dismissed EB-1C Case: Maritime Services And Sales

U.S. Citizenship 
and Immigration 
Services 
MATTER Of E-S-1-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 3, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner states that it sells, services, and manages oceangoing vessels and operates a used car 
dealership. It seeks to permanently employ the Beneficiary as its chief executive ot1icer under the 
tirst 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 Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Petitioner had been doing business for at least one year prior to 
the petition's filing date; and (2) the Petitioner will employ the Beneficiary in the United States in an 
. . I 
executive capacity. 
On appeal, the Petitioner asserts that the Director erred by not giving full consideration to evidence 
in the record, and by citing a ground for denial that was not previously raised in a request for 
evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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 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 
1 
The Adminislrative Appeals Office inadvertently designated the appeal as "administratively closed," and then reopened 
the proceeding for the sole purpose of restoring the appeal to pending status. 
Mauer ofE-S-1-. LLC 
the tiling of the petition. that the beneficiary is coming to work in the United States tor the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has 
been doing business tor at least one year. See 8 C.F.R. § 204.5G)(3). 
II. DOING BUSINESS 
The Petitioner must show that it has been doing business throughout the year preceding the filing 
date. 8 C.F.R. § 204.5(j)(3)(i)(D). "Doing business" means the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other entity and does not include the 
mere presence of an agent or office. 8 C.F.R. § 204.5(j)(2). 
The Director devoted most of the denial notice to a tinding that the Petitioner did not establish that it 
had been doing business for at least one year prior to the petition's October 31, 2016 filing date. On 
appeal, the Petitioner asserts that it has amply documented its business activity during the relevant 
year. We disagree. 
On the petition form, the Petitioner listed its "Type of Business" as "Ocean vessel transport sales and 
purchase." In an accompanying letter. the Petitioner stated that "its core business is the purchase, 
sale, and management of specialized ocean-going vessels to transport personnel, light cargo, and on 
deck supplies for the U.S. and Mexican oft~shore oil and gas industries." 
The Petitioner also purchased a car dealership in June 2016. As the dealership did business under 
the Petitioner's control tor less than live months prior to the filing date, it alone would not establish 
that the Petitioner meets the provisions of 8 C.F.R. § 204.5G)(3)(i)(D). 
On its 2015 income tax return, the Petitioner reported gross receipts of $428,390, with gross profit of 
$293,710 atier deducting the cost of goods sold. Although these figures indicate business activity, 
they do not automatically or presumptively establish that the activity was regular, systematic, and 
continuous, rather than occasional or intermittent. 
The Petitioner submitted copies of its 2016 bank statetnents, ;;confirn1ing its operational activities_~~ 
The earliest statement is from February 2016, which cannot show business activity one year before 
the October 2016 filing date. Furthermore, between February and June 2016, deposits into the 
account came from two sources: an insurance company and the Petitioner's foreign parent company. 
The Petitioner has not shown that these deposits constituted payment for goods or services, rather 
than infusions of capitaL The Petitioner also documented several later deposits, which came from 
the Beneficiary himself and. therefore, also would not constitute as evidence of payment for goods 
or servtces. 
We also note that prior to June 2016, the Petitioner had two employees- the Beneficiary and a sales 
and marketing manager. Although the Petitioner submitted a job description for the sales and 
marketing manager, that description presumes the existence of subordinate staff, such as "Account 
Executives." However, the Petitioner has not provided evidence to show that it employed "Account 
2 
Mauer of E-S-1-. LLC 
Executives" that it referenced in the sales and marketing manager's job description. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Maller of Chawathe, 
25 I&N Dec. 369, 3 76 (AAO 20 I 0). Further, although the car dealership has a sales representative 
to perform actual sales duties, the Petitioner does not claim to have employees to sell or service 
boats or related products. In contrast, the foreign parent company has departments such as 
"workshop and maintenance," "collections," and a captain and crew for marine vessels. 
The Director requested further evidence of the Petitioner's business activity in the United States. In 
response, the Petitioner stated that the company "was formed in 20 II to engage in the purchase, sale 
and management of specialized ocean-gojng vessels"; it did not, however, submit any evidence that 
the company actually engaged in the sale and management of specialized ocean-going vessels in the 
United States. The Petitioner documented its purchase of accessories such as life rafts, but did not 
show that the petitioning U.S. entity, rather than its foreign parent company, purchased oceangoing 
vessels or owned such vessels at the time of filing. 
The Petitioner documented its purchase of "life rafts for vessels owned by [its] parent company'' 
However, the purchase of life rafts is not a business activity for the buyer because it does not 
constitute the provision of goods or services. The definition of "doing business" focuses on income­
generating activities, rather than expenses, such as purchases of property, inventory, and equipment. 
The Petitioner also listed several instances in which the Beneficiary "directed his Sales and 
Marketing Manager to enter into negotiations" with various potential customers. If successful, 
negotiations can set the stage for future business activity; however, negotiations themselves do not 
inherently constitute "doing business" because the act of negotiating provides neither goods nor 
services. Although the Petitioner submitted copies of email communications between its sales and 
marketing manager and prospective clients in 2015, the messages do not show that any sales 
transactions actually took place. Bid proposals in the record do not show that the potential clients 
accepted those proposals. 
Furthermore, although the bid proposals are in U.S. dollars, they are on the letterhead of the foreign 
parent company and show the foreign entity's name and address. It is relevant to note that the 
Petitioner's parent company is in Mexico, where the named vessels were docked, approximately 
I 000 miles from the U.S. border. In one email message, the Petitioner's sales· and marketing 
manager stated that the company sought to provide "services in the gulf of Mexico, on the Mexican 
side." However, the Petitioner has not established that the vessels were under the control of the 
Petitioner rather than the Mexican parent entity. A Mexican company that hires out Mexican vessels 
!rom a Mexican port does not establish that the Petitioner was doing business in the United States. 
The Petitioner did not establish that the listed negotiations resulted in the company regularly, 
systematically, and continuously providing goods, services, or both, to its customers throughout the 
year that preceded the filing of the petition. 
3 
Mauer of E-S-1-. LLC 
The Petitioner submitted copies of invoices, contracts, and related documents dating from late 2016 
and early 2017, alter the filing date of the petition. In these documents, the Petitioner agreed to 
provide (either by itself or through the foreign parent entity) rental equipment and various related 
services. The Petitioner did not submit similar evidence to show that it provided goods, services, or 
both from the year prior to tiling, nor did the Petitioner explain the absence of such evidence. The 
Petitioner also submitted documentation dated November 2016 and April 2017, concerning inquiries 
into purchasing a "specialized marine work shop." These documents date from alter the tiling date, 
and do not show that the Petitioner owned or operated a marine workshop for at least a year prior to 
the tiling date. 
The Director denied the petition, stating that the Petitioner had not submitted sufficient evidence to 
establish that it regularly engaged in "the purchase, sale and management of specialized ocean-going 
vessels" throughout the year prior to the tiling date. The Director acknowledged the Petitioner's 
purchase of equipment but found that these purchases did not show that the Petitioner was doing 
business. The Director also concluded that the Petitioner's purchase of an automobile dealership 
was too recent to establish.a full year of business activity as of the tiling date. 
On appeaL the Petitioner asserts that "its principal line of business has been fully operational and 
engaged in continuous business activity." The Petitioner submits no new evidence to support this 
claim; instead, the Petitioner refers to materials that were previously submitted in response to the 
Director's request for evidence. We have discussed this evidence above and lind that it is not 
sufficient to establish that the Petitioner has been doing business during the required one-year time 
period that preceded the tiling of this petition. The Petitioner asserts that the previously submitted 
materials "confirm Petitioner's business activities ... , including the purchasing and providing [ofl 
goods and services." However, the Petitioner does not address the Director's observation that 
purchases made by the Petitioner do not constitute doing business. 
It is significant that the Petitioner has, on its own initiative, submitted copies of its automobile 
dealer's license, but has not submitted, or claimed to hold, a boat dealer's license, which is required 
under Tex. Water Safety Act,§ 3l.04l(a) (1975). Similarly, the Petitioner submitted the addresses, 
lease agreements, and photographs of the company's corporate ortices and of the car dealership, but 
has not provided an address or photographs of any U.S. facility that stores, ships, sells, or services 
boats, bout parts, or related accessories. For most of tl;e year that preceded the tiling date, the 
Beneficiary was one of two employees at the petitioning U.S. company, and the Petitioner did not 
claim that either of those employees sold, serviced, or managed marine vessels. The Petitioner's 
subsequent hires have been at the car dealership, which was not part of the petitioning entity until a 
few months before the tiling date. The Petitioner has provided documentary evidence that it 
operates a car dealership, but only circumstantial evidence and after-the-fact claims regarding what it 
claims is its primary business activity relating to marine vessels. 
Although the Petitioner's tax returns show income prior to the filing date, the Petitioner has not 
sufficiently documented specific business activity indicating that it, as opposed to its foreign parent 
company, was engaged in the regular, systematic, and continuous provision of goods or services for 
4 
Mauer o/E-S-1-. LLC 
at least a year prior to the petition's liling date. Instead, the business activity documented in the 
record for the relevant year relates to sales executed by, and on behalf of, the parent entity in 
Mexico, with some communications routed through the Petitioner's U.S. office. This activity is not 
sufficient to constitute doing business; the mere presence of an agent or office does not constitute 
"doing business." See 8 C.F.R. § 204.5(j)(2). 
In light of the above, we agree with the Director that the Petitioner has not established that it was 
doing business for at least one year prior to the tiling date. 
III. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
Next, we will consider the Petitioner's claim that it will employ the Beneficiary in the United Stales 
in an executive capacity. The Petitioner does not claim that it will employ the Beneficiary in a 
managerial capacity. Therefore, we restrict our analysis to whether the Petitioner will employ the 
Beneficiary iti an executive capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
10l(a)(44)(B) of the Act. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties to be performed by the Beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 204.5(j)(5). Beyond the required description of the 
job duties, U.S. Citizenship and Immigration Services (USCIS) examines 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, we will discuss evidence regarding the Beneficiary's job duties along with 
evidence of the nature of the Petitioner's business and its staffing levels. 
Based on the statutory definition of executive capacity, the Petitioner must lirst show that the 
Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneliciary 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. 
We note that the Petitioner's organizational chart suggests that the Beneficiary continues to have 
authority over the foreign parent company as well as the petitioning U.S. entity. In Ma11er ofZ-A-. 
5 
Mauer oj'E-S-1-. LLC 
Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), we held that USC!S must take into account 
overseas employees who "support the day-to-day operational needs of the Petitioner." However, in 
this ~natter there is no indication that employees of the parent company support the Petitioner's 
business activity in the United States. The opposite appears to be the case, with an employee of the 
petitioning entity negotiating sales on behalf of the foreign entity, as discussed above. 
Whether or not a foreign entity has the organizational complexity to support a qualifying executive 
position, an individual does not qualify as a multinational executive simply by running the foreign 
entity in absentia from the United States. The petitioning U.S. entity itself must warrant an 
executive position. 
A. Duties 
The Petitioner indicated that the Beneficiary would "spend 45% of his time on the development of 
strategic company policies and goals," "25% of his time supervising and directing the work of [the 
Petitioner's] subordinate managers and professionals," "20% of his time directing and overseeing 
[the Petitioner's] Sales and Marketing Manager in negotiations of key contracts and agreements with 
suppliers, distributors, federal and state agencies, and other organizational entities," and the 
remaining 10% of his time "in recruiting activities for additional key positions ... and will supervise 
all human resources activities." 
The submitted job description lacks detail. 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. II 03, II 08 (E.D.N. Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Reciting a 
beneficiary's vague job responsibilities or broadly-cast business objectives is not 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. !d. 
Apart li·om the vagueness of the assertion that the Beneliciary would spend nearly half of his time 
developing policies and goals, elements of the job description arc otherwise problematic. 
Supervising professionals is not an executive-level task. See section IOI(a)(44)(A)(ii) of the Act 
(attributing supervision of professionals to the definition of managerial capacity). Although the 
Petitioner stated that the Bcneliciary would spend a signilicant amount of time "recruiting ... for 
additional key positions," the only vacant position identified at the time of liling was for an 
accountant, whose name the Petitioner provided and who, therefore, had already been recruited. The 
Petitioner indicated that negotiations with "suppliers, distributors, federal and state agencies" would 
also take up a large percentage of time; however, the Petitioner did not show that the company 
routinely deals with suppliers, distributors, or government agencies as part of its daily or weekly 
business activity. 
A beneliciary's authority over a business does not necessarily establish eligibility for classilication 
as an intracompany transferee in an executive capacity within the meaning of section IOI(a)(44) of 
6 
Maller olE-S-f-. LLC 
the Act. By statute, eligibility for this classification requires that the duties of a position be 
"primarily'' of an executive nature. Sections 10l(A)(44)(B) of the Act. In this case, while the 
Beneficiary may exercise discretion over the Petitioner's day-to-day operations and possesses the 
requisite level of authority with respect to discretionary decision-making, the position description 
alone is insufficient to establish that his actual duties, as of the date of filing, would be primarily 
executive in nature. 
For the reasons discussed above, we cannot conclude that the Beneficiary would be employed in an 
executive capacity. 
B. Staffing 
ln the denial notice, the Director focused on the company's staftlng, finding that the Petitioner had 
only two employees; this information appears to come tfom quarterly tax returns from early 2016, 
before the Petitioner had stalled its automobile dealership. The Petitioner filled additional positions 
in June 2016. 
On appeal, the Petitioner states that the Director's request for evidence did not raise the issue of the 
Beneficiary's claimed executive capacity in the United States. The Petitioner correc.tly observes that 
the request only touched on the Beneficiary's work abroad. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed executive capacity of a benef1ciary, including the company's organizational 
structure, the duties of a beneliciary's subordinate employees, the presence of other employees to 
relieve a beneficiary tr01n performing operational duties, t,he nature of the business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business. 
If staffing levels arc used as a factor in determining whether an individual is acting in an executive 
capacity, USClS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 1 01 (a)( 44 )(C) of the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or f~mctions of the 
organization, and that person's authority to direct the organization. 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 a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an. owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization ... Section IOI(a)(44)(B) of the Act. 
7 
Mauer of£-S-1-. LLC 
We also consider the proposed position in light of the nature of the petitioner's business, its 
organizational structure, and the availability of staff to carry out the petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a petitioner has, USC IS "may properly consider an organization's small size as one factor 
in assessing whether its operations arc substantial enough to support a manager." 2 Furthermore, it is 
appropriate for USCIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as a company's small personnel size and the absence of employees who would 
perform the non-managerial or non-executive operations of the company. See. e.g, s:vslronics Corp. 
v./NS, 153 F. Supp. 2d 7,15 (D.D.C. 2001). 
When it tiled the petition, the Petitioner stated that it "currently employs six (6) salaried employees, 
comprised of two (2) managers, one (I) professional, and three (3) operations positions." The 
Petitioner indicated that its shipping and logistics department consisted of the sales and marketing 
manager and an administrative assistant, as well as an accountant who did not actually begin 
working for the Petitioner until alter the filing date. The automobile dealership had a general 
manager, an auto shop manager, and a sales representative. 
For an executive capacity, the key subordinates arc the claimed managers, because an executive 
must direct the management of the company, rather than personally managing it. See section 
IOI(a)(44)(B)(i) of the Act. In this case, the two claimed managers- the sales and marketing 
manager and the auto dealership's general manager- are the only subordinates earning a full-time 
salary. According to payroll records from the first half of October 2016, the other employees work 
less than 20 hours per week; this includes the auto shop manager, despite that position's managerial 
title. The Petitioner also stated that the auto shop manager must have experience as a mechanic, and 
the auto shop manager's job duties include "painting automobiles after they've been repaired." As 
the Petitioner does not employ another mechanic, it does not appear that the auto shop manager 
manages or supervises other employees. 
The sales and marketing manager's two-page job description includes several elements relating to 
the hiring and supervision of "Account Executives." However, the Petitioner did not employ 
account executives at the time of liling or at any known point during the company's first live years 
of existence; the sales and marketing manager's only subordinate at the time of filing was a part-time 
administrative assistant. The record does not otherwise refer to any account executives. Therefore, 
we question the accuracy and applicability of the job description, which appears to have been 
derived from a template rather than from any analysis of this particular employee's actual duties. 
Further supporting this conclusion, the duties listed under "Marketing Management" were derived 
almost verbatim trom the generic duties for marketing managers at O*NET, an online database 
2 Family. Inc. v. US. Cilizenship and lmmigralion Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991 ); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Dol a 
Consulling. Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
8 
Maller of E-S-1-. LLC 
sponsored by the Department of Labor. See https://www.onetonline.org/link/summary/ll-2021.00 
(accessed April 25, 2018). The O*NET duties copied into the job description include references to 
"legal staff," "marketing staff" "buying personnel," and "product development ... personneL" 
despite the lack of evidence showing that the Petitioner actually has employees performing any of 
those functions. 
The job description for the auto shop general manager is similarly deficient. lt refers repeatedly to 
"both new and used vehicles," even though the Petitioner's dealership only sells used cars. Further, 
although the Petitioner states that the general manager is responsible for "[a]uditing all appraisals of 
trade-in vehicles," the record does not identify other employees who perform the underlying task of 
conducting those appraisals. Likewise, the Petitioner has not established that a single sales 
representative, whose late-20 16 payroll records show that he works only about 19 hours per week, is 
sufticient to fully execute the sales function and meet the Petitioner's sales needs. If the dealership 
is open more than 19 hours per week, the question arises as to who performs sales duties in the sales 
representative's absence. 
Generic job descriptions copied from public sources have minimal weight and value as indicators of 
what a speci lie employee docs in a spcci lie position. A petitioner cannot meet its burden of proof 
simply by copying the statutory definition of executive capacity. See Fed in Bros. Co .. Ltd v. Sava, 
724 F. Supp. 1108. 
Because the job descriptions in the record are demonstrably unreliable, we must look elsewhere in 
the record for evidence of the claimed managers' activities. However, the record does not otherwise 
significantly document the activities of the auto shop general manager. As noted previously, the 
evidence concerning the sales and marketing manager largely relates to his activity negotiating with 
potential clients, a task not shown in the job description. The job description's only reference to 
negotiation pertains to negotiations "with vendors or distributors to manage product distribution," an 
activity that was not documented in the record. 
On appeal, the Petitioner focuses on the Director's erroneous finding that the company had only two 
employees at the time of filing. Although the record refutes this specific finding, it does not 
establish that the Beneficiary's position qualifies as primarily executive. At this point, the Petitioner 
cannot overcome that finding without disavowing· or contradicting the evidence it has already 
submitted (some of which we have described above). 
The Petitioner has established that the Beneficiary has discretionary authority over the petitioning 
company. However. it has not shown that there is any management lor the Beneficiary to direct. 
Therefore, the Petitioner has not established that the Beneficiary directs the management of the 
company or any component thereof. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it will employ the Beneficiary in an executive capacity in the United States. 
9 
Mauer of £-S-1-. LLC 
IV. CONCLUSION 
For the reasons discussed above, the Petitioner did not establish that it has been doing business, as 
the regulations define that term, for at least one year prior to the filing date or that it will employ the 
Beneficiary in a primarily executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Maller ofE-S-1-. LLC, lD# 1114189 (AAO May 3, 2018) 
10