dismissed EB-1C Case: Logistics And International Trade

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF Y-1-L- CO. 
Non-Precedent Decision of the 
AdministratiYe Appeals Office 
DATE: DEC.18,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, 1 a logistics and international trade company, seeks to permanently employ the 
Beneficiary as its chief executive officer (CEO) tmder 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: (1) it will employ the Beneficiary in the United States in a managerial 
or executive capacity; and (2) that it had been doing business as defined in the regulations for at least 
one year at the time of filing.2 The Petitioner subsequently filed t,vo motions to reopen, which the 
Director dismissed. 
On appeal, the Petitioner submits additional evidence and asserts that the Director did not consider 
all relevant and probative evidence and denied the petition in error. We issued a request for 
additional evidence and notice of intent to dismiss after a preliminary review of the record and have 
incorporated the Petitioner's response into the record. 
Upon de novo review, we will withdraw the Director's findings that the Petitioner did not establish 
that it was doing business.3 However, as the Petitioner has not overcome the remaining ground for 
denial, we will dismiss the appeal. 
1 The Petitioner stated its company name as on the Form 1-129; however. the 
evidence of record indicates that its registered name in California is 
2 The Director also stated that "the evidence does not establish that the petitioner and the ben-eliciary's foreign employer 
established a 50-50 joint venture in which both companies have equal control and veto power over the entity:· However, 
the Petitioner did not claim to have a qualifying relationship based on a 50-50 joint venture. The Director did not further 
address the issue of whether the Petitioner has a qualifying relationship with the Beneficiary's foreign employer or 
specifically state that the petition was denied for this reason. The Petitioner has ·consistently claimed that it is a 
subsidiary of the foreign entity and submitted sufficient evidence to suppo11 its claim. 
·1 The Petitioner submitted copies of its corporate federal tax returns for lhe 2014.2015. and 2016 tax vears and sufficient 
supporting documentation to establish that it had been doing business for at · least one year at th·e time of fifing in 
February 2016. See 8 C.F.R. § 204.5U)(3){i)(D). 
Malter of Y-1-L- Co. 
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)( I )(C) of the 
Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
otlicial 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 beneficjary 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(j)(3). 
IJ. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director determined that the Petitioner did not establish that the Beneficiary would be employed 
in the United States in a managerial or executive capacity. On appeal, the Petitioner asserts that the 
Beneficiary will be employed in an executive capacity and does not claim that his position is 
managerial in nature. Therefore, we restrict our analysis to whether the Beneficiary will be 
employed in an executive capacity. 
''Executive capacity" is defined as an assignment within an organization in which the employee 
primarily: directs the management of the organization or a major component or function of the 
organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section IOl(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
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 executive 
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 lo 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 executive capacity. Champion World. Inc. v. INS, 9.40 
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Malter of Y-1-L- Co. 
F.2d 1533 (9th Cir. l 991) (unpublished table decision). In addition, 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); Champion World, 940 F.2d 1533. 
At the time of filing, the Petitioner provided the following breakdown of the Beneficiary's duties as 
CEO: 
A) Oversee and approve all major operations of the company. 
1. Analyze and evaluate the performance of the entire company. (15%) 
2. Based on his findings, prioritize identified issues that need to be addressed 
and then meet with the heads of departments to present the issues and 
proposed solutions .... (5%) 
3. Monitor implementation of solutions for effectiveness in resolving the 
identified issues and regularly receive reports from department heads from 
each store as to the effectiveness of the approved solutions. (5%) 
B) Conduct regular meetings with managerial and supervisory stafl: listen to their 
reports and feedback, e~adicate problems, and make changes to existing policies 
and procedures. 
1. Hold meetings with department heads to establish ways to maintain the 
quality of services and ability to meet the demands of customers and set 
goals. Listen to their reports on sales performance, quality control, and 
· feedbacks from customers. (5%) 
2. Develop expansion plans and make changes to existing policies and 
procedures to fix problems relating to delay of shipments, increase of tax 
rates, custom clearance processing speed and timeline. (5%) 
3. Establish policies to better organize all branches' operating system and 
settle complaints from customers, lost packages, and compensation issues. 
(5%) 
C) Supervise and motivate managerial staff to execute and complete assigned tasks. 
I. Based on content of regular departmental reports, check if sales and 
performance goals are met and determine with department head what the 
causes were for the shortfalls. (5%) 
2. Upon determination of an issue regarding the inability to fulfill orders, 
have the store managers present the issues and then make decisions on 
how to prioritize the resolution of the conflicts or issues and direct 
managers to carry out that decision. (5%) 
3. Rotate from stores to stores [sic] and supervise and monitor staffs and 
assist in task completions. (2.5%) 
4. Review proposals from store managers and identify strategies on how to 
maximize stores functionality and increase sales. (2.5%) 
D) Set long term goals and objectives and establish strategies and formulate policies 
for business expansion and profit maximization 
1. Determine how American and China policies and legislation is affecting 
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Matter <!/ Y-1-L- Co. 
the market and determine the best operational policy for business 
expansion and profit maximization. (5%) 
2. Analyze and approve suitable online marketing advertisement placements 
to maximize Company exposure and gain new customers in the industry. 
(5%) 
3. Establish strategies and analyze current market needs, pricing and better 
serve existing and prospective customers. (5%) 
4. Formulate management policies that connect and benefit both the U.S. 
subsidiary and China parent company. (5%) 
E) Establish strategies and formulate policies to fulfill company goals and objectives 
1. From forecasted data and previous performance indicators. collaborate 
with store managers to brainstorm and assess new ideas, plans, and future 
possibilities to fulfill company goals and objectives. (5%) 
2. Based on operational plans and projected future growth, evaluate requests 
made by the respective store managers and finalize a profitable budget 
planning for each operational year. (5%) 
3. Re-confer with department heads to discuss and analyze recommendations 
on ways to maximize efficiency and growth for confirmation of feasibility 
of operational plans and the probability of meeting expected effectiveness 
markers. (5%) 
F) Exercise authority to hire, terminate, evaluate, and promote company staff based 
on their performance, qualifications, and contributions. 
1. Confer with department managers on a monthly basis to establish new 
monthly goals and analyze·past performance .... (5%) 
2. Evaluate the performance of staff based on previously established criteria 
via a numerical score for each criterion. (5%) 
The Petitioner's initial support letter also described the Beneficiary's "typical day," noting that he 
would spend: 90 minutes meeting with "all managers"; 90 minutes meeting with the general 
manager to discuss any issues and problems brought up during the previous meeting; one hour 
having lunch and reviewing business documents; two hours reviewing and formulating management 
policies; one hour giving instructions to subordinates to solve problems such as courier, customer 
service issues, e-commerce sales targets, and pricing schedules; and one hour communicating with 
the foreign parent company's operations manager. 
The Petitioner subsequently re-submitted this same position description in response to an RFE and 
on motion, even after the Director found that the Petitioner submitted a "set of broad job 
responsibilities" that does not "convey an understanding of what the beneficiary would actually be 
doing on a daily basis." We agree with this assessment of the position description. 
While the Petitioner submitted a lengthy description, most of the duties listed therein are repetitive 
and vague and therefore do not provide insight into the nature of the Beneficiary's day-to-day tasks 
as the CEO of a logistics and e-commerce business. Rather, the duties described, which broadly 
state the Beneficiary's responsibility for development of strategies, policies, goals, and objectives, 
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A,falfer of Y-1-l- Co. 
frequent meetings with "department heads," and performance monitoring, could describe any senior 
employee in any company and do not give a sense of the Beneficiary's actual duties within the 
context of the Petitioner's business. Further, the Petitioner's summary of the Beneficiary's "typical 
day" was even less detailed, did not add clarity to the broad breakdown of his responsibilities, and is 
not consistent with that breakdown, as it indicates that he spends a full 50% of his time meeting or 
conferring with subordinates or the foreign entity's staff, and does not include many of the other 
duties attributed to him. 
The Petitioner did. not provide explanations or evidence of the policies, strategies, and objectives the 
Beneficiary has implemented or is expected to implement, issues he has resolved, or information 
regarding the types of discretionary decisions he is required to make in support of its claim that these 
broad duties, which resemble the definition of "executive capacity," will occupy most of his time on 
a regular and ongoing basis. Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily executive or managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), afl'd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, as discussed further below, some of the Beneficiary supervisory responsibilities are not 
consistent with the Petitioner's claim that he has two tiers of managerial employees below him who 
relieve him from directly supervising store personnel. Specifically, the Petitioner claims that he 
supervises a general manager, who supervises a logistics manager, who, in turn, supervises the store 
staff. Given this structure, it is unclear why the Beneficiary is required to rotate between stores to 
supervise and assist the staff with their tasks, or why store managers would directly present 
proposals and issues to the Beneficiary for resolution, rather than reporting to their claimed direct 
supervisor or to the general manager. 
Reciting a beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sutlicient; the regulations require a detailed description of the beneficiary's daily job duties. The 
actual duties themselves will reveal the true nature of the employment. Fedin Bros., 724 F. Supp. at 
1108, l!{f'd, 905 F.2d 41 (2d. Cir. 1990). Herc, the Petitioner did not provide the necessary detail or 
an adequate explanation of the Beneficiary's activities in the course of his daily routine. 
Whether the broad duties attributed to the Beneficiary qualify as executive in nature depends in large 
part on whether the Petitioner established that he would have sutlicient subordinate staff to supervise 
and to perform the day-to-day company activities he is claimed to manage or direct. The fact that 
the Beneficiary will direct a business as its senior employee does not necessarily establish eligibility 
for classification as a multinational executive. By statute, eligibility for this classification requires 
that the duties of a position be "primarily" executive in nature. Section 10 I (A)( 44)(8) of the Act. 
Even though the Beneficiary ~1ay exercise discretion over the Petitioner·s operations and possess 
authority with respect to discretionary decision-making, the broad position description alone is 
insufficient to establish his employment will be in an executive capacity. 
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Maller of Y-1-l- Co. 
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 I0l(a)(44)(C)"ofthe Act. 
According to its business plan, the Petitioner operates as a logistics services provider serving 
importers and exporters who ship goods between the United States and China, and an e-commerce 
business that offers various products to the Chinese market. _At the tim9 of filing , it provided 
evidence that it has an office and warehouse in California and branch store locations in 
and California. 
The Petitioner stated on the Form 1-140 that it had 12 employees in February 2016. It submitted an 
organizational chart which depicts the Beneficiary as CEO with one direct subordinate, a general 
manager. The chart shows that the general manager supervises a department of logistics manager , a 
department of e-commerce manager, and a receptionist and contracted accountant in the department 
of administration . The chart further shows that the logistics department manager supervises a 
"division manager " for the and store locations and a "customer service" 
employee at the and locations, while the e-commerce depatiment manager 
supervises a warehouse manager, an online customer service representative, and a·courier specialist . 
Finally, the organizational chart identified vacancies for a courier specialist in the logistics 
department, a second online customer service employee , and a customer service department 
manager .4 
The record contains the Petitioner's state quarterly wage report for the first quai1er of 2016 which 
confinns that the employees on the chart worked for the company at the time of filing. However, 
most of the employees, with the exception of the Beneficiary, the general manager , and the 
warehouse manager, left the company later in 2016 . In fact, the Irvine store employee and the on line 
customer service employee, earned only $3158 and $2595, respectively, in 2016, and it is unclear 
whether they were employed full time as claimed when the petition was filed. At the time the 
Petitioner responded to the Director 's request for evidence in April 2017, only the Beneficiary and 
the general manager remained with the company and all other positions !1ad been filled by new hires . 
The Petitioner submitted a brief summary of duties for each employee on the initial chart , but some 
of these descriptions were not credible based on the nature of the company. For example, the 
Petitioner indicated that three of the four store "division managers" /customer service employees are 
responsible for "obtaining profitable results through the sales team by developing the team through 
~ The Petitioner submitted an updated organizational chart in response to the RFE in April 2017. That chart showed that 
the Petitioner had added the positions of division manager and department of administration 
manager, and that it had filled the previously vacant customer service manager and onlinc customer service positions. It 
also indicated that the and locations each employed a "division manager" rather than a "customer 
service" employee. However, 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)(I ). 
6 
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Matier <f Y-1-l- Co. 
motivation, counseling and product knowledge development," "developing plans to acquire new 
customers or clients through direct sales techniques, e-commerce and business-to-business 
marketing," "assign sales territories and set sales quotas," plan and coordinate training programs and 
supervise staff. However, each of the Petitioner's branch stores was staffed solely by a division 
manager or customer service employee with no subordinate staff. Further , each location is 
responsible for selling goods and accepting and processing packages for shipment from individual 
customers and the Petitioner did not explain how the division managers would have sales territories 
or quotas to set, teams to motivate, or e-commerce or business-to-business marketing duties to 
perform . 
In addition, for reasons that were not explained, the Petitioner assigned different duties to the fourth 
store employee (for the location), noting that she is responsible for "industry penetration," 
resolving customer issues, creating a good relationship with customers, participating in team 
meetings, developing customer service skills, and rotating to different division locations to monitor 
company operations . It is unclear how the sole ernployee at this location could rotate to other stores 
with no one available to run this branch . 
The Petitioner also provided a position description for its contracted accountant indicating that he is 
significantly involved in its day-to-day operations by performing duties such as preparing general 
ledger, maintaining records and files, collecting and analyzing information from the company's 
departments and systems, reconciling accounts, preparing payments, requesting disbursements, and 
submitting invoices to customers. However , the Petitioner did not provide a copy of its contract with 
the accounting firm or copies of IRS Forms I 099 issued to him. In fact, it submitted only two 
invoices from 2017 as evidence of his services. The Petitioner's tax returns show that it spent only 
$4268 and $3211 on accounting expenses, respectively, in the 2015 and 2016 tax years. Based on 
these figures, the record does not sufficiently support that he performed the full scope of services 
claimed at the time of filing . 
Many of the other employees' duties, including the general manager's, were described in vague and 
general terms which provided little insight into how work is allocated among staff and to what extent 
the company's personnel are able to relieve the Beneficiary from involvement in the day-to-day 
operations of the shipping, logistics, store operations, marketing, and e-commerce aspects of the 
business. The Petitioner re-submitted the same duty descriptions for the Beneficiary's subordinates 
in response to the RFE. 
Finally, the Petitioner submitted a ''flow chart" that was intended to depict how the company 
operates . The chart shows that transactions begin with "product sourcing/purchasing," receipt of 
online orders, and receipt of products at the four branch stores. The next steps including checking 
contains /products/inventory, product registration, product listing on the e-commerce website, 
sending out invoices and collecting payments, storing and packaging products in the warehouse or 
store, material declarations, preparation of bills of lading, product/container dispatches from the 
warehouse , provision of 24 hour shipment and tracking updates overseas, audit clearance, courier 
specialist delivery, and customer notifications and resolutions. However, these operational activities 
did not appear to present a complete overview of the Petitioner's business, as the Petitioner's stores 
7 
Matter of Y-1-L- Co. 
collect and ship packages for individual walk-in customers rather than sourcing products and the 
Petitioner also claims that they display and sell items in their stores. The chart did not identify the 
employee(s) responsible for each step of the process and many of the activities listed therein were 
not assigned to any specific employee. 
In the denial decision, the Director acknowledged the Petitioner's organizational chart, but, 
referencing the Beneficiary's overly broad job description, found the evidence as a whole 
insufficient to establish that the Petitioner's· subordinate staff would relieve the Beneficiary from 
significant involvement in the non-executive activities of the company. On appeal, the Petitioner 
argued that the Director's decisions, including both the initial decision and the subsequent dismissals 
of the Petitioner's motions; were lacking an analysis of the supporting evidence submitted to 
establish the staffing and structure depicted in the organizational chart. 
When denying a petition, a dire~tor has an affirmative duty to explain the specific reasons for the 
denial; this duty includes informing a petitioner why the evidence did not to satisfy its burden of 
proof pursuant to section 291 of the Act. 8 C.F.R. § I 03.3(a)(l )(i). We agree with the Petitioner 
that the Director's mere acknowledgement that the Petitioner provided an organizational chart did 
not provide sufficient analysis of the company's reasonable needs and staffing or why the evidence 
was deemed to be insufficient. Therefore, after conducting a preliminary review of the record, we 
issued a notice of intent to dismiss and request for evidence (NOID/RFE) allowing the Petitioner to 
address specific deficiencies in the record.5 
Specifically, we requested a more detailed explanation of the Petitioner's business model to support 
its claim that most of the day-to-day operations of the company were delegated to subordinate 
personnel. In part, we asked the Petitioner to explain the duties of the division (store) managers, to 
explain how its four stores operate with only one employee each, and to further explain who was 
handling the functions outlined in the flow chart at the time of filing. 
In response the Petitioner has submitted an overview of its business model and a slightly more 
detailed flow chart. The Petitioner maintains that it was operating with a five-tier structure at the 
time of filing with the Beneficiary at the top tier in an executive position. It also explains that its 
services at the time of filing included: Type 1 (customer purchase products and use the Petitioner's 
shipping service) and Type 2 (customers use the Petitioner's service to ship personal packages). The 
Petitioner maintains that the general manager, logistics manager, and e-commerce manager oversee 
the company's day-to-day activities so that the Beneficiary can focus on his executive duties. 
However, as noted above, the Beneficiary's own job description indicates that he supervises the store 
managers, that they report to him with issues and proposals, and that he rotates between stores 
supervising staff and assisting them with operations. The Petitioner has not reconciled this apparent 
inconsistency. 
5 In our NOID/RFE, we also requested additional evidence pertaining to the Beneficiary's employment abroad and the 
ownership of the foreign employer. The Petitioner's response adequately addressed our concerns with respect to these 
two issues and we will not discuss them further. 
8 
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Maller ofY-1-L- Co. 
The Petitioner also provides an additional explanation as to how each sector of its business operates 
(in-store sales and shipping operations and c~commerce shipping operations). However, there 
continue to be inconsistencies between the duties stated in the employees' job descriptions and the 
information provided in the flow chart. For example, the flow chart indicates that the online 
customer service representative, warehouse manager, and courier specialist are all involved in 
researching products and sending purchasing proposals to the e-commerce manager for approval, but 
there is no mention of these sourcing or purchasing duties in the employees' job descriptions. The 
flow chart indicates that the courier specialist is responsible for picking up packages from divisions, 
packaging products purchased through the e-commerce website, and handling the entire shipping 
and delivery process including following up with freight forwarding, trucking companies, auditing 
clearance through Chinese customers, and following up with overseas carriers . Again, most of these 
duties are not reflected in the duty descriptions that the Petitioner has submitted for the subordinate 
employees. Further , it is unclear who one employee could perform all of these functions on a day­
to-day basis, particularly considering the amount of time it would reasonably take to make package 
pickups at each of the Petitioner's stores , one of which is located t'wo hours from the Petitioner's 
main office. 
The Petitioner also explains that "due to the nature of the business, personnel changes are relatively 
greater than other industries," but does not further explain how it manages this significant employee 
turnover, such as when the sole employee of one of its branch stores leaves the company . In fact, 
although the Petitioner stated that it remained fully staffed at the time of the RFE response , many of 
the new employees received lower wages than their predecessors who held the same position. For 
example, in the first quarter of 2017 , the employee identified as the warehouse manager earned 
$2177 and his subordinate courier specialist earned $2728, both commensurate with part-time 
employment. The Petitioner claimed five store division managers at that time, but they earned the 
following wages during the quarter: $395, $841, $2177, $2446, and $4670. In fact, in the first 
quarter of 2017, only two employees (not including the Beneficiary and general manager) who 
earned wages consistent with full-time employment. 
We had specifically requested that the Petitioner explain how its store locations were able to operate · 
with only one employee each. In response, the Petitioner states that, at the time of filing, its 
and stores had recently opened in December 2015 and January 2016, respectively, and 
noted that all of the stores were fairly new and still hiring additional employees. The Petitioner 
states that it hired three new full-ti me employees to work in its stores in March 20 I 6, but does not 
· claim that any store had more than one employee at the time of filing. It also provides a chart that 
indicates the number of employees per store and the store operating hours, but does not clarify when 
this structure was . in place. The Petitioner appears to be indicating that one store had one employee , 
one had two employees , one had three employees, and one had four, which was clearly not the case 
at the time of filing. The organizational charts submitted at the time of filing and in response to the 
Director's RFE both showed one employee per store. 
The Petitioner also explains its procedure for opening a new store, noting that the logistics employee 
hires employees for new stores, directs the or division manager to 
provide on-site training and supervise the preparation of the ne,v division, including city permits, 
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1Ha1ter of Y-1-l- Co. 
remodeling and systems installation, and then transfers the newly trained staff to the new division, 
where they continue to receive supervision and support from the two remote division managers. 
However, the Petitioner did still not explain how one person is able to singlehandedly run one of its 
stores, particularly since the Petitioner now indicates that the two division managers were 
supervising the customer service employees in stores that arc some distance from their own stores. 
The Petitioner indicates that each store displays and sells products and arranges for their shipment 
and also receives customer packages for shipment and requests· pickup from the warehouse. 
However, the job descriptions provided for the store employees, which, as noted above, contain 
references to subordinates sales teams and sales territories, clearly do not describe their actual duties. 
Two of the stores are claimed to be open seven days per week with only one employee, and one of 
the store employees at the time of filing was claimed to rotate to other stores. For these reasons, the 
Petitioner's response to our NOID/RFE does not sufficiently address our concerns regarding the 
store staffing or show how the stores were adequately staffed, particularly in light of the frequent 
turnover noted above and the Petitioner's claim that new store manager hires are expected to train in 
one of the stores before assuming their posts. 
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, 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 they "direct" the enterprise as the owner or sole managerial employee. Here, 
although the Petitioner consistently indicates that the Beneficiary develops its goals and policies, 
makes discretionary decisions, and directs the entity as a while, it has not supp011ed its claim that he 
primarily performs these higher-level functions, and has not sufficiently shown how he is relieved 
from involvement in the day-to-day operations of the company. 
We must take into account the reasonable needs of the organization if considering the Petitioner's 
staffing levels; 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 
101(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 perfom1 the 
non-managerial or non-executive operations of the company. Family Inc. v. USC/S, 469 F.Jd 1313 
(9th Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C . .2001). The size of a 
company may be especially relevant when we note discrepancies in the record. See Systronics, 153 
F. Supp. 2d at 15. 
The Petitioner operates multiple lines of business from five separate locations with a staff of 12 
employees, and the evidence indicates that all but one of the subordinate positions, including the 
claimed "tier 3" and "tier 4" managerial positions, experience a high rate of employee turnover that 
would reasonably leave the Petitioner frequently recruiting and training new staff while 
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Matter of Y-1-l- Co. 
experiencing temporary staff shortages. Based on the nature of the business and the Petitioner's 
tlow chart, there are a substantial number of operational activities that must be performed for the 
company to function properly. Even if the company did not experience this frequent turnover, we 
cannot overlook the fact that the Petitioner has not adequately described the Beneficiary's duties, nor 
has it provided consistent and credible descriptions of duties for the subordinate staff. As a result, it 
has not met its burden to establish how the administrative, operational, first-line supervisory, and 
other non-executive duties of the business are distributed among the subordinates, nor has it 
adequately supported its claim that the Beneficiary primarily spends his time focused on the 
company's strategies, policies, goals and objectives. 
In response to our NOID/RFE, the Petitioner emphasizes that the Beneficiary is in the top tier of a 
five-tier structure, in which 7 to 9 of the I 2 employees have managerial job titles. However, as 
noted, we review the totality of the evidence, including descriptions of a beneficiary's duties and his 
or her subordinate employees, the nature of a petitioner's business, the employment and 
remuneration of employees, and any other evidence contributing to a complete understanding of a 
beneficiary's actual role in a business. The evidence must substantiate that the duties of a 
beneficiary and his or her subordinates correspond to their placement in an organization's structural 
hierarchy; artificial tiers of subordinate employees and job· titles alone are not probative and will not 
establish that an organization is sufficiently complex to support an executive position. 
Here, the evidence as a whole does not support a conclusion that the Beneficiary's subordinates are 
overseeing and performing the day-to-day administrative and operational functions of the 
multifaceted business so that the Beneficiary is able to focus primarily on executive duties. Instead, 
the Beneficiary's subordinates, including those with managerial job titles, more likely than not 
perform the actual day-to-day tasks of operating the e-commerce, shipping, and logistics business. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufficiently relieved from involvement in the day-to-day operations of the company, despite his 
senior position in the company hierarchy. Accordingly, the Petitioner has not met its burden to 
show that his duties would be primarily executive in nature as of the date of filing. 
Ill. 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 Jvfatter of Y-1-L- Co., ID# 1522889 (AAO Dec. 18, 2018) 
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