dismissed EB-1C Case: Investment Holdings

U.S. Citizenship 
and Immigration 
Services 
In Re: 4925821 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 15, 2020 
Form I-140C, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, describing itself an investment holdings company operating a restaurant and a property 
management business, seeks to permanently employ the Beneficiary as its chief executive officer 
(CEO) in the United States 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 )(1 )(C). 
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 
in the United States . In addition, the Director determined that the Petitioner did not demonstrate that 
the Beneficiary had been employed in a managerial or executive capacity in his former position abroad. 
On appeal, the Petitioner asserts that the Beneficiary would act as an executive in the United States 
overseeing subordinate managers and contends that its number of employees and finances reflect this 
need. Further, the Petitioner states that the Beneficiary has been previously approved for L-1 
nonimmigrant visas and indicates that he acted in a managerial and executive capacity abroad. 
Upon de nova review, we will dismiss the appeal. 
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 .5U)(3). 
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. 
"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. 
III. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The first issue we will address is whether the Petitioner has established that the Beneficiary acted in a 
managerial or executive capacity abroad. Throughout the record, and on appeal, the Petitioner 
indicates that the Beneficiary qualified abroad as both an executive and a manager. 
A petitioner claiming that a beneficiary will perform as a "hybrid" manager/executive will not meet 
its burden of proof unless it has demonstrated that the beneficiary will primarily engage in either 
managerial or executive capacity duties. See section 10l(a)(44)(A)-(B) of the Act. While in some 
instances there may be duties that could qualify as both managerial and executive in nature, it is the 
petitioner's burden to establish that the beneficiary's duties meet each criteria set forth in the statutory 
definition for either managerial or executive capacity. A petition may not be approved if the evidence 
of record does not establish that the beneficiary will be primarily employed in either a managerial or 
executive capacity. 
The regulation at 8 C.F.R. § 204.5(i)(5) requires the Petitioner to submit a statement that clearly 
describes the duties performed by the Beneficiary abroad. Beyond the required description of the 
foreign job duties, we review the totality of the evidence when examining the claimed managerial or 
executive capacity of a beneficiary abroad, including the foreign employer's organizational structure, 
the duties of a beneficiary's subordinate employees abroad, the presence of other employees to relieve 
a beneficiary from performing operational duties, the nature of the foreign business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in the business 
abroad. Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the 
foreign employer's business activities and staffing levels. 
A. Duties 
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The Petitioner must show that the Beneficiary performed certain high-level responsibilities abroad 
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 was primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the foreign employer's other employees. See Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner stated that the Beneficiary's former foreign employer was established in 2010, he 
owned 50% of its shares, and that it "is a travel agency offering a wide variety of travel services, 
including car rental, hotel reservations, cruises, and ground transportation, among others." 
As a preliminary matter, the Petitioner submitted conflicting position titles for the Beneficiary 
throughout the record. These material discrepancies leave substantial uncertainty as to his asserted 
foreign employment in a managerial or executive capacity. For instance, in a support letter provided 
with the petition, the Petitioner stated that the Beneficiary had been "CEO" of the foreign employer 
since 2010, while another letter indicated that he had been employed as "Director" during this time. 
Meanwhile, the Petitioner provided the Beneficiary's resume reflecting that he had been employed as 
"sales manager" from "2010-current" as well as payroll documentation and a flight ticket "agreement 
letter" from 2015 indicating that he had been employed as a sales manager. However, in response to 
the Director's later request for evidence (RFE), the Petitioner stated that the Beneficiary "has been the 
Director of [the foreign employer]." 
Now on appeal, the Petitioner again submits conflicting position titles for the Beneficiary in his former 
capacity abroad. For example, the Petitioner indicates in counsel's brief: in an organizational chart, 
and in provided foreign employer payroll documentation that the Beneficiary acted as a sales manager. 
In contrast, the Petitioner states in a letter submitted on appeal that the Beneficiary "has been the 
Director of [the foreign employer]" since 2010. The Petitioner also offered conflicting information 
regarding the dates of his foreign employment abroad, stating that he worked in this capacity until 
November 2016. Yet in apparent conflict, United States Citizenship and Immigration Services 
(USCIS) records reflect that the Beneficiary entered the United States in January 2016 pursuant to an 
L-1 A intracompany transferee visa. The Petitioner did not discuss how or if the Beneficiary remained 
employed as a manager or executive abroad, nor did it mention this dual role prior to appeal. Now on 
appeal, it includes several foreign duties in the Beneficiary's U.S. duty description. In sum, the actual 
role the Beneficiary worked abroad and the dates of this asserted foreign employment are left unclear. 
The Petitioner must resolve inconsistencies and discrepancies 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). 
In the RFE, the Director requested that the Petitioner provide a definitive description of the 
Beneficiary's foreign job duties along with the percentages of time he devoted to each of his tasks. 
The Petitioner did not submit a comprehensive foreign duty description as requested and the Director 
emphasized this deficiency in denying the petition. On appeal, the Petitioner still does not remedy 
this material deficiency; as such, without a comprehensive foreign duty description for the Beneficiary, 
a primary focus on our analysis, we cannot determine whether he acted primarily in a managerial or 
executive capacity abroad. It is noteworthy that the Petitioner, despite having two opportunities to 
remedy this material discrepancy, has not submitted a comprehensive foreign duty description for the 
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Beneficiary. In addition, it also provides little evidence to substantiate the Beneficiary acting in his 
former role abroad, despite asserting that he acted in this capacity from 2010 to his entry into the 
United States in January 2016. For this reason alone, the appeal must be dismissed. 
The fact that the Beneficiary manages or directs business does not necessarily establish eligibility for 
classification as a multinational manager or executive. By statute, eligibility for this classification 
requires that the duties of a foreign position be "primarily" managerial or executive in nature. Sections 
10l(A)(44)(A) and (B) of the Act. Even though the Beneficiary may exercise discretion over some of 
the foreign employer's day-to-day operations and possess the requisite level of authority with respect 
to discretionary decision-making, the position descriptions alone are insufficient to establish that his 
foreign duties are primarily managerial or executive in nature. 
B. Staffing and Operations 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, the reasonable needs of the organization are taken into account in light of the 
overall purpose and stage of development of the organization. See section 101(a)(44)(C) of the Act. 
In denying the petition, the Director indicated that the Petitioner did not submit a foreign 
organizational chart corresponding with the time of the Beneficiary's foreign employment, despite a 
direct request for this evidence in the RFE. The Petitioner had previously submitted a foreign 
organizational chart that did not include the Beneficiary; therefore presumably, it was not relevant to 
the asserted time of his foreign employment prior to his entry into the United States as a nonimmigrant 
in January 2016. Now, on appeal, the Petitioner submits a foreign employer organizational chart 
including the Beneficiary. 
This chart reflects that the Beneficiary acted as a sales manager overseeing a reservations manager 
supervising two sales executives, while his foreign partner and 50% owner of the foreign employer, is 
listed as a general manager supervising an "administration" employee overseeing two messengers. 
Again, this claimed organizational chart is in direct conflict with its other statements on the record as 
to the Beneficiary's subordinates. For example, in a support letter dated in December 2016, the 
Petitioner indicated that the Beneficiary had acted as director since 2010 "where he oversaw a team of 
seven (15) [sic] 1 employees," while submitted foreign payroll documentation from May, August, and 
September 2015 showed that the foreign entity had nine employees total. Meanwhile, a later support 
letter submitted in response to the RFE dated in June 201 7 indicated that the Beneficiary had acted as 
director since 2010 "where he oversees a team of twelve (12) employees." As such, the record includes 
various conflicting assertions as to the Beneficiary's number of subordinates abroad, leaving 
substantial uncertainty as to his claimed former role abroad. For instance, on the record, the Petitioner 
indicates that the Beneficiary supervised one subordinate (with two underlying subordinates) as well 
as seven, 15, nine, and 12 subordinates. Once again, the Petitioner must resolve inconsistencies and 
discrepancies in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. at 582, 591-92. 
1 We note that this was an apparent typographical error in the provided support letter. Regardless, it was not clear how 
many subordinates the Beneficiary oversaw abroad. 
4 
Beyond this, the Petitioner provides little supporting evidence to substantiate that the Beneficiary acted 
in a managerial or executive capacity with the foreign employer for several years. For instance, there 
is no supporting evidence reflecting him delegating duties to his claimed subordinates or him directing 
them in his asserted role. In fact, the Petitioner only submits foreign payroll documentation dating 
from only from October through December 2015; which does not, at minimum, substantiate that he 
was employed by the foreign employer for at least one year. See 8 C.F.R. § 204.5(i)(3). 
For the foregoing reasons, the Petitioner has not established that the Beneficiary was employed in a 
managerial or executive capacity for at least one year in the three preceding his entry into the United 
States as a nonimmigrant. 
IV. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
As we have discussed, the Director also denied the petition concluding that the Petitioner did not 
establish that the Beneficiary would be employed in a managerial capacity in the United States. 2 
Because of the dispositive effect of the above finding of ineligibility; namely, our affirmation of the 
Director's conclusion that the Petitioner did not establish that the Beneficiary acted in a managerial 
capacity in his former position abroad, we will only briefly address the remaining issue addressed by 
the Director. The Petitioner asserts that the Beneficiary would act in an executive capacity in the 
United States. 
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 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 of the organization." 
Id. 
The Petitioner indicated that it was established in 2015 "as a diversified holdin com any" targetin: 
investments throup:h thr~..l..!..IJw..a.~..LU.li!.!.:l.<.l.L..l.4'mpanies, including ~-----;:=====-~ J._ ____ _.J 
I ~' and The Petitioner stated that.__ ___ _. was engaged in 
"property management services," while operated a pizza restaurant and bar. 
Upon review, the provided evidence does not sufficiently demonstrate that the Beneficiary would act 
in an executive capacity in the United States. The Petitioner submitted slightly different duty 
descriptions on the record, and now provides another on appeal. However, these U.S. descriptions 
substantially conflict with each other and include material discrepancies. For instance, the duty 
2 The Petitioner only claimed that the Beneficiary would be employed in an executive capacity in the United States and 
not as a manager consistent with the regulations. Therefore, we will only briefly analyze whether the Beneficiary would 
qualify as an executive in the United States. 
5 
descriptions provided prior to appeal mention that the Beneficiary would communicate with a 
"Board." However, there is no evidence that a board of directors exists, and its seems doubtful without 
supporting evidence that the Beneficiary would regularly report to a board of directors as 50% owner 
of the Petitioner. In addition, the initial duty descriptions stated that the Beneficiary would devote 5% 
of his time working with a "marketing specialist to determine a marketing a promotion strategy;" yet, 
there is no marketing specialist listed in any of the U.S. organizational charts provided on the record. 
Now, on appeal, the Petitioner again submits this same duty U.S. description along with a new 
substantially different version that conflicts. For example, the different duty description provided on 
appeal appears to indicate that the Beneficiary would devote a portion of his time coordinating with 
the foreign employer, including handling its lease agreement in Caracas and reviewing its objectives 
and business strategy. However, there was no indication in either of the previously submitted duty 
descriptions that the Beneficiary would continue to act in a managerial or executive capacity in relation 
to the foreign employer while assigned to the United States. Further, once again, the updated duty 
description still refers to a board of directors and a marketing specialist not supported by the submitted 
evidence. 
In addition, the record includes substantial evidence that the Beneficiary was widely engaged in non­
qualifying operational duties of the business as of the date the petition was filed. For instance, the 
Petitioner presented cable, renovation, pizza supply, home owners association, and property rental 
invoices including the Beneficiary's name, some dated as late as December 2016. 3 This supporting 
documentation suggests the Beneficiary's direct involvement in many of the non-qualifying 
operational duties of the business as of the date the petition was filed. Similarly, the bank accounts of 
the Petitioner and its U.S. affiliates reflected the Beneficiary writing checks for the payment of these 
services up until the date the petition was filed. The updated duty description provided for the 
Beneficiary on appeal also appears to include several duties indicating his direct involvement in the 
non-qualifying operational aspects of the business, including responsibility for adjusting prices on its 
pizza menu, coordinating with restaurant supply vendors on orders, working with a vendor on its point 
of sale system, and managing server, bartender, and kitchen schedules. These duties indicate that it is 
more likely that the Beneficiary is primarily engaged in directly managing a pizza restaurant and that 
he is not acting within a complex organizational hierarchy where he would primarily focus on the 
broad goals and policies of the organization rather than its day-to-day operations. 
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 101(a)(44)(A) of the Act. 
Here, the Petitioner lists duties and provides evidence reflecting the Beneficiary's involvement in non­
qualifying tasks, but does not sufficiently document what proportion of his duties would be executive 
functions and what proportion would be non-qualifying. 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). 
Beyond the operational tasks discussed above, the Petitioner submitted U.S. duty descriptions for the 
Beneficiary that were generic and the record lacked supporting documentation to substantiate that he 
would be primarily engaged in qualifying executive-level tasks. The asserted executive-level duties 
for the Beneficiary were vague, added little insight into his actual day-to-day tasks, and could apply 
3 The petition was filed on December 23, 2016. 
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to any executive acting in a position in any industry. For instance, the Petitioner did not sufficiently 
articulate or document pricing and marketing strategies the Beneficiary set, personnel hiring policies 
he established, new investment opportunities he identified and executed on (beyond the 
aforementioned pizza restaurant), or strategic planning he coordinated with the foreign employer. 
Likewise, the Petitioner did not detail or support the banks and suppliers the Beneficiary negotiated 
with, the administration and marketing budgets he put in place, the contracts he signed, policies and 
objectives he established, management plans he developed, credit lines he managed, or strategic 
alliances he fostered. 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. at 1103, 1108. 
For the foregoing reasons, the Petitioner did not establish that the Beneficiary would be employed in 
an executive capacity in the United States. 
V. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that Beneficiary was 
employed in a managerial or executive capacity abroad or that he would be employed in a managerial 
or executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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