dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-E- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 6, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an information technology equipment recycling company, seeks to permanently 
employ the Beneficiary as its executive director under the first preference immigrant classification 
for multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity. 
Further, the Director determined that the Petitioner did not demonstrate that it has the ability to pay 
the Beneficiary's proffered wage. 
On appeal, the Petitioner submits additional evidence addressing the Director's concerns regarding its 
ability to pay the Beneficiary's wage and contends that, contrary to the Director's conclusion, the 
Beneficiary would act in an executive capacity and would be relieved from performing non-qualifying 
operational duties. 
Upon de novo review, we will dismiss the appeal. We will, however, withdraw the Director's 
conclusion that the Petitioner did not establish that it had the ability to pay the Beneficiary's 
proffered wage. 1 
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 
1 The Petitioner's 2016 and 2017 income tax returns demonstrate that the company's net income exceeds the 
Beneficiary's proffered wage. This evidence is sufficient to establish the Petitioner's ability to pay as required by 
8 C.F.R. § 204.5(g)(2). 
Matter of E-E- LLC 
executive services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(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. § 204.50)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The first issue we will address is whether the Petitioner established that the Beneficiary would act in 
an executive capacity. The Petitioner does not claim that the Beneficiary would be employed in a 
managerial capacity. Therefore, we restrict our analysis to whether the Beneficiary would be 
employed in an executive capacity. 
"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 
101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
When examining the executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in an executive 
capacity. 8 C.F.R. § 204.50)(5). Beyond the required description of the job duties, we examine the 
company's organizational structure, the duties of a beneficiary's subordinate employees, the 
presence of other employees to relieve a beneficiary from performing operational duties, the nature 
of the business, and any other factors that will contribute to understanding a beneficiary's actual 
duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties 
Based on the statutory 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 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational 
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Matter of E-E- LLC 
activities alongside the Petitioner's other employees. See Family Inc. v. USCJS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner stated that it purchases computers and other used information technology (IT) 
equipment, refurbishes these goods, and exports them internationally for re-sale. It provided 
evidence that it purchased a 10,000 square foot warehouse and office space in 2016. 
In a letter submitted in response to the Director's request for evidence (RFE), the Petitioner stated 
that the Beneficiary, as executive director, would devote 50% of his time to "operational 
management and accountability," including overseeing day-to-day operations, meeting daily with his 
subordinate operations manager, and implementing daily goals, objectives, and strategic plans. The 
Petitioner further explained that this area of responsibility will include encouraging employees 
through incentives and rewards, setting prices with suppliers, determining additional markets to 
enter, adapting to clients, and ensuring measures for a safe and secure warehouse. In addition, the 
Petitioner indicated that the Beneficiary would spend 30% of his time on "purchasing/sales 
functions," performing such duties as approving new contracts, interacting with long-term buyers 
and suppliers, searching for potential high volume deals and suppliers, working with the sales 
director on attracting new business, and participating in closings with the sales director. It also 
explained that the Beneficiary will be studying new import and export policies and establishing 
relationships with shipping companies. 
The Petitioner further stated that the Beneficiary would devote 5% of his time to "technology 
enhancement and training," including applying for responsible recycler certification, engaging 
software companies to update tracking software, and providing training sessions for employees. The 
Petitioner also indicated that the Beneficiary would be responsible 5% of the time for "financial, tax, 
risk and facilities management," performing such duties as devising a yearly budget and funding 
advertising and marketing, and that he would devote another 5% to fundraising and engaging other 
companies and venture capitalists. Lastly, the Petitioner explained that the Beneficiary would spend 
5% of his time on "brand buildup and expansion," acting as a public relations representative and 
reaching out to various television and new media channels. 
The Petitioner did not submit a sufficiently detailed duty description describing the Beneficiary's 
day-to-day executive-level duties in support of its claim that he would devote his time primarily to 
qualifying tasks. The Beneficiary's duty description includes several generic duties that could apply 
to any executive acting in any business or industry and they do not provide insight into the actual 
nature of his role. The Petitioner provided insufficient examples and little supporting documentation 
to demonstrate the Beneficiary's performance of qualifying duties, such as daily goals and objectives 
he implemented, strategic plans he set, employee incentive and reward programs he put in place, or 
additional markets he decided to enter. It is not sufficient to simply state that he is responsible for 
"overseeing day-to-day operations." 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., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
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Matter of E-E- LLC 
Likewise, the Petitioner did not articulate or document contracts the Beneficiary negotiated with 
buyers and suppliers, or "high-volume deals" he closed with his sales director. In fact, the Petitioner 
has been operating in Georgia since 2012, but the Petitioner provides only one IT equipment 
"recycling agreement" the Beneficiary executed in May 2016; despite asserting that the Beneficiary 
devotes 30% of his time to these contract negotiations with suppliers and clients. Similarly, the 
Petitioner submits three loan agreements the Beneficiary executed with a financial institutions in 
August 2016, including borrowing $50,000 to purchase inventory, $95,000 to purchase its 
warehouse, and $45,000 to purchase shredding machinery and forklifts. However, the record 
includes no other documentation of the Beneficiary's asserted focus on higher level financial matters 
to substantiate that this would be a daily task as asserted in his duty description. 
In fact, to the extent that the Petitioner submits evidence related to the Beneficiary's activities, it 
reflects his performance of non-qualifying operational duties. For instance, the record includes 
substantial documentation indicating the Beneficiary's direct involvement in the purchase, sale, and 
shipment of goods throughout 2016 and 2017, including invoices, an auction purchase form, and 
shipping documentation bearing his name. In fact, some of the invoices are dated as late as August 
201 7, approximately six months after this petition was filed. The Petitioner also provides emails 
reflecting that the Beneficiary bids on information technology equipment and submits price quotes to 
potential suppliers. In contrast, none of the supporting evidence shows that the Beneficiary 
delegates these non-qualifying operational tasks to subordinates or establishes that his subordinates 
perform these non-executive duties. For example, the Petitioner indicates that the Beneficiary will 
devote 30% of his time working with the sales director on purchasing and sales functions, but none 
of the submitted documentation indicates his delegation of these tasks to the sales director. In fact, 
the Petitioner has since clarified that the sales director is not a paid employee of the company and 
this individual's actual role and responsibilities are unclear. 
In sum, the Beneficiary's duty description suggests that he will be performing various non­
qualifying operational aspects of the business, such as providing price quotes, closing day-to-day 
transactions, acquiring IT equipment, and shipping goods, and there is little evidence to demonstrate 
that he is primarily delegating these tasks to his subordinates. 
Whether a beneficiary is an executive employee turns on whether the petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See section 101(a)(44)(B) of the Act. 
Here, the Petitioner does not document what proportion of the Beneficiary's duties would be 
executive functions and what proportion would be non-qualifying. Indeed, the Petitioner stated that 
the Beneficiary "is not, now or in the past, involved in the daily running of the business." However, 
this statement is not credible in light of the supporting documentation indicating otherwise. The 
Petitioner submits evidence indicating the Beneficiary's involvement in operational-level tasks that 
do not fall directly under executive duties as defined in the statute, but does not quantify the time he 
spends on these duties. For this reason, we cannot determine whether the Beneficiary is primarily 
performing the duties of an executive. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). 
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Matter of E-E- LLC 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational executive within the meaning of section 10l(a)(44)(B) of the Act. The Beneficiary 
may exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of 
authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that his actual duties would be primarily executive in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 10l(a)(44)(C) of the Act. 
As previously discussed, the Petitioner asserts that the Beneficiary qualifies as an executive. 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 10l(a)(44)(B) of the Act. 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 a beneficiary to direct and they 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. A 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." Id. 
On the Form 1-140, the Petitioner stated that it had seven employees at the time of filing in February 
201 7. In support of the petition, the Petitioner submitted an organizational chart reflecting that the 
Beneficiary supervised three legal entities - his former foreign employer, the Petitioner, and another 
U.S.-based entity, E-R- LLC, which was described as the Petitioner's affiliate. Within the 
Petitioner's operations, the Beneficiary was shown to oversee a sales director and an office manager, 
while the office manager supervised a warehouse supervisor with two subordinates - a warehouse 
assistant and a technical support executive. The chart also indicated that the Beneficiary supervised 
two employees working for the foreign employer, a business development manager and a web 
developer executive. Lastly, the chart showed that the Beneficiary oversaw a business development 
executive working for the claimed U.S. affiliate. The Petitioner also provided a Georgia Employer's 
Quarterly Tax and Wage Report from the second quarter of 2016 listing ten employees and internal 
payroll documentation from the third quarter of 2016; however, none of the employees listed in these 
documents were reflected in the organizational chart provided with the petition. 
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Matter of E-E- LLC 
In response to the Director's request for evidence (RFE) in November 2017, the Petitioner submitted 
an updated organizational chart with new employees and positions. Only the Beneficiary and the 
claimed sales director remained from the previous chart. The revised chart shows that the 
Beneficiary supervised the sales director who oversaw an operations manager. The operations 
manager was shown to oversee an "accounts/administrative" employee supervising a bookkeeper 
and a certified public accountant, and a warehouse manager managing three warehouse technicians 
and a "contract driver." The new chart again indicated that the Beneficiary continued to supervise 
two employees working for the foreign employer, a business development manager and a web 
developer executive, but did not include the claimed U.S. affiliate or its employee(s). 
The Petitioner's shifting organizational structure caused the Director to question whether the 
company maintained the staffing and structure to support the Beneficiary in his asserted executive 
capacity. The Petitioner must establish that all eligibility requirements for the immigration benefit 
have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. 
§ 103.2(b)(l). 
In a notice of intent to deny (NOID), the Director advised the Petitioner that its organizational charts 
and payroll records indicate "a frequent and large employee turnover." The Director noted that none 
of the employees identified in the 2016 payroll records were working for the company in February 
2017 when the petition was filed, while the employees working at the time of filing, except for the 
Beneficiary and his spouse, were no longer with the company at the time of the RFE response. The 
Director also observed that the Petitioner claimed to have seven full-time positions in its company, 
but did not pay salaries and wages commensurate with that level of employment. The Director 
asked the Petitioner to provide additional evidence identifying how long positions remained 
unoccupied and explaining who filled in during periods of turnover. 
In response to the NOID, the Petitioner emphasized that the Beneficiary works out of a home office 
more than two hours away from the company's warehouse, insulating him from involvement in the 
company's day-to-day operations.2 In support of this assertion, the Petitioner provided a photograph 
of a work station and a monitor reflecting apparent security camera feeds from the company's 
warehouse. However, this evidence is not sufficient to overcome the substantial evidence of the 
Beneficiary's performance of non-qualifying operational duties and the lack of evidence 
demonstrating his delegation of these tasks. For instance, in response to the NOID, the Petitioner 
emphasized that the Beneficiary's operations manager supervises "our work staff at the warehouse, 
including hiring for vacant positions, and managing workload" and that "at no time does [the] 
Beneficiary take on any of the administrative or technical work." It further contends that the 
Beneficiary is tasked with "meeting with clients and local officials, [ and] meeting with banking 
institutions." 
2 We note that the Petitioner stated that the Beneficiary commuted to its warehouse on a daily basis when it filed the 
petition, but later moved to a new residential address. 
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Matter of E-E- LLC 
However, as noted, the Petitioner did not provide evidence of the Beneficiary's performance of his 
claimed executive-level tasks, nor does it corroborate its claim that he delegates managerial duties to 
his subordinate operations manager, beyond providing documentation indicating that this employee 
began signing payroll checks more than ten months after the date the petition was filed. 3 Further, it 
is also noteworthy that the Petitioner has not provided additional evidence on appeal to corroborate 
that the Beneficiary is primarily relieved from performing non-qualifying duties. A petitioner's 
unsupported statements are of very limited weight and normally will be insufficient to carry its 
burden of proof. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 l&N Dec. 369,376 (AAO 2010). 
The Petitioner did not respond to the Director's request that it provide additional evidence related to 
the frequent position vacancies in the company. The Petitioner notes that the operations manager is 
required to "manage the shortage" when vacancies occur by reassigning work to "other staff' or that 
she must "take on tasks herself." However, the Petitioner requires staff to purchase used computers 
and other inventory, receive deliveries, refurbish those products for resale or recycle them, manage 
inventory at a 10,000 square foot warehouse, market and sell the products, and pack and ship orders, 
in addition to day to day administrative and other operational tasks, such as providing technical 
training to new hires. It is unclear how many of these tasks the operations manager could reasonably 
perform when facing labor shortages and the Petitioner did not adequately address the Director's 
legitimate concern regarding the company's turnover and typical staffing levels. Further, the 
Beneficiary's job description indicates that he is responsible for providing technical training to 
employees. Given the frequent turnover in staff, it appears that this non-executive task may require 
more of the Beneficiary's time than stated. 
For these reasons, the Petitioner's explanation that the Beneficiary currently lives too far away to 
participate in the day-to-day operations of the company is not sufficient to establish that he is 
relieved from performing non-executive duties, or that he was relieved from such duties at the time 
of filing. In fact, as discussed, the record includes substantial documentation reflecting the 
Beneficiary's ongoing involvement in non-qualifying activities and it lacks evidence indicating his 
delegation of these tasks to managerial subordinates. We acknowledge that all organizations 
undergo some level of turnover; however, the Petitioner's frequent and significant turnover indicates 
that it is unlikely that it had a subordinate level of managerial employees in place to allow the 
Beneficiary to focus on the broad goals and policies of the organization rather than its day-to-day 
operations. 
We acknowledge that the Petitioner also lists foreign company employees and contractors, such as 
the referenced bookkeeper and a certified public accountant, as a part of its organizational chart. 
With respect to the referenced foreign company employees, the Petitioner has provided little 
explanation and evidence as to what duties these asserted employees perform for the Petitioner. 
Indeed, the titles of these employees, business development manager and a web developer executive, 
3 The record contains evidence indicating that the Beneficiary himself was responsible for signing payroll checks at the 
time of filing. The operations manager did not work for the Petitioner when it filed the petition in February 2017. 
Matter of E-E- LLC 
appear to bear little relation to the company's asserted operations. Likewise, the Petitioner submits 
no supporting documentation to substantiate that it regularly engages these employees, or the 
mentioned bookkeeper and a certified public accountant, such that they could be considered a part of 
the company's organizational structure. Similarly, although the Petitioner initially claimed that the 
Beneficiary would supervise an affiliate company with its own employee(s), the Petitioner did not 
provide evidence related to this company and did not include the company or its staff on the updated 
organizational chart. 
In conclusion, the Petitioner has not established that the Beneficiary would act in an executive 
capacity under an approved petition. The Beneficiary's duty description is overly vague and the 
record includes substantial documentary evidence indicating that the Beneficiary performed many 
non-qualifying duties related to the company's day-to-day operations well after the date the petition 
was filed. The evidence is not sufficient to demonstrate that the Beneficiary would act in an elevated 
position within a complex organizational hierarchy, that he would oversee a subordinate level of 
managerial employees, or that he would be primarily tasked with directing the management and 
establishing the goals and policies of the organization, consistent with the statutory definition of 
executive capacity. 
III. CONCLUSION 
The appeal will be dismissed because 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-E-LLC, ID# 1561691 (AAO Sept. 6, 2018) 
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