dismissed EB-1C Case: International Trade

MATTER OF E-G-USA INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 26,2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an international trading company, seeks to permanently employ the Beneficiary as its 
president/chief executive officer (CEO) 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. § 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 Petitioner did not 
establish, as required, that (1) the Beneficiary would be employed in the United States in a 
managerial or executive capacity, or (2) that she was employed abroad in a managerial or executive 
capacity for at least one year in the three years preceding her entry to the United States as a 
nonimmigrant. 
On appeal, the Petitioner submits additional evidence and asserts that it established by a 
preponderance of the evidence that the Beneficiary qualifies for the requested classification. The 
Petitioner argues that the Director disregarded ~vidence, penalized the Petitioner for failure to submit 
information that was not requested, and placed undue emphasis on the small size of the company. 
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 )( 1 )(C) of the Act. 
The Form I-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 tor 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). 
Matter of gG-USA Inc. 
The law defines the term "managerial capacity" as an assignment in which an 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; has the authority to hire and fire or 
recommend those as well as other 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 
. 101(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A). Further, "[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." !d. 
The term "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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial. 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. Section 101(a)(44)(C) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In the denial decision, the Director determined that the Petitioner's description of the Beneficiary's 
job duties was deficient because it was overly broad and did not provide sufficient insight into the 
nature of her proposed day-to-day duties. Further, the Director found that the Petitioner did not 
provide a sufficiently detailed organizational chart and observed that four of its employees appear to 
be part-time workers. The Director concluded that it is more likely than not that the Beneficiary 
would need to allocate a significant proportion of her time to non-managerial and non-executive 
duties. 
On appeal, the Petitioner asserts that the Director erroneously denied the petition based on the size 
of the company and did not properly r~yiew the detailed position descriptions provided for the 
Beneficiary" and the positions subordinate to her. 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. Beyond the 
required description of the job duties, users reviews the totality of the evidence 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 beneficiary from performing operational duties, the nature of the business, 
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Matter of E-G-USA Inc. 
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 Beneficiary's duties as well as the 
company's business activities and staffing levels. 
A. Duties 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial or executive capacity. Champion World. Inc. 
v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, 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. 
The Petitioner operates an international trading company and seeks to employ the Beneficiary as its 
president/CEO. The Petitioner's letter of support, submitted in April 2014, included a list of her 
broad responsibilities such as "directing and overseeing the company's business operations," 
"developing, determining and implementing the company's polic[i]es, strategies and goals," "setting 
up and supervising the management and personnel structure," "directing, planning and supervising 
business operations," and "formulating long term business development policies and strategies." 
Many of the duties merely paraphrased the statutory definitions of managerial and executive 
capacity and did not describe what she typically does on a day-to-day basis within the scope of the 
company's international trading business. 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). 
In response to a request for evidence (RFE), the Petitioner provided a slightly expanded version of 
its initial description and added the number of hours per week the Beneficiary would allocate to each 
area of responsibility. The Petitioner stated that she will spend 15 hours per week "conferring with, 
receiving reports from and supervising the business manager in managing the operations of 
marketing and selling the products, securing supplies and overseeing products quality for 
marketing/sales, managing the marketing efforts of the products of the company .... " The 
Petitioner referred to the business manager as a full-time employee, but the record reflects that this 
employee's hours were significantly reduced subsequent to the filing of the petition. It is unclear 
that he even worked 15 hours per week, or that he relieved the Beneficiary from first-line 
supervision of sales and marketing tasks and other non-managerial duties as stated in the 
Beneficiary's duty description. 1 
1 
The record contains an appointment letter identifYing as the "sales department manager." While this 
position title is not listed on the Petitioner's organizational chart, the sales department and its two claimed employees are 
under the supervision of the "business manager" and it appears that is in fact the "business manager." He 
received $1,800 per month at the end of 2013 and was the Petitioner's second highest paid employee. In 2015, he 
received a salary of $500 per month. 
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Matter of E-G-USA Inc. 
The Petitioner further stated that the Beneficiary· spends five hours per week making personnel 
decisions regarding the hiring and firing of staff, but the Petitioner has consistently employed five to 
six employees, and the record does not establish that personnel decisions would occupy a significant 
portion of her time. An additional 10 hours of the Beneficiary's time is allocated to "negotiating, 
approving and providing guidance on major transactions" and "expanding sales and source network 
in the United States, by "conferring with business counterparts in the industry," and "promotion and 
expansion of the company's products." These duties relate to the sales and marketing of the 
companis products, and the Petitioner does not indicate these non-managerial tasks would be 
delegated to her subordinates. 
In addition, in some instances, the Petitioner's RFE response did not elaborate on the initial job 
description, but simply added a time allocation to the broadly described responsibilities. For 
example, the Petitioner did not further explain the Beneficiary's involvement in "planning and 
supervising business operations," directing and coordinating formulation of financial programs," and 
"reviewing activity reports and statements." These types of duties resemble a basic template for an 
executive position and do not provide insight into the nature of her role with the Petitioner. Reciting 
a 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. Here, the Petitioner 
has not provided any detail or explanation of the Beneficiary's proposed activities in the course of 
her daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin 
Bros. Co. at 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
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, a 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. 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 ofthe organization." !d. 
Whether the broad duties attributed to the Beneficiary qualify as executive in nature depends in large 
part on whether the Petitioner established that the Beneficiary has sufficient subordinate staff to 
manage and perform the day-to-day company functions she is claimed to direct. As discussed 
further below, the Petitioner has not provided a clear or complete picture of its staffing and structure 
at the time of filing, or of its ability to relieve the Beneficiary from significant involvement in the 
administrative and operational tasks required to operate its international trading business. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification 
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Matter of E-G- USA Inc. 
requires that the duties of a position be "primarily" executive or managerial in nature. Sections 
101(A)(44)(A) and (B) of the Act. While the Beneficiary may exercise discretion over the 
Petitioner's operations and possess the requisite level of authority with respect to discretionary 
decision-making, the position descriptions alone are insufficient to establish that her actual duties 
would be primarily managerial or executive in nature .. 
B. Staffing and Organizational Structure 
The Director determined that the Petitioner did not demonstrate that it has an organizational 
hierarchy in place sufficient to relieve the Beneficiary from involvement in the day-to-day 
operat!ons of the business. 
The Petitioner claimed five employees at the time of filing in April 2014, but did not submit an 
organizational chart depicting its structure or provide evidence of wages paid to employees during 
the first quarter of 2014. In the last quarter of 2013, the Petitioner paid the Beneficiary and four 
other employees, who received monthly salaries of $700, $700, $1,200, and $1,800, respectively. In 
a supporting letter, the Petitioner stated that its employees included the Beneficiary, a secretary, a 
business manager, in-house sales, a shipping clerk, an outside sales contractor, and legal and 
accounting professionals. 
In the RFE, the Director requested a detailed organizational chart with job titles, job duties, and 
education levels for all employees. The Director also requested IRS Forms W-2 for each employee 
for 2014 and 2015. In response, the Petitioner submitted a chart dated February 2014 which 
indicates that the Beneficiary directly supervised the business manager and a "secretary/shipping 
clerk." The chart depicts a sales department with two sales people reporting to the business 
manager. The Petitioner did not identify any employees by name or provide the requested IRS 
Forms W-2 for 2014. As such, the record does not include evidence of wages paid to individual 
subordinate employees in 2014, although the Petitioner did submit its 2014 tax return indicating that 
it paid a total of $37,945 in salaries and wages to all subordinate employees. 
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 ). 
Therefore, we will also consider the most recent evidence available as it pertains to the Petitioner's 
staffing levels, which includes both quarterly wage reports and IRS Forms W -2 for 2015. As of the 
fourth quarter of 2015, the Petitioner employed the Beneficiary and four other employees, including 
three employees earning $500 per month and one earning. $1,000 per month. Therefore, the 
Petitioner had a clear reduction in manpower hours, even if the total number of employees remained 
the same. Although the Director noted the reduction in full-time employees and the lack of 
information regarding which individuals held which positions, the Petitioner does not directly 
address either of these issues on appeal. Rather, the Petitioner emphasizes that the Beneficiary "has 
successfully streamlined the operations to make [the company] more efficient" and asserts that this 
efficiency "is demonstrative of and tribute [sic] to the quality of the top management." 
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Matter of E-G- USA Inc. 
However, in April 2016, in response to the RFE, the Petitioner clearly stated that the Beneficiary 
relies on the full-time services of the business manager to oversee all aspects of the day-to-day 
management ofthe company. The Petitioner also expressly stated in the response to the RFE that it 
had two full-time sales staff. Based on the payroll evidence, the Petitioner did not have a single full­
time employee at the time of the RFE response, other than the Beneficiary, who is stated ro work 48 
hours per week. In fact, the $6,000 annual wage paid to three of the four subordinate employees 
equates to less than 14 hours per week even if we assume that all three employees received 
mmtmum wage. 
These limited working hours cast doubt on the credibility of the extensive job duties attributed to the 
subordinate employees. For example, the job description for the business manager states that this 
individual is responsible for growing the sales/marketing force, assisting the Beneficiary, presenting 
operating plans, conducting "major business negotiations," negotiating with "outside sales 
representatives" negotiating with shipping and customs companies, recommending personnel 
actions, assigning duties to sales persons, setting pricing, inventory, and shipping requirements, and 
preparing reports. This duty list is not credible for an employee who is working approximately 14 
hours per week. The Petitioner also attributes essentially all clerical, bookkeeping, shipping, 
administrative, customer service, and even some sales duties to a single part-time 
"secretary/shipping" employee with similar working hours, although it initially stated that it 
employed both a secretary and a shipping clerk. While the Petitioner's subordinates may relieve her 
from performing some operational and administrative tasks, the record does not establish that the 
part-time staff is sufficient to relieve her from significant involvement in non-managerial duties. 
Further, the record does not support a finding that the Beneficiary is primarily engaged in the 
supervision of subordinate managerial, supervisory, or professional personnel. The statutory 
definition of "managerial capacity" allows for both "personnel managers" and "function managers." 
See section 101(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 
term "function manager" applies generally when a beneficiary does not supervise or control the work 
of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 10l(a)(44)(A)(ii) of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that a beneficiary will manage an essential 
function, a petitioner must furnish a written job . offer that clearly describes the duties to be 
performed in managing the essential function, or more specifically, identify the function with 
2 
In evaluating whether a 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. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign 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." Therefore, we must focus on the level of education required by 
the position, rather than the degree held by a subordinate employee. Here, the Petitioner has not stated any educational 
requirements for the positions subordinate to the Beneficiary, nor has it provided evidence of educational credentials for 
any of its employees. 
Matter of E-G- USA Inc. 
specificity, articulate the essential nature of the function, and establish the proportion of a 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 204.5(j)(5). 
The Petitioner indicates that the Beneficiary supervises a full-time business manager, who, in turn 
supervises a full-times sales staff and several key operational activities of the company. As 
discussed, the business manager is no longer a full-time position and this employee appears to earn 
the same salary as the other part-time employees he is claimed to supervise. The Petitioner has not 
indicated that any other employees have supervisory responsibilities and has not claimed to employ 
professional personnel. The evidence must substantiate that the duties of a beneficiary and his or her 
subordinates correspond to their placement in an organization's structural hierarchy; managerial job 
titles alone are not probative and will not establish that an organization is sufficiently complex to 
support an executive or managerial position. The Petitioner has not established that the Beneficiary 
will be employed as a personnel manager. The Petitioner has not claimed, in the alternative, that the 
Beneficiary manages an essential function of the organization. 
We acknowledge the Petitioner's assertion that the Director over-emphasized the small size of the 
company in concluding that the Beneficiary would not be employed in a qualifying capacity. The 
Petitioner correctly observes that we must take into account the reasonable needs of the org'anization 
and that a company's size alone may not be the only factor in denying a visa petition for 
classification as a multinational manager or executive. See section 101(a)(44)(C) of the Act. 
However, it is appropriate for USCIS to consider the size of the petitioning company in conjunction 
with other relevant factors, such as the absence of employees who would perform the non­
managerial or non-executive operations of the company. Family Inc. v. USCJS, 469 F.3d 1313 (9th 
Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company 
may be especially relevant when USCIS notes discrepancies in the record. See Systronics, 153 F. 
Supp. 2d at 15. Here, the Petitioner maintained that the Beneficiary had the support of full-time statl 
at a time when all of her subordinates were working on a part-time basis. 
While the Petitioner emphasizes that the reduction in manpower hours is a result of the Beneficiary's 
effective leadership and the company's evolving needs, it has not adequately supported its claim that 
the part-time staff in place at the time of the Director's decision was sufficient to relieve the 
Beneficiary from significant involvement in the day-to-day operations of the Petitioner's 
international trade business. The reasonable needs of a petitioner will not supersede the requirement 
that a beneficiary be "primarily" employed in a managerial or executive capacity as required by the 
statute. Brazil Quality Stones v. Cherto_ff, 531 F.3d 1063, 1070 n.1 0 (9th Cir. 2008). 
The Petitioner emphasizes that it submitted "700 pages" of documentation, but the evidence 
provided did not include, as required, a detailed description of the Beneficiary's expected day-to-day 
activities, or a sufficient explanation regarding how the company's reduced staff of four part-time 
employees would be able to relieve the Beneficiary from involvement in the daily operation of the 
business as its sole full-time employee. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
employed in a managerial or executive capacity. 
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Matter of E-G- USA Inc. 
III. BENEFICIARY'S EMPLOYMENT ABROAD 
In the denial decision, the Director briefly addressed the Petitioner's evidence ofthe Beneficiary's 
former employment abroad with its Chinese parent company. The Director acknowledged that the 
RFE response included a detailed statement of the Beneficiary's duties abroad and job descriptions 
for foreign employees she supervised in her role as vice president of the Chinese entity. However, 
the Director determined that the statements of duties were provided by the Petitioner, and not the 
foreign entity, as requested. The Director did not further discuss this evidence. 
In addition, the Director found that the RFE response, which included a "Certificate of 
Employment/Proof of Compensation" from the foreign employer, did not adequately confirm the 
Beneficiary's exact dates of employment abroad or include sufficient evidence of wages paid to her 
during the period of qualifying employment between 2007 and 2012, as the evidence only addressed 
her wages in 2011 and 2012. For these reasons, the Director determined that the Petitioner did not 
establish that the Beneficiary was employed in a managerial or executive capacity abroad with a 
qualifying organization for at least one year in the three years preceding her entry to the United 
States as a nonimmigrant. 
On appeal, the Petitioner asserts that the Director erroneously disregarded the evidence submitted in 
response to the RFE, as the statement of the Beneficiary's managerial and executive duties was 
signed by the foreign entity's legal representative and chairman (who is also authorized to sign for 
the Petitioner). Further, the Petitioner maintains that the evidence was sufficient to document that 
the Beneficiary had at least one full year of employment in the three year period preceding her entry 
to the United States in L-1 A nonimmigrant status. In support of the appeal, the Petitioner provides 
copies of the Beneficiary's payroll records from the foreign entity for the period 2007 to 2012, as 
well as sample internal business documents signed by the Beneficiary in her capacity as the foreign 
entity's vice president. 
Upon de novo review of the evidence, including the additional evidence provided on appeal, we will 
withdraw the Director's adverse finding pertaining to the Beneficiary's employment abroad. The 
totality of the evidence is now sufficient to establish that the foreign entity employed the Beneficiary 
from 2007 until her transfer to the United States in 2012. Further, the evidence shows that, as vice 
president, the Beneficiary performed primarily managerial duties that included supervising a staff of 
subordinate managers or supervisors, holding authority to hire and tire subordinates, and exercising 
discretionary authority over the day-to-day operations of the company. 
IV. PRIOR APPROVALS 
We acknowledge that USCIS has approved other petitions that the Petitioner filed on behalf of the 
Beneficiary, specifically, nonimmigrant petitions granting her L-1 A status as an intracompany 
transferee in a managerial or executive capacity. Each nonimmigrant petition filing is separate from 
this immigrant petition, with a separate record and a separate burden of proof. In making a 
determination of statutory eligibility, USCIS is limited to the information contained in that 
individual record of proceeding. 8 C.F .R. § 103 .2(b )( 16)(ii). 
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Matter of E-G-USA Inc. 
We are not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See Matter of'Church Scientology 
Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng 'g, Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987). Furthermore, we are not be bound to follow a contradictory decision of 
a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. 
La. 2000). 
V. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in the United States in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-G-USA Inc., ID# 571853 (AAO Sept. 26, 2017) 
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