dismissed EB-1C Case: Jewelry

U.S. Citizenship 
and Immigration 
Services 
MATTER OFF-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 6, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a fine jewelry manufacturer and distributor, seeks to permanently employ the Beneficiary 
as its general manager 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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that it would employ the Beneficiary in a managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director placed undue emphasis on the size of the U.S. 
company and failed to consider the Beneficiary's management of staff who work for its claimed 
foreign affiliate. The Petitioner maintains that it established by a preponderance of the evidence that 
it will employ the Beneficiary in a managerial capacity. 
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. § 204.5(i)(3). 
Matter of F-, Inc. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The primary issue to be addressed is whether the Petitioner established that it will employ the 
Beneficiary in a managerial capacity. The Petitioner does not claim that the proposed employment is 
in an executive capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. 1101(a)(44)(A). 
The regulation at 8 C.F.R. § 204.5(i)(5) requires the petitioner to submit a statement which clearly 
describes the duties to be performed by the beneficiary. Beyond the required description of the job 
duties, we review the totality of the evidence when examining a beneficiary's claimed managerial 
capacity, 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, 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 nature of the Petitioner's business, its staffing levels, and its 
organizational structure. 
A. Duties 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definition of managerial 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 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. 
In a supporting letter, the Petitioner explained that the Beneficiary will "exercise broad discretion in 
decision-making in the day-to-day operations of the company" and supervise an international 
marketing team and product development team employed by the Petitioner's claimed affiliate in India. 
The Petitioner indicated that he will divide his time among the following areas of responsibility, and 
listed duties associated with each area: 
Sales, Marketing & Promotion (30 percent) 
Product Management (30 percent) 
Merchandising & Costing (10 percent) 
Budget & Finance (10 percent) 
Personnel Management (20 percent) 
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Matter of F-, Inc. 
In a request for evidence (RFE), the Director advised the Petitioner that the listed duties were vague 
and requested an explanation of the specific daily tasks that are involved with the completion of each 
of the beneficiary's proposed duties and the percentage of time to be spent on each task. 
In response to the RFE, the Petitioner resubmitted essentially the same position description for the 
Beneficiary; it did not provide the more detailed breakdown of the amount of time he would spend on 
specific duties. However, it amended the amount of time to be spent on "sales, marketing and 
promotion" from 30% to 40%, and the amount of time to be spent on "product management" from 
30% to 20% without explanation, and without making any substantive changes to the associated job 
duties. 
The Director determined that "it appears the majority of the beneficiary's time is dedicated towards 
operational and administrative tasks rather than towards management tasks." Upon review, we find 
that many of the Beneficiary's duties are broadly stated and not clearly classifiable as managerial 
tasks. Further, within each area of responsibility, the Petitioner indicated that the Beneficiary would 
perform both managerial and non-managerial duties and, as noted, it did not provided the requested 
details regarding the amount of time to be spent on each task. 
For example, within the Beneficiary's responsibility for "sales, marketing, and promotion," the 
Petitioner included broad managerial functions such as managing the company's annual marketing 
budget; "direct and monitor the execution of the company's sales and marketing strategy"; and 
"directing the execution of company developed marketing strategies in order to maintain corporate 
visibility." While these duties appear to be managerial in nature, other duties, such as developing new 
relationships with prospective buyers and executives; attending sales conferences as the company's 
representative; "actively pursu[ing] community partnerships to improve brand awareness"; managing 
"active client programs to create a core boutique client base"; building "new strategic partnerships 
with customers for long lasting business" and "attending, networking, and representing the company" 
at industry trade shows and exhibitions," without further explanation, suggest that the Beneficiary 
performs a number of non-managerial sales, marketing, and promotional functions as the company's 
sole full-time employee in the United States. 
The Beneficiary's responsibility for "product management" also appears to require him to perform a 
number of non-managerial functions, including involvement in the design and quality control of the 
Petitioner's products. For example, the Petitioner indicates that the Beneficiary uses optical 
instruments to "supervise the evaluation of stone quality and value" and "to detect clarity, cut, 
inclusions, flaws and peculiarities," and supervises "the selection of stones for jewelry mounting 
according to customer needs" Other duties include "supervise special orders to client specifications"; 
"maintain and enhance customer relationships and troubleshoot where necessary"; acting as a liaison 
with clients and contractors"; studying sales records and inventory levels; following up with client 
purchase orders; and presentation of product displays at industry exhibitions. Based on these duties, 
the Beneficiary would be significantly involved in the design and delivery of products to customers 
and few, if any, of the product management duties, which require up to 30% of his time, would be 
deemed managerial functions consistent with the definition at section 10l(a)(44)(A) of the Act. 
Further, the Beneficiary's responsibilities for "merchandising and costing" are stated in broad terms 
and may include non-managerial duties. The Petitioner states that he will "identify new distributors 
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Matter of F-, Inc. 
and vendors" without specifying how he will accomplish this goal or indicating whether he will 
delegate the associated research responsibilities to a subordinate employee. In addition, the Petitioner 
has not identified the specific tasks associated with "monitor[ing] inventory productivity and vendor 
profitability," or "build[ing] the right product at the right price," nor has it provided examples of how 
the Beneficiary will "conduct negotiations to lower operational costs." As a whole, we cannot 
determine to what extent the Beneficiary's "merchandising and costing" responsibility involves 
managerial duties. 
While the Petitioner has consistently indicated that the Beneficiary has overall responsibility for sales 
and marketing strategies and sales performance in the U.S. market, the job description does not 
sufficiently establish that he would be required to perform primarily managerial duties, or that he 
would be relieved from direct involvement in sales, marketing, product development and other 
operational functions. The Petitioner lists the Beneficiary's duties as including both managerial tasks 
and administrative or operational tasks, but does not adequately quantify the time the Beneficiary 
spends on these different duties. Although the Director specifically requested the information, the 
Petitioner's description of the Beneficiary's job duties, for the reasons discussed above, does not 
establish what proportion of the duties is managerial in nature, and what proportion is non-managerial. 
See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, we take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
At the time of filing, the Petitioner stated that it had two current employees. Based on the supporting 
evidence, those two employees were the Beneficiary and an administrative assistant ( also referred to 
as an "office administrator") who was hired to work three days per week, according to her employment 
contract. While the record reflects that the Petitioner later hired one more employee (who is identified 
in the record as either "VP Merchandising" or "Senior Merchandiser), this position did not exist at the 
time of filing. 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, our analysis will be based on the Petitioner's staffing levels at the time of filing, which 
consisted of the Beneficiary and one part-time administrative assistant. The Petitioner has also 
consistently claimed that the Beneficiary supervises two teams of India-based staff: including a 
product development department and an international marketing department. The Petitioner provided 
position descriptions for many of the foreign staff: copies of internal emails as evidence that the 
Beneficiary has authority for hiring new Indian staff: as well as evidence that he "provides direction 
to the overseas teams in terms of product design, quality and customer requirements." 
The Petitioner claims that the Director erred by not taking into account the Beneficiary's supervision 
of the foreign staff and by basing the decision solely on the ability of the Petitioner's small staff to 
support a managerial position. We agree with the Petitioner that the Director should have taken the 
foreign staff into consideration; however, we still find insufficient evidence to establish how the 
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Matter of F-, Inc. 
foreign staff relieve the Beneficiary from significant involvement in administrative and operational 
aspects of the U.S. company on a day-to-day basis. Further the submitted job descriptions reflect that 
the foreign subordinates report to both the Beneficiary and the Beneficiary's India-based superior, a 
director with the Indian company, and the Petitioner did not explain how this shared supervision works 
or who the employees report to on a day-to-day basis. The submitted emails reflect the Beneficiary's 
involvement in product design for U.S. customers, a responsibility that, as discussed above, has not 
been shown to be managerial in nature. 
Further, most of the foreign staff have multiple assigned regions and customers and it remains unclear 
how they support the Beneficiary's day-to-day sales, marketing, and promotion duties in the United 
States to the extent that the Petitioner would reasonably require him to perform primarily managerial 
duties as its sole foll-time employee. The Beneficiary's own position description contains few 
references to subordinate staff: or his delegation of duties to subordinates, and due to the lack of 
specificity, does not support a finding that his actual day-to-day duties are primarily managerial in 
nature. As noted, a number of his duties require direct contact and follow up with customers and 
potential customers in the United States and the Petitioner has not shown that a staff based in India or 
a part-time administrative assistant would relieve him from these direct sales and marketing 
responsibilities. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A) of the Act. Personnel managers are required to primarily 
supervise and control the work of other supervisory, professional, or managerial employees. Contrary 
to the common understanding of the word "manager," the statute plainly states that 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." 1 Id. If a beneficiary directly 
supervises other employees, the beneficiary must also have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. 8 C.F.R. § 204.5(i)(2). 
With respect to the U.S. staff, the Petitioner has not shown that the part-time administrative assistant 
would be acting in a managerial, supervisory, or professional capacity. While several of the foreign 
staff have managerial job titles, the record does not contain sufficient evidence to establish that the 
staff is comprised of professional, managerial or supervisory employees. The evidence indicates that 
most of the staff who report jointly to the beneficiary and his superior have managerial job titles and 
we cannot determine that there is a tiered reporting structure within either department the Beneficiary 
is claimed to manage. Further, the Petitioner has not outlined the educational requirements for the 
foreign positions in support of its claim that they are professionals. Finally, even if we found that 
1 To determine 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 IO 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 subordinate 
employee. The possession of a bachelor's degree by a subordinate employee does not automatically lead to the conclusion 
that an employee is employed in a professional capacity. 
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Matter of F-, Inc. 
some of the foreign staff supervised by the Beneficiary are supervisors or professionals, the Petitioner 
indicates that he spends only 20% of his time on personnel management. The Petitioner still bears the 
burden to establish that his duties as a whole, including those associated with sales, marketing, product 
development, and merchandising, are primarily managerial in nature and it has not met this burden. 
For similar reasons, the Petitioner has not established that the Beneficiary will primarily manage an 
essential function. 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. If a 
petitioner claims that a beneficiary will manage an essential function, it must clearly describe the 
duties to be performed in managing the essential function. In addition, the petitioner must demonstrate 
that "(l) the function is a clearly defined activity; (2) the function is 'essential,' i.e., core to the 
organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the 
beneficiary will act at a senior level within the organizational hierarchy or with respect to the function 
managed; and (5) the beneficiary will exercise discretion over the function's day-to-day 
operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
As noted, while the record establishes that the Beneficiary has overall responsibility for the sales, 
marketing, and development of the Petitioner's products for the U.S. market, it has not shown how the 
one part-time U.S. employee and the foreign staff relieve the Beneficiary from performing operational 
and administrative tasks so that he could primarily manage, rather than perform, duties associated with 
the U.S. sales function. The Petitioner provided evidence that it added a new U.S. employee and plans 
to hire additional U.S.-based staff~ but has not explained how it was able to support a primarily 
managerial position at the time of filing. 
For the foregoing reasons, the Petitioner has not established that it will employ the Beneficiary in a 
managerial capacity. 
III. QUALIFYING RELATIONSHIP 
Although not addressed in the Director's decision, the record does not establish that the Petitioner has 
a qualifying relationship with the Beneficiary's foreign employer. To establish a "qualifying 
relationship," the Petitioner must show that the Beneficiary's foreign employer and the proposed U.S. 
employer are the same employer (a U.S. entity with a foreign office) or related as a "parent and 
subsidiary" or as "affiliates." See§ 203(b )(1 )(C) of the Act; see also 8 C.F.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
"Affiliate" means one of two subsidiaries both of which are owned and controlled by the same parent 
or individual; or, one of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or proportion of each entity. 8 
C.F.R. § 204.5(j)(2). 
The Petitioner has established that it is a wholly-owned subsidiary of c=J' located in India. The 
Petitioner states that~ is an affiliate of the Beneficiary's foreign employer, I l based on 
substantial common ownership by the same three individuals: I I, I I anrll I 
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Matter of F-, Inc. 
However, the submitted evidence does not show establish that the two companies meet either prong 
of the regulatory definition of "affiliate." First, there is no one individual who owns and controls a 
majority interest in botO andl L 
Further, while two companies' respective shareholder lists reflect that they have many owners in 
common, they are not owned by "the same group" of individuals with each individual owning and 
controlling approximately the same share or proportion of each entity, nor does the Petitioner make 
this claim. 
Rather, the Petitioner seeks to rely on common ownership by a group of three individuals. These 
individuals, based on the documentation provided~e Petitioner at the time of filing, have the 
following direct and indirect ownership interests in L_J and I I 
D 
39.37% 
18.04% 
19.69% 
22.27% 
13.34% 
33.32% 
The Petitioner has neither stated nor documented how this group of three individual shareholders act 
together to control both I I andc=J Rather it relies on the fact that they collectively own a 
majority interest in both companies based on their combined ownership interests. 
U.S. Citizenship and Immigration Services (USCIS) has never accepted a combination of individual 
shareholders as a single entity, so that the group may claim majority ownership, unless the group 
members have been shown to be legally bound together as a unit within the company by proxy 
agreements. Absent documentary evidence such as irrevocable proxy agreements, the Petitioner has 
not established that the same group of individuals controls both entities. Here, the Petitioner has not 
provided this evidence or otherwise established that I lanQ are owned and controlled by the 
same group of individuals. 
Based on the evidence submitted, the Petitioner has not established that it has a qualifying relationship 
with the Beneficiary's foreign employer. For this additional reason, the petition cannot be approved. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-, Inc., ID# 3633263 (AAO June 6, 2019) 
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