dismissed EB-1C Case: Industrial Equipment Supply

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-G-&C-C-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR.I2,2018 
PETITION: FORM l-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner procures parts and supplies for its foreign affiliate, which sells industrial equipment. 
The Petitioner seeks to permanently employ the Beneficiary as its operations manager and chief 
operations officer (COO) 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. § ll53(b)(l)(C). This classification allows a U.S. employer to pem1anently 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 record did not 
establish, as required, that the Petitioner will employ the Beneficiary will be employed in the United 
States in a managerial or executive capacity. The Petitioner filed a motion to reopen and a motion to 
reconsider. The Director denied the joint motion. 
On appeal, the Petitioner submits job descriptions for the Beneficiary and others at the company. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling of the 
petition, has been employed outside the United States tor 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 afllliate. Section 203(b)(l)(C) of the Act. 
The Form l-140, Immigrant Petition lor Alien Worker, must include a statement !rom an authorized 
official or 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 tiling or 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 lor at least one year. See 8 C.F.R. § 204.5(j)(3). 
Mauer o/S-G-&C-C-. LLC 
II. DEFINITIONS 
"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 
10l(a)(44)(A) of the Act, 8 U.S.C. §I 10l(a)(44)(A). 
"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 
IOI(a)(44)(B) of the Act. 
Based on the statutory definitions of managerial and 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). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or 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. 
Ill. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not ,establish that it will employ the Beneficiary 111 a 
managerial or executive capacity. 
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 description of the job duties must clearly 
describe the duties to be pertonned by the Beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 204.50)(5). Beyond the required description of the 
job duties, U.S. Citizenship and Immigration Services (USCIS) examines 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 and its staffing levels. 
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A. Duties 
The Petitioner states that its foreign affiliate 1 provides products and services to various industries, 
and that the petitioning entity "serve[ s] as I) a center of logistics and 2) a commercial gathering spot 
from where to best show off their products and services to customers and visitors of a conglomerate 
of different markets." The Petitioner asserts that its "main objective and business goal ... is to 
provide the foreign company ... with all the necessary products to perform local oil industry related 
operations. 
The Petitioner stated that the Beneficiary is responsible for the following: 
• "[P]roviding strategic leadership for the company by working with the Board and 
other management to establish long-range goals, strategies, plans, and policies"; 
• "[C]reating and implementing plans, strategies and improvements aimed at 
compliance indicators established for the area of both operations and sales, within 
the functions is to establish partnerships with industry to supply you I 05 materials 
is required"; 
• "Prepar[ing] staff work schedules and assign[ing] specific duties"; 
• "Perform[ing] personnel functions such as selection, training, or evaluation"; 
• "Establish[ing] or implement[ing] departmental policies, goals, objectives, or 
procedures in conjunction with board members, organization ofticials, or staff 
members"; 
• "Pian[ning] or direct[ing] activities such as sales promotions that requtre 
coordination with other department managers"; 
• "Direct[ing] and coordinat[ing] activities of businesses or departments concerned 
with the production, pricing, sales, or distribution of products"; 
• "Purchas[ing] . materials, plan[ ning] inventory and ensur[ing] warehouse 
efficiency"; and 
• "Contribut[ing] towards the achievement of company's strategic and operational 
objectives." 
The Petitioner also stated that the Beneficiary has "autonomous control over all corporate 
matters in his purview and exercises wide latitude and discretionary decision-making" and 
will be "in charge of designing and implementing the overall short, mid and long-term 
operations plan of the Company as well as to ensure its proper implementation by the stall at 
all levels." 
1 The Petitioner calls the foreign company its parent, but the foreign company does not own the petitioning U.S. 
company. Rather, both companies have the same owners with roughly the same proportion of ownership, which makes 
them affiliates under 8 C.F.R. * 204.5U)(2). The Petitioner's president and chief executive officer (CEO) owns 70% of 
the company: the chief financial officer (CFO) and business developer owns the remaining 30%. 
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The Director denied the petition, stating that most of the Beneficiary's job description consists of 
general responsibilities without identifying specific tasks that the Beneficiary would perform in 
order to meet those responsibilities. The Director added that, where the description includes more 
details, those details reflect the duties and responsibilities of a first-line supervisor, "such as 
preparing staff work schedules and assigning speciflc duties." With respect to "personnel 
functions," the Director noted that the Petitioner has no human resources department. 
On 'motion, the Petitioner asserted that the listed duties correspond to parts of the statutory 
definitions of both managerial and executive capacity. Those duties, however, lack detail and do not 
appear to originate with the Petitioner. 
Furthermore, although the Petitioner claims that the Beneficiary has hiring authority, his 
subordinates are not employees of the petitioning company. Instead, the Petitioner has "leased" the 
employees from a procurement management company, owned by ot1icers of the petitioning entity 
and occupying the same office space. The Beneficiary was not a party to the employee leasing 
agreement. Instead, the agreemeni was between manager members of the two limited liability 
companies. The leasing agreement states: "Lessor shall have the sole authority to assign and/or 
remove employees." 
In the denial notice, the Director correctly observed that it cannot suffice simply to quote the 
statutory or regulatory definition of a manager or executive. 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 .. Lid. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
actual duties themselves will reveal the true nature of the employment. !d. 
In the same way that a petitioner cannot simply repeat the statutory definition, generic job 
descriptions copied from public reference works cannot suffice. The generic nature of the job 
description is clear hom references that are not applicable to the Beneficiary's position. For 
instance, the Petitioner is a limited liability company that has no board of directors and thus no 
"board members," and the Petitioner is a sales-oriented company that is not involved in "production" 
as specified in the job description. The description also referred to "warehouse efflciency" but the 
record does not identify any warehouse or warehouse workers. Five of the job elements appear, 
word for word, in the listing for "General and Operations Managers" in the O*NET database 
sponsored by the Department of Labor. See https:l/www.onetonline.org/link/details/11-I 021.00 (last 
visited Apr. 4, 20 18). The descriptions on O*NET provide a general idea about the nature of a given 
occupation; they do not however, describe the specific duties of one particular position. 
Counsel for the Petitioner listed the Beneficiary's weekly responsibilities: 
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Part of the daily activities, are checking (mainly on Monday) the opening of the oil 
and related markets to set goals and projects in the short, medium and long term. 
Tuesday meets with the other managers, to discuss each department's processes and 
presenting findings to stakeholders. Wednesday meeting with employees, discussion 
of cases of sale and purchase of products, setting and reviewing budgets and 
managing cost. Thursday contact with managers of other organizations to discuss 
needs in common. Overseeing inventory, distribution of goods, and coordinate with 
the person in charge of faults, for approval of replenishments. Friday, closing 
meeting with employees and managers. And analyze the activities during the week. 
The new information is not a generic, template-style job description like the one submitted earlier. 
Nevertheless, it does not establish eligibility. First, we note that the new schedule appears in a 
document signed only by counsel, with no indication that the Petitioner provided the information or 
endorsed its accuracy. Assertions of counsel do not constitute evidence. Malter o{ Ohaighena, 19 
l&N Dec. 533, 534 n.2 (BlA 1988) (citing Malter o{Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BlA 
1980)). Counsel's statements must be substantiated in the record with independent evidence, which 
may include aftidavits and declarations. · 
Also, the new description still lacks crucial details. For example, counsel asserted that the 
Beneficiary spends part of Thursday "[o]verseeing inventory, distribution of goods, and 
coordinat[ing] with the person in charge of faults." As noted above, it is not clear what inventory the 
Petitioner maintains or where it keeps it, or how the Petitioner distributes goods. Organizing 
shipments directly from a supplier to an overseas client would not involve any inventory 
maintenance by the Petitioner. Counsel did not explain "faults" or identify "the person in charge of' 
them. 
As another example, it cannot suffice to say that the Beneficiary meets weekly "with the other 
managers, to discuss each department's processes." As we will discuss further below, the Petitioner 
is minimally staffed with a simple structure; the only "department" other than the Beneficiary's own 
is concerned with finance and business development. To say that individuals from both departments 
discuss unidentified "processes" adds nothing of substance to the record. 
When the Director denied the petition tor a second time, the Director focused on staffing issues, to 
be discussed below. The Petitioner does, however, provide a new version of its list of 
responsibilities, annotated with additional details so that the job description is now three pages long. 
For example, the Petitioner expanded the first item as follows: 
• Prepare stafTwork schedules and assign specific duties 
a. Making a list of all employees and the duties they can perform 
b. Making a chart of the work days and the hours for each day 
c. Finding out what days/times each employee will not be able to work for the period 
being scheduled 
d. Letting employees fill in the hours that work best for them 
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c. Filling in the remaining hours with the names of employees that are available during 
those times 
f. Asking employees to review the schedule to make sure there are no conflicts 
g. Posting the schedule lor everyone to see. 
This step-by-step dissection of the employee scheduling process does not substantially enhance the 
record. It bears mentioning that the Beneficiary has only two subordinates, each with a full-time 
position and a different job title. The above description, however, would make more sense in the 
context of a larger number of part-time or shift work employees with overlapping duties that change 
from day to day. 
The item relating to "personnel functions" is mostly a· step-by-step review of the hiring process, 
while the item regarding· "department policies" consists mostly of making different types of lists. 
The item "Purchases materials, plan inventory, and· ensure warehouse efficiency" now has 15 
subsections, none of which mention warehouses. The only mention of inventory is "Working with 
Procurement Manager to manage inventory requirements," which says little more than "plan 
inventory" docs. 
In sum, the job description submitted on appeal is longer than the earlier version, but it adds little 
new, veriliable inlormation to the record. 
The Petitioner has not shown that the Beneliciary's duties are primarily those of a manager or 
executive. 
B. Stafling 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a benefiCiary's subordinate employees, the presence of other 
employees to relieve a beneliciary from perlorming 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. 
If stafling levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. See section I 0 I (a)(44)(C) 
ofthc Act. 
The statutory delinition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section IOI(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. The statute plainly states that a "tirst line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
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employ ees supervised arc professional." Section 101 (a)(44)(A)(iv) of the Act; 8 C.F.R. 
§ 204 .5U)( 4)( i). If a beneficiary directly superv ises othe r employee s, the beneticiary must also have 
the authority to hire and tire those emp loyees,,or recomme nd those actions, and take other person nel 
actions. 8 C.F.R. § 204.5(j)(2). 
The Petiti oner's organizati ona l char t showed the following structure: 
Mater ials Scienti st 
Ope ration s Manager /COO 
[the Bcneticiary.J 
President/CE O 
l Purchase Anal vst 
Proc ureme nt ~anagcr 
Executi ve Assistant 
CFO /Business Developer 
l Financing Ana lyst 
As noted previously, not all o f the listed personn el a r ~ directl y e mployed by the Petiti oner. Some, 
including both of the Benefic iary's named sub ordin ates, are leased from the affi liated manag emen t 
procurem ent compa ny that share d the Petition er's oflke space at the time of filing . 
Letter s from seve ral suppli ers indicate that the Petitioner is their excl usive representat ive for 
marketing and distribution of their products "whose des tina tion is a ny territory/company in Latin 
Ameri ca and the Caribbean , ass isted/served by or 
ts While the se letters refer to represe ntation, 
"marketin g and trade," and "co mmercializati on and distributi on," the Petitioner's organ izational 
chart does not show any staff dedicated to these functions. 
Invo ices show that the Peti tioner has billed for sales ranging up to the high six figu res, but a floor 
plan of the Petitioner's leased business space (shared with the emp loyee leasing company) doe s not 
show warehou se or storage space, and the Petitioner's organ izational chart shows no 
shipping/receiving department. Because the Petitio ner does not manufac ture the produc ts, and has 
no evide nt infrastructure to deliver or install them, it appears to operate mainl y as a sales offi ce, 
taking orders on behalf of the compa nies with which it has representati on agreement s. 
A pri ntout from the Petitioner 's website indicates that the Petitioner offers Consultancy and 
"complete preparation and train ing of the personnel which [sic] go ing to appl y o r insta ll our 
product s." T he reco rd does not say who provid es the consultancy or trainin g. 
The Director co nclu!=lcd that the Petitioner had not show n that the Ben eficiary over sees manage rial, 
supervi sory, or professional empl oyees. Leav ing asi de the employee leasing agree ment, under 
which neither of the Beneticia ry' s s ubordi nates is techn icall y the Petitione r's "employee ," the record 
supports the Director's findin g. 
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The Petitioner's motions to reopen and to reconsider focused on the Beneficiary more than his 
subordinates, except that it introduced more evidence to document the circumstances of their 
employment. (The Director initially disputed the sufficiency of that evidence, but did not repeal that 
finding in the second denial notice and we need not explore it here.) 
In the second decision, the Director repeated the conclusion that "the record lacked sufticienl 
evidence indicating that the beneficiary's direct subordinates are professional, supervisory or 
managerial in nature'' The Director found "the petition~r does not have personnel available to 
relieve the beneficiary from having to focus his time primarily on the performance of non-qualifying 
operational tasks'' We agree with these findings. 
The procurement manager's stated duties include "Negotiate with external vendors," "Approve the 
ordering or necessary goods and services," and "Finalize details of orders and deliveries'' The 
purchase analyst has the authority to "Prepare and purchase requisitions and purchase orders" and 
"Maintain records of goods ordered and received'' On appeal, the Petitioner repeats the purchase 
analyst's job description without change, and expands the procurement manager's job description by 
adding sub-elements within each previously claimed item, as the Petitioner did with the 
Beneficiary's own job description. 
In the first denial notice, the Director noted that the procurement manager "does not supervise any 
employees," and that "the petitioner's organizational chart does not reference sales and marketing 
personnel'' The Director concluded that the Petitioner had not shown "that the beneficiary will 
primarily supervise and control the work of managerial, supervisory or professional employees." 
The respective job descriptions indicate that the purchase analyst and procurement manager both 
report directly to the Beneficiary; neither supervises the other. Because neither the purchase analyst 
nor the procurement manager has any subordinates, they are not supervisors. Notwithstanding her 
managerial title, the procurement manager appears to be performing, rather than managing, the 
company's procurement functions; the Petitioner has not identified any other workers who perform 
those tasks in her place. Therefore, she does not manage the procurement function. 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor 2 
The Beneficiary's subordinates both hold postsecondary degrees, but the Petitioner has not 
established that they are required for, or relevant to, the positions held. The purchase analyst holds a 
civil engineering diploma: prior positions on his resume involve architectural and computer 
2 Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate 
degree or its roreign equivalent is the minimum requirement for entry into the occupation'"). Section I 0 I (a)(32) of the 
Act states that "[t]he term profession shall include but not be limited to architects, engineers. lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.'' 
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engineering. The procurement manager's degree is in international studies. The Petitioner has not 
established that the subordinate positions are professional. 
Aside li·01n the question of whether the subordinates are professionals, supervisors, or managers, the 
Petitioner also must demonstrate that the Beneliciary will primarily supervise and control their work. 
The Petitioner has not shown that the 13eneticiary's authority over two leased employees constitutes 
a primary responsibility. 
The Petitioner has not claimed that the Beneficiary will be a function manager, or articulated a 
specitic function that the Beneliciary will manage. The term "function manager" applies generally 
when a beneliciary 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 
IOI(a)(44)(A)(ii). of the Act. If a petitioner claims that a beneficiary will manage an essential 
function, it must clearly describe the duties to be performed in managing the essential function. In 
addition, the petitioner must demonstrate that: 
(I) the function is a clearly delined activity; (2) the function is "essential," i.e., core 
to the organization; (3) the bencticiary will primarily manage, as opposed to perform, 
the function; ( 4) the beneticiary will act at a senior level within the organizational 
hierarchy or with respect to the ti.mction managed; and (5) the beneficiary will 
exercise discretion over the function's day-to-day operations. 
Maller of' C-Ine., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the Petitioner has 
not described or provided evidence that the Beneficiary manages an essential function. 
The statutory delinition of the term "executive capacity" focuses on a person's elevated posrtron 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Under the statute, a beneticiary 
must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the delinition, there must be a subordinate level of management for the 
beneficiary to direct, and a beneliciary must primarily focus on the broad goals and policies of the 
organization rather than the day-to-day operations of the enterprise. A beneficiary must also 
exercise "wide latitude in discretionary decision making" and receive only "general supervision or 
direction trom higher level executives, the board of directors, or stockholders of the organization." 
Section IOI(a)(44)(13) ofthe Act. 
We also consider the proposed posrtron in light of the nature of the petitiOner's business, its 
organizational structure, and the availability of staff to carry out the petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a petitioner has, USCIS "may properly consider an organization's small size as one factor 
in assessing whether its operations are substantial enough to support a manager'' 3 Furthennore, it is 
~ Fami~\ 1 , Inc. v. U.S. CNizenship and Immigration Services, 469 F.3d 1313. 1316 (9th Cir. 2006) (citing with approval 
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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. See. e.g, Systrimics Corp. v. INS, !53 F. 
Supp. 2d 7, 15 (D.D.C. 2001). 
In this instance, we have already shown that the Beneficiary's two subordinates are not managers, 
and therefore the Beneficiary is not directing the management of the organization or any component 
thereof. At best he is the first-line supervisor of two procurement workers whose actual employer is 
a separate company owned by other officials of the petitioning entity. The company's structure 
appears to narrowly circumscribe the Beneficiary's discretionary authority. 
The Petitioner has not shown that the company's staffing and structure 
Beneficiary occupying a primarily managerial or executive position. 
IV. CONCLUSION 
_,, 
are consistent vJith the 
The Petitioner did not establish that it will employ the Beneficiary in a primarily managerial or 
executive position in the United States. 
ORDER: The appeal is dismissed. 
Cite as A-fatter ofS-G-&C-C-. LLC, ID# 1175359 (AAO Apr. 12, 20 18) 
Republic of Transkei v. INS. 923 F.2d 175, 178 (D.C. Cir. 1991 ); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data 
Cansalting. Inc. v. INS, 293 F. Supp. 2d 25, 29 (D. D.C. 2003). 
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