dismissed EB-1C Case: Logistics And International Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-D-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a logistics and international trade company, seeks to permanently employ the 
Beneficiary. as its general manager 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 Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that it will employ the Beneficiary in a managerial or capacity, or that the 
Beneficiary was employed abroad in a managerial or executive capacity prior to his entry to the 
United States to work for the Petitioner as a nonimmigrant. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary was employed 
abroad, and will be employed in the United States, in an executive capacity. 
Upon de novo review, we will withdraw the Director's decision with respect to the Beneficiary's 
employment abroad. 1 However, as the Petitioner has not overcome the remaining ground for denial, 
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. 
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Upon review of the totality of the evidence, including the Beneficiary's duties, the foreign entity's document~d staffing 
levels and organizational structure, and new evidence submitted on appeal, we find that the Petitioner established by a 
preponderance of the evidence that the Beneficiary was employed abroad in a managerial capacity. 
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Mauer of F-D-
The Form 1-140, Immigrant Petiti on for Alien Worker , must includ e a statement from an authorized 
official of the petitioning United States emp loyer which demon strates that the beneficiary has been 
employed abroad in a manag erial or executive capacit y for at least one year in the three yea rs 
preceding the filing of the petition , that the beneficiary is coming to work in the United State s for the 
same employer or a subsidiary or affi liate of the foreign employer, and that the pro spective U.S. 
emp loyer has been doing busin ess for at least one year. See 8 C.F.R. § 204.50)(3). 
II. U.S. EMPLO YMENT IN AN EXECUTIV E CAPACITY 
The sole to be addressed is whether the Petitioner established that it will emp loy the Beneficiary in 
an executive capacit y in the United State s. The Petitioner does not claim that the Beneficia ry will be 
employed in a managerial capacity. The refo re, we restric t our analysis to whether the Beneficiary 
will be employed in an executive capacity. 
"Executive capacit y" is defined as an assigrunent within an organi zation in which the employee 
primarily: directs the mana gement of the orga nizatio n or a major compone nt or func tion of the 
organization ; establishes the goals and policies of the organization , compo nent, or function ; 
exercises wide latitude in di scretion ary dec ision-m aking; and receives only general super vision or 
direction from higher-le vel executiv es, the board of directors , or stock holders of the orga nization. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 110l(a)(44)(B). 
The regulation at 8 C.F.R. § 204.5(j)(5) requir es the Petition er to submit a state ment which clearly 
describes the duties to be performed by the Beneficiary. Beyond the requi red desc ription of the job 
duties , we review the totality of the evidence when examining a beneficiary' s claimed executive 
capacity , including the compa ny's organizat ional structure, the duti es of a beneficiary's subord inate 
employee s, the pre sence of other employees to relieve a beneficiar y f rom perform ing operational 
dutie s, the nature of the business, and any other factors that will contribut e to understa nding a 
beneficiary 's actual duties and role in a business. 
Accordingly , our analysis of this issue will focus on the Benefici ary' s dut ies. as well as t he 
Petition er' s staffing levels and reporti ng structure. 
A. Duties 
The Petitioner must show that the Beneficiary will perform certain high -level respon sibilitie s 
consiste nt with the statutory definition of exec utive capacity. Champion World. Inc. v. INS, 940 
F.2d 1533 (9th Cir. 199 1) (unpublished t able decision). In addition, the Petitioner mus t prove that 
the Beneficiary will be primarily engaged in executive dutie s, as opposed to ordinary operational 
activitie s alongside the Petitioner 's other emp loyees. See Family Inc. v. USC!S, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In a letter attributed to , vice general manager, the Peti tioner provided a two-page job 
description tor the Beneficiar y, which is summarized below: 
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Mauer of F-D-
15% Preside over meeting s o f directors and manager s 
15% Establish the compan y's mission, policies , procedure s, and set goals 
20% In charge of compan y's overall operations with discretion ary decision-mak ing 
5% Determine the · internal organizational mechanism to effectively maximize 
profit and reduce operation s costs 
15% Create systems and procedures to improve services to customer s and establish 
good relationships with leaders in the industry 
10% Supervise and motivate department heads , including hiring , promoting, and 
discharging emplo yees 
20% Review financial statements, sales and activity reports , and other d ata to 
measure productivit y a nd goals achievement in orde r to maximize cost 
reduction and implement program improvement 
The Petitioner also provided a "glance of [the Beneficiary's) daily activities," by describing his 
typical day . The Petitioner stated that he: holds dail y meeting s with department managers and 
reviews their reports ; oversees the performance of each department and analyzes the company's 
"overall operations"; reviews busine ss documents and attend s meetings ; supervises company 
tinances and provides "strategic leadership regarding potential acquisition , mergers, investments" ; 
and is in daily contact with the CEO of the Petitioner's parent compan y. 
In a request for evidence (RFE), the Director advised the Petitioner that the job duties and "daily 
activities" were described in general and ambiguous terms, and were therefore insufficient to 
establish that the Beneficiary would perform primarily executive duties. The Director requested a 
letter from the Petitioner with a more detaile d description of the spec ific daily tasks the Beneficiary 
would perform . In response to th e RFE, the Petitioner submitted a n
ew lette r, also attributed to 
which was identical in content to. the letter submitted in support of the petition and 
therefore non-responsive to the Director 's request for a more detai led description of the 
Beneficiary 's duties. 
We agree with the Director's determination that the job description provid ed at the time of filing, 
and again in response to the RFE, was insufficient to establish what the Benefic iary would be doing 
on a day-to-day basis. The Petitioner described the Benefici ary's position in over ly broad and 
repetitive terms . For example, the Petitioner indicated that the Beneficiary would hold meeti ngs 
with department heads , overse e 
and evaluate the department heads, oversee the operation of each 
department, supervise and motivate the department heads , and confer with the department heads , but 
listed each o f these as separate job duties. As a result, the descript ion conveyed the Beneficiar y's 
senior role in the compan y, but did not provide adequate insight into the nature of his specific daily 
tasks or the amount of time he actually spends on any clearly defined duty. 
2 The Petitioner's payroll records show that 
the RFE in October 201 7. 
left the company in October 20 16. The Petitioner responded to 
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Matter of F-D-
The initi al job description also included dutie s that, without more detail, suggested the Beneficiary' s 
involvem ent in non-execut ive func tions. For exa mple, the Petitioher ind icated that the Beneficiary 
is expected to write dail y reports to the parent company, attend client meetings, resolve confl icts 
with customers, oversee the work flow in the warehou se, resolve package process ing problems, 
increa se the s peed of packa ge processing, develo p "benefici al relatio nships," and supervise finances. 
Based on the limited inform ation provided , we cannot determin e that these duties could be cla ssified 
as executiv e in nature or the actu al amount of time the Benefici ary would spend on these tasks. 
On appe al, the Petitioner submi ts a t hird letter attributed to Again, since the supporting 
evidence indi cates that this indi vidual had l eft the compan y more t han a year prior to the date o n the 
letter, it is uncl ear who actually prepared this statement on the Petitioner's behalf and its probative 
value is limi ted. This version ofthe Benefi ciary 's job description lists the following duti es: 
• ·Convene meetin gs with department heads and discuss with them on budgets, 
operation cost, logistic s, personn el, sales and marketing, quality cont rol and 
distribution issues. ( 1 0%) · 
• Based on current eco nomic and marketing conditi ons, establish s trategi es and 
effec tive mark eting solutions to impr ove the company ' s p rofit margins and 
market share. (5%) · 
• Establish the comp any' s mission , polici es, procedur es and set goals to optim ize 
business opportun ities and growth. (l 0%) 
• Execute the strateg ic p lans and exercises discretion ary deci sions on business 
strategies and ove rall direction of the company. (1 0%) 
• Ove rsee and eva luate the performan ce of Vice General Manager, Marketing 
Department , Admini strative Department , and Warehou se Department. (1 0%) 
• Give direction and leadership towa rd the o rganizati on's achi evement in mission, 
strategy and obj ectives. (5%) 
• Receive general superv ision from the Board of Dire ctors a nd establish the U.S. 
compan y's mana gement policie s and planning processes for expansion into new 
markets. (1 0%) 
• Exe rcise di scretion over the day-to-day operations of the company. ( 1 0%) 
• 'Supervise and motivate department heads. to execut e and acco mp lish assigne d 
tasks. (5%) 
• Rec ~uit , termin ate, evaluate and promote staff based on their j ob performance, 
qual.ifications, contrib utions and evaluations made by department heads. (5%) 
• Confe r with department heads on a month-to-m onth basis to establish n ew 
monthl y g oal s, analyze past performanc e and effective solution s to performance. 
(5% ) . 
• Analyze and approv e department heads ' recommend ations to maximize effic iency 
and output for confirm ation. of feasibili ty of operation al plans . . . . (1 0%) 
• Based on operat iona l p lans and projected future gro wth and busine ss goals, . 
eva luate requ ests made by departm ent heads t o determ ine whether new systems 
need to be implemented. ( 5%) 
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Maller of F-D-
This description is no more detailed than the one provided previously and does not overcome the 
Director's reasons for denial. The record does not contain examples of policies or procedure s the 
Beneficiary has established, strateg ic plans he expects to execute, systems he will impleme nt, or 
departmental reports he reviews to make executive decisions. Rather , the Petitioner has simply re­
worded some parts of the description and removed tasks that appear to fall outside of the defini tion 
of"executive capacity." However, reciting a beneficiary's vag ue job respo nsibilities or broadly-cast 
business objectives is not sufficient ; the regulations require a detailed description of the 
beneficiary's daily job dutie s. The actual duties themselves will revea l the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sav'a, 724 F. Supp .. 1103, 1108 (E.D .N.Y. 1989), qff'd, 905 
F.2d 4 1 (2d. Cir. 1990). Here, the Petitioner has not provided the necessary detail or an adequate 
explanation of the Benefi ciary' s activities in the course of his daily routine. 
The fact that the Benefi ciary will direct a business as its senior emp loyee does not necessarily 
establish eligibility for classification as a multin ationa l e xecutive. By stat ute, eligibi lity for this 
classification requires that the duties of a position be "primari ly" execu tive in nature. Section 
101 (A)( 44) of the Act. Even though the Beneficiary may exercise discretion over the Petitioner's 
operat ions and possess authority with respect to discret ionary dec ision-making, the position 
description alone is insufficient to establish his employment will be in an execu tive capacity. 
Whether the broad duties attributed to the Beneficiary qualify as execu tive in nature depends in large 
part on whether the Petition er established that he would have sufficient subordinate staff to supervise 
and perform the day-to-d ay company activi ties he is claimed to oversee or direct As discussed 
further below , the Petitioner has not shown its a bility to relieve the Beneficia ry from significant 
involveme nt in the operational tasks required to opera te its business . 
B. Staffing and Organizational Structure 
If staffing levels are 
used as a factor in determining whether an individual is acting in a manager ial 
or executive capacity , U.S. Citizenship and_Imm igration Services (USC IS) must take into acco unt 
the reasona ble needs of the organization, in light of the overall purpose and stage of deve lopme nt of 
the organ ization. Section 101 (a)( 44 )(C) of the Act. 
The Petitioner_ states that it is engaged in logistics and internationa l t rade from its headquarters 
located in California and claimed to have I 0 employees at the time of tiling. The Petitioner also 
mentioned at the time of filing that it has an additional location in Oregon . The 
Petitioner provided a warehouse and office lease for its California location, and a retail store lease 
for its Oregon location. The Petitioner exp lained that it provides logistics solutions for interna tional 
e-commerce, by allowing foreign custome rs to purchase items o n-line and have them delivered to 
the Petitioner's U.S. warehouse for packaging and shipment overseas. 3 
3 A "Company Flow Chart" subm itted with the petition indicates that customers also order items for the Petitioner to 
directly purchase for them in the United States. In the "Tenant Business Information" section of its latest lease 
agreement, the Petitioner indicated that it sources 50% of its products in California from etc." 
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Malter of F-D-
The Petitioner's organizational chart shows that the Beneficiary supervises a vice general manager, 
who, in tum, supervises a marketing department manager, administrative department manager, 
warehouse manager, and a contracted accounting firm. The lower level employees on the chart 
include a sales representative in the marketing department, an administrative assistant in the 
administrative department, and three workers in the warehouse department (two packaging workers 
and one processing worker). Finally, the Petitioner stated that it has a vacancy for a logistic analyst 
position in its warehouse department. The Petitioner's payroll records show that the company 
actually had nine employees at the time of tiling in April 2016, as the individual identified as the 
"processing worker" did not receive any wages after February 2016. 
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 IOI(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because he "directs" the enterprise as the owner or sole managerial 
employee. 
Here,' although the Petitioner's chart shows two tiers of managers under the Beneficiary, the 
. Petitioner has not shown that the he would be primarily directing the management of the company or 
that the company had sufficient stafTto relieve him from involvement in its day-to-day operations. 
We note that both the warehouse manager and sales representative identified on the organizational 
chart are residents of Oregon,4 where. it appears the Petitioner operates or was operating a retail shoe 
and clothing store. The Petitioner did not directly acknowledge this retail operation beyond 
submitting the store lease. Further, the job descriptions provided for the warehouse manager and the 
sales representative suggest that they work in the California-based headquarters and not in a retail 
environment, and therefore appear to be inaccurate. The Petitioner must resolve this ambiguity 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). 
Therefore, it is unclear who is actually managing the Petitioner's California warehouse or 
performing the sales functions attributed to the sales representative. In addition, the Petitioner has 
not shown that the Oregon-based sales representative actually reports to the marketing manager or 
that the marketing manager is performing managerial or supervisory duties. Rather, it appears that 
the marketing manager was the only employee available to assist with customers in the Petitioner's 
California-based international logistics business. 
4 This determination is based on the addresses provided on the employees' IRS Forms W-2, Wage and Tax Statement, 
for 2016. The retail lease agreement indicates that the claimed warehouse manager is the "Branch Administrator" for the 
Oregon store location. 
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We take into account the reasonable needs of the organization and acknowledge that a company's 
size alone may not be the only factor in determining whether the Beneficiary is or would be 
employed in a managerial or executive capacity. See section 10l(a)(44)(C) of the Act. However, it 
is appropriate 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. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. 
v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
At the time of filing, only seven workers, including the Beneficiary, were working at the Petitioner's 
headquarters, and the Petitioner has not shown how two administrative employees, a "vice general 
manager," a marketing manager, and two packaging employees were able to relieve the Beneficiary 
from significant involvement in the non-executive, day-to-day duties required to provide the 
company's products and services. The Petitioner reasonably requires staff to supervise its 
warehouse operations, sell its services, deal with customer service issues, handle logistics activities 
associated with shipment and customs, process orders for shipment, and purchase products for its 
customers, as outlined in the "company flow chart" mentioned above. The Petitioner has not shown 
that the staff in place at the time of filing performed any of these necessary functions and therefore 
has not met its burden to show how it would relieve the Beneficiary from spending a large amount of 
his time on non-executive duties. 
In addition, 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. 
§ l 03 .2(b )(I). Here, although the Petitioner showed that it employed nine of the ten employees on 
the organizational chart at the time of tiling in April 2016, six of those nine employees left the 
company between May and October 2016. Only the Beneficiary and the two administrative 
employees remained with the company at the end of 2016. The Petitioner hired additional staff later 
in 2016 and in 2017, but it did not submit an updated organizational chart to show which employees 
were replaced while the petition was pending. Even if the Petitioner had established eligibility at the 
time of filing, additional evidence would be needed to establish that the petition was approvable at 
the time of adjudication in 2017. 
On appeal, the Petitioner submits copies of performance appraisals COljlpleted by the Beneficiary in 
July 20165 The Beneficiary's overall authority over the company and discretion to select, hire, 
appraise, and supervise employees is noted, but, for the reasons discussed, the Petitioner has not 
established how he would spend his time primarily on the broad policies and goals of the business, 
rather than participating in its day-to-day operations. The evidence does not support the Petitioner's 
claim that he would perform primarily executive duties under the extended petition. 
5 The Petitioner also submits an exhibit it refers to as "Administrative Appeals Office's Brief on Argument against any 
Hybrid Form of 'Executive-Managerial Capacity 'for L-IA & £13 Visas." The referenced document is an amicus brief 
submitted to this office by a third party in 2015. The Petitioner did not explain its significance in this matter. We note 
that the Petitioner did not make a "hybrid" executive-managerial capacity claim with respect to the Beneficiary's U.S. 
employment capacity. Our analysis of the evidence reflects the Petitioner's consistent claim that the Beneficiary was and 
would be employed in an executive capacity. 
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Matter of F-D-
III. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-D-, 10# 1318807 (AAO May 31, 20 18) 
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