dismissed EB-1C Case: International Trade

U.S. Citizenship 
and Immigration 
Services 
In Re: 10276903 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 08, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as an international trade import and export company, seeks to 
permanently employ the Beneficiary as its president and operations 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). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity in the United 
States. Further, the Director determined the Petitioner did not demonstrate that the Beneficiary was 
employed abroad in a managerial or executive capacity. 
On appeal, the Petitioner asserts, contrary to the Director's conclusion, that the Beneficiary's U.S. and 
foreign duty descriptions are sufficiently detailed and the submitted evidence establishes that he would 
be employed in an executive capacity in the United States and that he was employed in this same 
capacity abroad. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. The 
Petitioner did not sufficiently establish that the Beneficiary would be employed in a managerial or 
executive capacity in the United States. Since the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments 
regarding whether Beneficiary was employed abroad in a managerial or executive capacity. See INS 
v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on 
issues the decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 
I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant 
is otherwise ineligible). 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form 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 for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(i)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would act in 
an executive capacity in the United States. 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. 
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. § 204.5(j)(5). 
A. Duties 
To be eligible as a multinational executive, the Petitioner must show that the Beneficiary will perform 
the high-level responsibilities set forth in the statutory definition at section 101 (a)( 44 )(B)(i)-(iv) of the 
Act. If the record does not establish that the offered position meets all four of these elements, we 
cannot conclude that it is a qualifying executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in executive duties, 
as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family 
Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether a given beneficiary's 
duties will be primarily executive, we consider the petitioner's description of the job duties, the 
company's organizational structure, the duties of a beneficiary's subordinate employees, the presence 
of other employees to relieve the 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. 
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The Petitioner stated that it is "focused on the import, export, sales and distribution of Consumer 
Houseware, Appliances and Consumer Home Electronics," asserting that it had become one of the 
"leading distributors" of these products. The Petitioner also indicated that it had expanded into selling 
cellphones to its customers. The Petitioner submitted the following duties for the Beneficiary is his 
asserted position as its president and operation director: 
• Product mix policy, in particular policies concerning recalibration of Product Mix 
Components intended to serve our traditional I I Market, as well as new 
markets in Latin America and the Caribbean. For example: the Beneficiary recognized 
an opportunity to expand the activities of the company in the local and international 
market of an the Operation manager and Sales and Marketing Manager started to offer 
Cellphones to the current and new Customers - 10% 
• Policy concerning payment and other options to be given to client in Latin America 
and Caribbean. The Beneficiary created the policies together with the Administration 
Manager and the Sales and Marketing Manager to introduce prices and ways of 
distributing new products. - 2% 
• Policy concerning the expansion of Marketing Efforts toward additional countries in 
Latin America and the Caribbean to be served inl I For example: Within these 
expansion policies it has been to open this new commercial division of cell phones, 
improving the effectiveness of new products. - 5% 
• Personnel policies including the Hiring, Development and Termination of Managers 
and Staff. For example: The beneficiary creates Hiring and Onboarding Policies that 
define how new employees are interviewed and onboarded into the company. - 5% 
• Determine protocols for sale of stale inventory assets. For example: The beneficiary 
meets with the Operation Manager, Sales and Marketing Manager to determine the 
products business has available for sale. The Sales Manager reports the cost of its 
inventory and stale inventory assets, and he advises that it is replaced by newer models. 
-5% 
• Policy concerning own merchandise and third party merchandise Insurance risk 
coverage. The beneficiary create[ s] the policy to determine Risk is essential for a 
business to grow and prosper. Understands risks and consequences and developing a 
comprehensive insurance and loss control program. - 5% 
• Accounting and Legal Counsel selection Policies. For example: The Beneficiary has 
hired the company an independent external accounting Firm. - 5% 
• Policy addressing the situation when client places a purchase order for items not 
included in our Product Mix. For example: These policies are directed to the Sales and 
Marketing Manager. - 5% 
• Meet regularly with each Manager to discuss manners requiring Executive attention, 
such as Waivers from established Policies Directives. - 5% 
• Review Managers reports, to assess whether policies are being met, particularly 
concerning Product Mix, Price Points, New Geographical Market coverage, 
Collections, Employee, Sourcing, Logistics, etc. Issue recommendations as to how to 
accomplish corporate goals. - 10% 
• Every quarter, Beneficiary will hold a one day extended meeting with the Managers 
and their immediate staff: to discuss progress, gain feedback and provide further 
Directives. - 5% 
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• On site visits to own warehouse, freight forwarder warehouses, to assess whether 
observed performance concerning meets Order Fulfillment and Logistics Policies. -
3% 
• Provide Direction to Managers when negotiating terms with Suppliers, Contractors, 
and Clients. For example: the beneficiary visiting the warehouse can make important 
decisions in this regard, and will evaluate the work of the Operations Manager and their 
subordinates. - 2% 
• Supervise and Review audit reports with an eye to evaluating level of compliance with 
company policy by various components. Provide directive guidance and 
recommendations to managers. - 5% 
• Supervise and Review performance metrics, as far as Product Mix, Geographic 
distribution of Sales, to assess whether the organization is on its way to reaching 
operational and profitability goals, articulate additional directives to management. -
3% 
• Approve variances on sales proposals for individual clients - 3% 
• Review individual Managers' work plans, ensure compliance with policies - 2% 
• Meet prospective and existing clients, support Marketing Manager, authorize terms 
which may deviate from Policies or Directives - 5% 
• Upon advice of the Operations Manager, authorize or deny changes in the prices and 
payment terms with third party logistics suppliers - 4% 
• Beneficiary may also review all financial and banking statements and maintain a 
relationship with the banks - 3% 
• Upon recommendations and analysis of staff: Beneficiary will decide whether to enter 
new geographical market, or terminate this presence, or pick or discontinue product 
lines - 3% 
• Prepare reports to the owners of the [Petitioner] and foreign employer informing them 
of the activities of the company- 5% 
The Petitioner submitted a generic U.S. duty description for the Beneficiary that does not credibly 
establish he was primarily engaged in the performance of qualifying executive-level duties as of the 
date the petition was filed. For instance, in denying the petition, the Director emphasized that the 
Beneficiary's duty description included little additional credible detail despite a request for this 
information in the request for evidence (RFE). We agree that the provided duty description lacks 
credible specifics to substantiate the Beneficiary's primary performance of qualifying executive-level 
duties. For instance, the Petitioner discusses "product mix policies," however it did not explain these 
policies, nor did it submit supporting documentation to substantiate them. For instance, it only 
generically and repeatedly stated that the Beneficiary once decided to enter the cellphone market. 
Likewise, the Petitioner pointed to the Beneficiary's focus on marketing policies, but there are no 
specifics as to its marketing activities, or supporting evidence of their existence, beyond vaguely 
stating again that he decided to expand into the cellphone business. There is little detail and supporting 
documentation to substantiate actual actions taken and decisions made by the Beneficiary at the 
executive-level, such as actual pricing, inventory, insurance and risk, or purchase order policies he put 
in place, nor detail and documentation as to the policy waivers he approved, recommendations he 
issued, or suppliers, contractors, or logistics suppliers he negotiated with, or new geographic territories 
he decided to enter. 
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Although we did not expect the Petitioner to articulate and document every executive-level task 
performed by the Beneficiary, it is reasonable to expect that it would provide sufficient detail and 
documentation to sufficiently corroborate his performance of qualifying duties, particularly since it 
asserts he acted in this role in the United States as an L-lA nonimmigrant for approximately one year 
prior to the date this petition was filed. 1 Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive 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). 
On appeal, the Petitioner submits additional evidence it claims demonstrates the Beneficiary's primary 
performance of executive-level duties in the United States, such as email communications by its 
asserted employees and claimed meeting minutes. However, few of these emails are dated prior, or 
near, to the date the petition was filed in July 2018 and very little of them involve the Beneficiary. 
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 mostly consider claimed evidence of the Beneficiary's executive-level tasks dating 
prior, or near, to the date the petition was filed to ascertain whether it was more likely than not that he 
would have acted in an executive capacity at this time. However, little of the supporting evidence 
provided on appeal reflects the Beneficiary's performance of qualifying executive-level duties prior 
to or around July 2018. 
In fact, the supporting documentation provided on appeal appears to reflect the Beneficiary's 
involvement in the day-to-day non-qualifying operational matters of the business before and after the 
date the petition was filed. For instance, claimed board minutes from May 2019 reflect the 
Beneficiary's involvement in an inventory audit and the implementation of a barcode reader system. 
Similarly, an email from January 2018 shows the Beneficiary discussing how the company will protect 
merchandise after receipt, while another from January 2019 indicates his involvement with modifying 
and fixing errors in invoices. In addition, an email dated in August 201 7 again demonstrates the 
Beneficiary correcting an invoice issue. In sum, the supporting documentation is more reflective of 
the Beneficiary's engagement in ordinary operational activities alongside his colleagues rather than 
him primarily establishing the goals and policies of the organization. 
In fact, the Petitioner only submitted one policy document it asserts was established by the Beneficiary, 
a "Manual of Procedure of Personnel and Hiring." However, this document is undated and is not 
credible. For instance, it includes overly generic statements, declaring that "the recruitment process 
will begin as long as there is a vacancy in the company" and "the vacancy and hiring of personnel 
must obey a planning that gives priority to production." This one policy document, emails sparsely 
1 We acknowledge that United States Citizenship and Immigration Service (USCIS) records indicate that the Beneficiary 
was previously approved for an L-1 A intracompany transferee nonimmigrant visa. However, each petition filing is a 
separate proceeding with a separate record and a separate burden of proof In making a determination of statutory 
eligibility, USCTS is limited to the information contained in that individual record of proceeding. 8 C.F.R. ~ 
I 03 .2(b )( l 6)(ii). The Director's decision does not indicate whether he reviewed the prior approvals of other nonimmigrant 
petitions. Tfthe previous nonimmigrant petition was approved based on the same evidence contained in the current record, 
the approval would constitute an error on the part of the Director. 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. Matter of 
Church Scientology lnt'l, 19 I&N Dec. 593, 597 (Comm'r 1988). 
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involve the Beneficiary, and claimed board meeting minutes dated well after the petition was filed do 
not sufficiently establish that he was, or would have been, primarily engaged in executive-level duties 
as of the date the petition was filed. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See sections 10l(a)(44)(B) of the Act. 
Here, the Petitioner does not sufficiently document what proportion of the Beneficiary's duties would 
be executive functions and what proportion would be non-qualifying. The Petitioner lists the 
Beneficiary's duties as including executive-level tasks and provides supporting evidence indicating 
his engagement in administrative or operational tasks; however, it does not quantify the time he would 
spend on these different duties. For this reason, we cannot determine whether the Beneficiary would 
primarily perform the duties of an executive. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 
2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct a portion of the business does not necessarily establish eligibility for classification 
as a multinational executive within the meaning of section 101 (a)( 44 )(B) of the Act. The Beneficiary 
may exercise discretion over some of 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 and Executive Capacity 
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 101 (a)( 44 )( C) of the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function 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. 
In support of the pet1t10n, the Petitioner submitted an organizational chart reflecting that the 
Beneficiary would report to three "company owners/member managers." Further, the chart showed 
that the Beneficiary supervised operations, administration, and a sales and marketing managers. The 
chart also indicated that the operations manger oversaw a "logistics general coordinator" listed as "to 
be hired" who would oversee an independent transportation and logistics company. The 
administration manager was farther shown to supervise an accounts payable and receivable employee 
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and a billing and bookkeeping position shown as "to be hired." The chart also reflected that the sales 
and marketing manager oversaw a sales representative, a graphic designer, and "web & media" 
employee, as well as an independent marketing company based in Venezuela. The Petitioner later 
provided an updated organizational chart specific to 2019 which indicated that it had hired a few 
additional employees, including a general logistics coordinator and a billing and bookkeeping 
employee. However, as previously discussed, for the purposes of the Beneficiary's eligibility as of 
the date the petition was filed, the nexus of our analysis here will be on the Petitioner's claimed 
organizational structure at the time the petition was filed in July 2018. 
The submitted evidence does not sufficiently establish that the Beneficiary was acting, or would have 
acted, in an elevated executive-level position as of the date the petition was filed in July 2018. For 
instance, the Petitioner's state quarterly wage tax documentation from the second quarter of 2018, that 
dated closest to the time the petition was filed, indicated that by June 2018 it only employed four 
individuals, one being the Beneficiary himself. In contrast, the organizational chart submitted with 
the petition showed a total of seven employees below the Beneficiary in the organizational structure, 
including three managers and four subordinate operational level employees. The state wage 
documentation from the second quarter of 2018 further showed that the Petitioner only paid wages to 
one operational level employee, the asserted accounts payable and receivable employee. This 
probative supporting evidence also showed that this only operational level employee earned more than 
the asserted sales and marketing manager. In addition, the state wage tax forms from the second 
quarter of 2018 did not reflect wages paid to the claimed administration manager, nor the asserted 
graphic designer or web and media employee. 
The uncertainty as to the Petitioner's organizational structure was heightened by the lack of evidence 
to support the Petitioner's asserted revenue levels. The Petitioner emphasized that it earned substantial 
income of over $3 million from asserted cellphone sales in 2018, this making up most of its stated 
revenues during that year when the petition was filed. However, there is little objective evidence to 
support this level of income or this substantial level of cellphone sales. For instance, the Petitioner's 
most recent 2017 IRS Form 1065 U.S. Return of Partnership Income reflected that it earned only 
approximately $308,000 during that year and it provided no other objective evidence to support its 
claimed elevated revenue levels. Likewise, the Petitioner questionably did not submit its state 
quarterly wage tax documentation from the third and fourth quarters of 2018, evidence very much 
probative to assessing whether it was sufficiently staffed and operational to support the Beneficiary's 
asserted executive-level role near to the date the petition was filed. Indeed, the Petitioner did provide 
these same forms for 2019, leaving only further question as to why it did not provide these probative 
state wage tax forms coinciding with the date the petition was filed. 
In sum, these discrepancies leave ambiguity as to the Petitioner's claimed organizational structure as 
of the date the petition was filed and whether it was sufficiently developed to support the Beneficiary 
in an elevated executive-level position. The Petitioner must resolve discrepancies and ambiguities in 
the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
As we noted, the Petitioner provided additional supporting documentation on appeal and contends this 
establishes the Beneficiary's executive-role and his primary performance of qualifying duties. 
However, as we mentioned, the vast majority of this supporting evidence, even if it did demonstrate 
7 
his executive-level role, is dated well after the time the petition was filed, and is therefore not probative 
to the Beneficiary's eligibility as of the date the petition was filed. Further, to the extent the Petitioner 
submitted evidence predating the petition or generally coincided with the date the petition was filed, 
this appears to indicate the Beneficiary's involvement with day-to-day operational matters, such as 
invoicing issues and ensuring the safety of shipped goods. Likewise, provided emails, few of which 
include the Beneficiary, reflect his claimed subordinate manarrs also handling the operational matters 
of the business while coordinating with a sales firm based in I 
Furthermore, the duties of the operations manager and the sales and marketing manager reflected a 
subordinate to the Beneficiary also appear to reflect largely operational tasks and do not corroborate 
their claimed supervisory level positions. For instance, the duties of the operations manager note his 
responsibility for "receiving, inspecting, documenting and storing the merchandize [sic]" received by 
the Petitioner. Meanwhile, the duties of the asserted sales and marketing manager state a responsibility 
for determining client needs, assessing spare parts providers, and overseeing unsubstantiated sales 
representatives abroad. In addition, as we discussed, the Petitioner's state quarterly wage 
documentation closest to the date the petition was filed did not reflect that it employed the 
Beneficiary's other claimed subordinate manager, the administration manager. Lastly, as previously 
explained, the supporting documentation provided on appeal also appears to reflect the Beneficiary's 
daily engagement in non-qualifying operational matters, rather than higher level executive decisions 
involving general goals and policies. As such, the newly submitted evidence does little to establish 
that the Beneficiary was primarily acting, or that he would have acted, in an executive capacity as of 
the date the petition was filed in July 2018. 
For the foregoing reasons, the Petitioner has not demonstrated that the Beneficiary would act in an 
executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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