dismissed EB-1C Case: Logistics And Transportation

U.S. Citizenship 
and Inunigration 
Services 
MATTER OF R-L-LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 21. 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a logistics and transportation company, seeks to permanently employ the Beneficiary 
as its managing director under the first preference immigrant classification for multinational 
executives or managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ l 153(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 Texas 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 it submitted sufficient evidence to establish it will employ the 
Beneficiary in an executive capacity. The Petitioner maintains that the Director did not give 
sufficient weight to an expert opinion letter detailing the executive nature of the proposed position. 
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 )(1 )(C) of the 
Act. 
The Form 1-140, 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. § 204.50)(3). 
Matter of R-L- LLC 
11. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The primary issue to be addressed is whether the Petitioner established that it will employ the 
Beneficiary in an executive capacity. The Petitioner does not claim that his proposed position is 
managerial in nature. 
"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 10l(a)(44)(B) of the Act, 8 U.S.C. § l 10l(a)(44)(B). 
The regulation at 8 C.F.R. § 204.5G)(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 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 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 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. 
The Petitioner submitted essentially the same list of proposed job duties at the time of filing and in 
response to a request for evidence (RFE) in which the Director had requested additional details 
regarding the specific tasks the Beneficiary would perform on a day-to-day basis. The RFE response 
assigned percentages to duties listed in the initial description, but did not elaborate upon those 
duties. 
The Petitioner indicated that the Beneficiary would spend 60% of his time on "business planning and 
establishing and implementing sales strategies," and broke this responsibility down into nine duties, 
each requiring 4% to 10% of his time. These duties included: making overall decisions for long term 
sales goals and promotional plans; overseeing annual sales and marketing strategies and supervising 
the overall sales strategy; coordinating cooperation between the Petitioner and its foreign parent; 
creating an annual business plan and reviewing monthly business reports; supervising "the personnel 
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Matter of R-L- LLC 
of the marketing team" and determining sales targets for each client; monitoring the financial status 
of the company; directing financial and budget activities; reviewing financial statements, reports and 
performance data; and "planning, directing and coordinating the overall operational activities." 
The Petitioner stated that the Beneficiary would allocate 25% of his time to "attract new clients, 
retain current clients, and improve customer relationships." The Petitioner explained that this 
responsibility would require him to attend business meetings with potential clients or partners and 
attend industry conferences; make agreements with clients; handle contractual or project issues that 
arise between the Petitioner and its clients; supervise customer services by accommodating the needs 
of customers; and identifying customer demand and market conditions to produce optimal pricing. 
Finally, the Petitioner indicated that the Beneficiary would spend 15% off his time on "supervising 
the human resources management" of the company. Specifically, it stated that he would spend this 
time coordinating operations between departments; directing weekly conference calls with the 
Petitioner's parent company to discuss business strategies; authorizing the hiring and dismissal of 
employees; participating in recruitment, interviewing and hiring; appointing department heads and 
directing human resources activities; and supervising department heads for "Finance, Sales, 
Marketing and Warehousing." 
The Petitioner emphasized that the foregoing duties are "overwhelmingly executive duties" and 
asserted that the Beneficiary "relies on his subordinates to handle all of the menial tasks. 
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 vague and 
therefore do not provide insight into the nature of the Beneficiary's day-to-day tasks as the managing 
director of a logistics and transportation business. Rather, the duties described, which broadly state 
the Beneficiary's responsibility for development of strategies, policies, goals, and objectives, making 
business decisions regarding the company's overall operation, meeting with "department heads" to 
go over reports, and monitoring of the company's financial performance, 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. 
The Petitioner did not provide explanations or evidence of the plans, strategies, and objectives the 
Beneficiary has implemented or is expected to implement, customer service issues he has resolved, 
or information regarding the types of discretionary decisions he is required to make in support of its 
claim that high level executive duties 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), 
aff'd, 905 F.2d 41 (2d. Cir. 1990). 
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Matter of R-L- LLC 
In addition, as discussed further below, some of the Beneficiary supervisory responsibilities are not 
consistent with the Petitioner's actual structure and staffing levels. The Petitioner indicated that the 
Beneficiary manages department heads for sales, marketing, finance, and warehouse departments, 
but the Petitioner did not establish that it actually employed department heads or managers for all of 
these departments. Further, the Petitioner's supporting evidence did not corroborate its statement 
that all "menial tasks" are performed by subordinate employees; the Petitioner's unsupported claim 
that it has staff to relieve the Beneficiary from involvement in non-executive tasks is not sufficient to 
establish that his duties are primarily executive in nature. As discussed further below, the Petitioner 
stated on the Form 1-140 that it had 25 employees, submitted an organizational chart that appeared to 
show only four current employees at the time of filing, and submitted a quarterly tax filing indicating 
that it had no more than three employees at the time of filing. 
For similar reasons, the Petitioner has not established that the time the Beneficiary devotes to 
acquiring and retaining clients and maintaining customer relationships would be spent performing 
primarily executive duties. In fact, it is unclear who was expected to handle the day-to-day, non­
executive sales functions at the time of filing as the record does not contain evidence that the 
Petitioner employed the sales and marketing employees identified on its organizational chart. 
Reciting a beneficiary's vague job responsibilities or broadly-cast business objectives is not it 
sufficient; 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, ajf'd, 905 F .2d 41 (2d. Cir. 1990). Here, the Petitioner did not provide the necessary detail or 
an adequate explanation of the Beneficiary's expected activities in the course of his daily routine or 
within the context of the Petitioner's business as it existed at the time of filing. 
We acknowledge that the record contains an advisory evaluation of the Beneficiary's position 
written by an associate dean at the 
repeats the job description that the Petitioner provided at the time of filing and opines that 
the Beneficiary's job duties satisfy the statutory definition of "executive capacity," as defined at 
section 10l(a)(44)(B) of the Act. However, it is unclear what information or documentation he 
reviewed, beyond the Beneficiary's position description, in order to reach this conclusion. He states 
that he is familiar with the type of business operated by the Petitioner and the Beneficiary's position, 
but his letter does not include any specifics regarding the nature and scope of the Petitioner's 
business or its structure and staffing levels. As a result, we find his determination to be conclusory 
and based on a broad job description that lacks the details needed to establish the proposed nature of 
the Beneficiary's day-to-day duties as of the date of filing. 
We may, in our discretion , use as advisory opinion statements from universities , professional 
organizations , or other sources submitted in evidence as expert testimony. Matter of Caron Int'l , 19 
I&N Dec. 791, 795 (Comm 'r 1988). However , we are also ultimately responsible for making the 
final determination regarding a foreign national' s eligibility. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility. Id. We acknowledge the 
Beneficiary's authority over the company as its senior employee. However , for the reasons already 
discussed , the totality of the evidence does not establish that the Beneficiary ' s primary duties would 
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Matter of R-L- LLC 
be executive in nature. Because the expert evaluation was based solely on a broad job description 
and not on a review of all relevant evidence, we find that it has limited probative value. 
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 sufficient subordinate staff to supervise 
and perform the day-to-day company activities he is claimed to 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 10l(A)(44)(B) of the Act. Even 
though the Beneficiary may 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 that his employment will be in an executive capacity. 
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 10l(a)(44)(C) of the Act. 
As noted, the Petitioner stated on the Form 1-140 that it had 25 employees when the petition was 
filed in April 2017. It submitted an organizational chart identifying the Beneficiary with one direct 
report - a station manager - and indicated that both the Beneficiary and would be 
"hired upon approval." 1 The chart also included: an operation department staffed by and 
approximately eight trucking, airport ground service and customs service providers; a warehouse 
department staffed by . with additional warehouse services in and 
an administration and accounting department with one employee as well as a 
contracted attorney firm, CPA firm and IT firm; a marketing and sales team staffed by 
and a contracted or commissioned sales rep; and an unstaffed "new enterprises" department. 
We note that even if the Petitioner included sub-contractors in its employee count, it is unclear how 
it arrived at "25" as its number of employees. The Petitioner must resolve this inconsistency 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). 
The Petitioner submitted copies of 2016 IRS Form W-2s for the Beneficiary, ($4,400), and 
($17,760), and a list often sub-contractors with a brief explanation of the services they 
provide. It also provided brief position descriptions for the two documented W-2 employees , noting 
that __ was in charge of the company's finances , recording and reporting cash flow 
11 The Petitioner later e.Kplained that the Beneficiary was on a "leave of absence" from December 1, 2016, until he 
received an employment authorization document in July 2017. It appears that the Beneficiary 's spouse, was 
also on leave during this period. The Beneficiary and held L-lA and L-2 nonimmigrant , respectively , until 
November 30, 2016 and U.S. Citizenship and Immigration Services (USCIS) denied the Petitioner 's request to e~tend 
that status prior to the filing of this petition . 
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Matter of R-L- LLC 
transactions, including accounts payable and receivable, payroll, and financial reports. The 
Petitioner noted that evaluates financial approval for shipments, prepares, and 
maintains all documents related to transportation activities, and supervises the Petitioner's air and 
ocean operations. 
In the RFE, the Director requested a more detailed organizational chart, job descriptions for 
employees and contractors, evidence of payments made to employees and contractors in 2017, and 
an explanation of how the subordinate staff relieve the Beneficiary from significant involvement in 
the day-to-day operations of the company. 
In response, the Petitioner submitted an updated organizational chart showing the Beneficiary as 
managing director, as station manager, a three-person operations department 
, a warehouse department staffed by an administration and 
accounting department staffed by a sales and marketing team staffed by and 
(hired in 2018); and a "new enterprises" department with an individual "to be hired in 2018." 
The Petitioner also listed a total of 21 sub-contractors, including customs brokerages, trucking and 
airport ground services, warehouses, attorneys, CP As, an IT firm, and "network" sales contractors. 
The Petitioner provided copies of 15 IRS Form 1099s issued to subcontractors in 2017, with most 
payments under $5000. 
The Petitioner opted to submit position descriptions for only three subordinate employees. The 
Petitioner provided a revised description of job duties as Station Manager (also referred 
to as "Branch Manager"), noting that she evaluates employee performance and provides feedback, 
briefs employees on sales goals and promotions, conducts regular sales and operations meetings, 
drafts forecasts and business plans, and handles "the day to day operations of the Branch." As noted 
above, the Petitioner previously indicated that was in charge of the company's finances, 
recording and cash flow transactions, including accounts payable and receivable, payroll, and 
financial reports. It did not explain the changes made to her job description or indicate who 
performs the duties previously attributed to the position. 
The position description for the operations manager was similar to that provided 
previously, although the Petitioner added that the position is responsible to assist the branch manager 
with supervision of the company's operations and employees. Finally, the Petitioner provided a duty 
description for a sales representative noting that she provides superior customer service, 
"demonstrates products and services ," ensures that "customer quality preferences and quantitative 
demands are met," and collaborates with the Beneficiary on key client accounts and studying 
compet1t10n. The Petitioner did not provide job descriptions for the remaining operations 
department staff, warehouse staff, or administration and accounting staff 
The Petitioner provided copies of its IRS Form W-2s for 2017 indicating that it paid all eight 
employees named on the updated organizational chart during the year. However , the Petitioner ' s 
IRS Forms 941, Employer ' s Quarterly Federal Tax Return , indicate that it had one employee in the 
first quarter of 2017, three employees in the second and third quarters , and only two employees by 
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Matter of R-L- LLC 
the end of the year. Therefore, the supporting evidence does not establish that the Petitioner 
employed all of eight staff at the same time, as reflected in the organizational chart. 
For example, although the Petitioner explained in response to the RFE that was 
responsible for running the company during the Beneficiary's leave of absence from December 2016 
until July 2017, she earned only $3000 for the entire year and did not appear on the Petitioner's 
initial organizational chart. These facts suggest that she likely left the company prior to the date of 
filing. The Petitioner's accounting and administration department employee, who appears on both 
organizational charts, earned only $5000 for the entire year, suggesting that he worked only a partial 
year or very limited hours in 2017. One of the operations department employees 
earned only $4624 and does not appear to have worked for the company at the time of filing. 
The remaining two operations employees and the warehouse employee earned between $14,000 and 
$17,000 for the year, but again, it does not appear that they worked for the entire year based on the 
Petitioner's statement that the Beneficiary and returned to work for the Petitioner when 
they received employment authorization in July 2017. In fact, if the Petitioner had only two 
employees as of December 2017, as indicated on its Form 941, it is unclear whether anyone but the 
Beneficiary and were working for the Petitioner at that time. 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 )(1 ). 
In the denial decision, the Director specifically noted the discrepancy between the Petitioner's 
assertions and the actual number of documented employees, as well as the low wages paid to several 
employees in 2017, and the fact that the Petitioner indicated on its quarterly tax returns that it had no 
more than three employees at any time in 2017. However, the Petitioner has not addressed these 
findings in its appeal and seems to rely primarily on the Beneficiary's job description and 
evaluation of that description, as well as the inadequately corroborated organizational 
chart that it previously submitted. We agree with the Director's finding that the evidence does not 
establish which positions were filled at any given time, and therefore does not support the 
Petitioner's claimed structure and staffing levels, either at the time of filing or thereafter. 
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 senior managerial employee. Here, although the 
Petitioner consistently indicates that the Beneficiary develops its strategies and goals, makes 
discretionary decisions, and directs the entity as a while, it has not supported 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. 
Matter of R-L- LLC 
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 
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). The size of a 
company may be especially relevant when we note discrepancies in the record. See Systronics, 153 
F. Supp. 2d at 15. 
While the Petitioner uses contractors for certain functions, it claims that the Beneficiary is 
surrounded by a "strong team that handles the non-qualifying tasks." Specifically, the Petitioner 
stated that its other employees prepare marketing materials, conduct sales calls, prepare sales 
materials, handle payments and follow up, process and record all transactions, maintain accounts, 
and handle all day-to-day activities of the warehouse and operations department. However, for the 
reasons discussed above, the Petitioner has not established which subordinate positions were staffed 
at the time of filing and the record does not support the Petitioner's claim that it had 25 employees, 
as indicated on the Form 1-140, or even four employees as indicated on its initial organizational 
chart. 
Further, we cannot overlook the fact that the Petitioner has not adequately described the 
Beneficiary's duties, nor has it provided sufficient duty descriptions for all subordinate staff As a 
result, it has not met its burden to establish how the administrative, sales, warehousing, financial, 
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 would 
primarily spend his time focused on the company's strategies, policies, and objectives. 
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. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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 R-L-LLC, ID# 2833460 (AAO Mar. 21, 2019) 
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