded to our inquiry with evidence showing 
that the U.S. entity is active and in good standing with the State of California. Accordingly, we will make our 
determination regarding this petition based on the merits of the evidence before us. 
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The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. 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 or executive 
capacity. Such a statement 
must clearly describe the duties to be performed by the alien. 
Section 101(a)(44)(A) of the Act, 8 U.S. C.§ 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(b)(6)
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NON-PRECEDENT DECISION 
(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. 
II. Factual Background and Proc~dural History 
The record shows that the petition was filed on December 9, 2013. The petition was accompanied by a 
supporting statement, dated December 3, 2013, in which the petitioner indicated that it had a staff of five 
employees, including the beneficiary, at the time of filing. The statement contains a list of the job duties and 
responsibilities pertaining to the beneficiary's former employment abroad as well as a percentage breakdown 
applied to the beneficiary's assigned job duties and responsibilities in her proposed position as CEO of the 
petitioning entity. The petitioner also provided organizational charts depicting the beneficiary's respective 
positions with both entities as well as evidence in the form of tax, bank, and business documents. 
On June 10, 2014, the director issued a request for evidence (RFE), informing the petitioner that the record 
lacked sufficient evidence to establish that the beneficiary was employed abroad and would be employed in 
the United States in a qualifying managerial or executive capacity. Accordingly, the director instructed the 
petitioner to provide the foreign entity's organizational chart that corresponds with the beneficiary's period of 
employment abroad along with a definitive statement pertaining to the beneficiary's former position 
accompanied by the beneficiary's payroll summary as well as the names, job titles, brief job descriptions, 
educational credentials, and payroll summaries of the beneficiary's subordinates at her former position with 
the foreign entity. 
With regard to the beneficiary's proposed position with the U.S. entity, the director asked the petitioner to 
provide position descriptions, work schedules, and IRS Form W -2 statements and/or MISC Form 1099s for 
the beneficiary's superior and any subordinate staff. In response, the petitioner provided the requested 
evidence pertaining to both of the beneficiary's positions. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to establish 
eligibility and therefore denied the petition on September 15, 2014. The director determined that the 
petitioner failed to establish that the beneficiary was employed abroad in a qualifying capacity, focusing the 
discussion of the beneficiary's foreign employment almost entirely on the beneficiary's job description. 
Namely, the director concluded that the job description the petitioner submitted was overly vague and that the 
petitioner failed to disclose the type of business the foreign entity operated or the beneficiary's function within 
that business. 
The director similarly concluded that the pehtwner failed to establish that the beneficiary's proposed 
employment in the United States would be within a qualifying managerial or executive capacity, finding that 
the petitioner's support staff at the time of filing was insufficient to relieve the beneficiary from having to 
allocate her time primarily to performing non-qualifying operational tasks. 
(b)(6)
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On appeal, the petitioner submits a brief, disputing the director's findings with regard to the beneficiary's 
former and proposed employment. With regard to the beneficiary's employment abroad, the petitioner asserts 
that the beneficiary was employed in an executive capacity. The petitioner emphasizes the foreign entity's 
complex organizational hierarchy, which includes department managers, and states that this staff relieved the 
beneficiary from having to allocate her time primari~y to non-executive tasks. The petitioner contends that 
the beneficiary's proposed employment in the United States is also within an executive capacity. The 
petitioner focuses on the beneficiary's discretionary authority in choosing business projects, approving bids, 
and overseeing project implementation. 
Upon review, and for the reasons stated below, we find that the petitioner has submitted sufficient evidence to 
overcome the director's denial with regard to the issue of the beneficiary's employment abroad. 
Notwithstanding this finding, we conclude that the petitioner has not established that the beneficiary's proposed 
position in the United States can is in a qualifying managerial or executive capacity. Both findings are fully 
addressed in the discussion below. 
III. Issues on Appeal 
As indicated above, the two primary issues to be addressed in this proceeding are whether the petitioner 
provided sufficient evidence to establish that the beneficiary was employed abroad and would be employed 
by the petitioning entity in a qualifying managerial or executive capacity. 
A. Qualifying Employment Abroad 
Based on our review of the totality of the record, we find that the petitioner provided sufficient evidence to 
establish that the beneficiary was employed abroad in a qualifying executive capacity. 
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, 8 U.S.C. § 1101(a)(44)(B). 
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 the beneficiary to direct and 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. The 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." !d. 
The record includes an organizational chart and supporting payroll records, which show a sufficiently 
complex organization comprised of four department managers, who reported to the beneficiary, and their 
subordinates. The petitioner provided evidence that the beneficiary's position was placed at the top-most tier 
of the organization, and that she was responsible for overseeing and directing the management of all four 
departments. Therefore, while the director was correct in his consideration of the beneficiary's foreign job 
(b)(6)
NON-PRECEDENT DECISION 
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description, this element must be assessed in light of a comprehensive analysis of the other relevant factors 
and supporting evidence . In the present matter, the director failed to fully consider the foreign entity's 
staffing and organizational structure, which shows the beneficiary's position with respect to others and 
indicates that the beneficiary operated at the foreign entity's highest management level. In light of these 
compelling factors and the ample supporting evidence that the petitioner provided, we find that the petitioner 
established that the beneficiary was more likely than not employed abroad in a qualifying executive capacity. 
On the basis of this finding, we hereby withdraw the director's conclusion pertaining to the beneficiary 's 
employment abroad. 
B. Qualifying Employment in the United States 
Notwithstanding our determination pertaining to the beneficiary's employment abroad, we find that the 
petitioner has not established that it will employ the beneficiary in a qualifying managerial or executive 
capacity. 
Among the key factors to be considered is the beneficiary's description of job duties in her proposed position 
with the petitioning entity . See 8 C.P.R. § 204.5G)(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), aff'd, 905 F.2d 41 (2d. Cir. 1990). We then consider the beneficiary's job 
description in the context of the petitioner's organizational structure and staffing levels as well as 
subordinates' job duties and any other relevant factors that may contribute to a comprehensive understanding 
of the beneficiary's actual job duties and role within the petitioning entity. 
Turning first to the beneficiary's job description, we find that the information provided is overly vague and, 
when considered in light of the petitioner's limited organizational structure, fails to establish that the 
petitioner, at the time of filing, had the subordinate staff to relieve the beneficiary from having to allocate her 
time primarily to the performance of non-managerial and non-executive tasks. Based on the job description 
provided in the petitioner's December 3, 2013 supporting statement, the beneficiary would allocate 25% of 
her time to setting up, and reviewing the petitioner's corporate policy, operation procedures, and business 
goals, directing the petitioner 's departments, recruiting personnel, and managing business development. The 
petitioner provided no insight as to the specific daily tasks that reflect the beneficiary's corporate policy and 
goal-setting role. The petitioner also failed to specify what actual tasks the beneficiary would perform in her 
role as manager of the petitioner's business development activities , as such, it is unclear whether the tasks 
involved would be of a qualifying nature. Similarly , the petitioner failed to establish that recruiting "qualified 
personnel," a task that is generally attributed to human resources personnel, is a qualifying managerial or 
executive task. The beneficiary's job description includes other job duties that have not been established as 
being qualifying managerial or executive tasks. Namely, the petitioner indicated that the beneficiary's 
position would include promoting the U.S. business and new products into the U.S. market, building 
relationships with distributors and suppliers, visiting distributors and customers, negotiating contracts, and 
providing customer support. 
Although the beneficiary 's job description includes a percentage breakdown , the petitioner assigned time 
allocations to groups of duties and responsibilities, rather than to individual tasks and thus fails to effectively 
(b)(6)
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establish what percentage of time the beneficiary would allocate to each of the above listed non-qualifying 
tasks. Whether the beneficiary is a managerial or · executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's 
duties would be managerial functions and what proportion would be non-managerial. The petitioner lists the 
beneficiary's duties as including both managerial and administrative or operational tasks, but fails to quantify 
the time the beneficiary spends on them. This failure of documentation is important because several of the 
beneficiary's daily tasks, such as those listed above, do not fall directly under traditional managerial duties as 
defined in the statute. For this reason, we cannot determine whether the beneficiary is primarily performing 
the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
Furthermore, after considering the petitioner's staffing and organizational hierarchy, it is unclear how the 
beneficiary would be able to meet a number of her assigned job responsibilities having to directly perform the 
underlying operational tasks. For instance , in claiming that the beneficiary would be in charge of managing 
business development, the underlying implication is that the petitioner is staffed with someone who would 
actually carry out the business development function. However, based on the organizational chart that 
reflects the petitioner 's hierarchy at the time of filing and the employee job descriptions that were provided in 
response to the RFE, it is unclear who, other than the beneficiary would be charged with that underlying 
business development function: Similarly, the petitioner's claim that the beneficiary's proposed position 
would involve planning and directing marketing activities is not supported by the evidence of record. 
Although the employee job descriptions indicate that the petitioner's sales manager assumes a role with 
respect to marketing the petitioner 's products and services, this position 's role is also described as 
supervisory, thus failing to establish who actually performs the underlying marketing-related job duties if 
both the beneficiary and the sales manager, who is subordinate to the beneficiary, would assume managerial 
or supervisory roles with respect to the marketing function. While the petitioner's original organizational 
chart included a marketing position, the petitioner's more recently submitted organizational chart entirely 
omits this position and depicts the marketing employee from the earlier chart in the position of assistant sales 
manager. In other words, even ifthe marketing employee's job duties were assumed to be consistent with his 
position title, it is unclear who would carry out the marketing duties within the petitioner's current staffing 
scheme, given that there is no longer a marketing position within the hierarchy. 
In addition , a comparison of the organizational chart the petitioner submitted originally in support of the 
petition with the chart that the petitioner submitted in response to the RFE indicates a need for further 
clarification regarding the organizational structure the petitioner depicted in the original chart. Namely, a 
review of the first chart shows in charge of the finance department with an accounting 
service/CPA firm within his/her managerial purview. However, a review of the chart the petitioner submitted 
with its RFE response depicts in the assistant sales position, which is subordinate to the assistant 
sales manager position. In other words, it is unclear why an employee, whose original position within the 
petitioner's organization was that of a finance department manager, would assume a position at the bottom 
tier of the same organization. The petitioner must submit evidence that substantiates the beneficiary's duties 
and the duties of her subordinates such that the job duties correspond to the employees' respective placements 
in an organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not 
(b)(6)
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probative and will not establish that an organization is sufficiently complex to support an executive or 
manager position. An individual whose primary duties are those of a first-line supervisor will not be 
considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the 
employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
Further, given the lack of sufficient evidence to support the facts presented m the originally submitted 
organizational chart, it is unclear whether the petitioner in fact had a qualified employee to manage the 
finance department at the time of filing. If not, then the record raises questions as to the nature and scope of 
the beneficiary's duti es related to the finance department when the petition was filed. That said, we find that 
the record lacks evidence to establish that the petitioner had independent sales agents to assist in the sale of 
the petitioner's products and services at the time of filing. Despite the director's request that the petitioner 
provide IRS Form W -2s and IRS Form MISC 1099 for any employees and contr act workers, respectively, the 
petitioner provided only the W-2s, which were issued only to direct company employees. The petitioner 
failed to provide evidence to support the claim that it had hired independent sales agents to assist the sales 
manager as of the date of filing. Similarly, the petitioner failed to provide any evidence to show that it 
retained the services of an accounting/CPA firm to meet its bookkeeping and accounting needs, and, although 
it indicates that it is an import-export company, it has not specifically identified who coordinates shipping, 
import and export activities. Failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Furthermore, given the petitioner's failure to provide relevant evidence pertaining to its organizational 
hierarchy and in light of the petitioner's limited staffing, it is reasonable to conclude that the beneficiary, at 
the time of filing, was called upon to carry out various operational tasks that are required for the petitioner to 
continue its daily functions. While no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petition er must establish that the non-qualifying tasks the beneficiary 
would perform are only incidental to the proposed position. An employee who "primarily" performs the tasks 
necessary to produc e 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) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593 , 604 (Comm. 1988). 
On appeal, the petitioner asserts that the director focused entirely on the size of the petitioning entity without 
considering the petitioner's stage of development and the reasonable needs of the organization . See 
§ 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for USCIS to consider the 
size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, 
e.g. 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). Additionally, while the petitioner is correct in pointing out that USCIS must take into 
account the petitioner's reasonable needs when considering staffing size, those needs do not serve to override 
the petitioner's legal burden of having to establish that the beneficiary would primarily perform duties of a 
qualifying managerial or executive nature. The director's discussion of the petitioner's staffing is appropriate 
(b)(6)
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and suggests that the director had valid concerns regarding the petitioner's ability to relieve the beneficiary 
from having to primarily perform non-qualifying tasks. 
On appeal, and in response to the RFE, the petitioner has emphasized the beneficiary's responsibility for 
international bidding projects, noting that the company achieved over $3 million in sales revenue in 2013 and 
signed a sales contract valued at over $5.1 million in 2013. While these figures are impressive, the petitioner 
did not specifically mention bidding activities in its description of the beneficiary's U.S. duties or identify a 
"project bidding team" on its initial organizational chart. The beneficiary's authority to negotiate and sign off 
on major contracts is indicative of her senior position within the organization; however, the petitioner has not 
submitted sufficient evidence of how the non-managerial, day-to-day tasks of the petitioner's import-export 
company are allocated among the four-person subordinate staff that was in place at the time of filing, nor has 
it adequately documented its use of contractors as of the date the petition was filed. 
Therefore, given the beneficiary's deficient job description and the insufficient evidence showing that the 
petitioning entity was adequately staffed at the time of filing, we are unable to conclude that the petitioner had 
a reasonable need for the beneficiary to perform tasks that are primarily in a managerial or executive capacity. 
On the basis of these findings, we conclude that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. Accordingly, the appeal will 
be dismissed. 
IV. Conclusion 
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, that burden has not been met. 
ORDER: The appeal is dismissed.