dismissed EB-1C Case: Marketing And Business Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 19808519 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 9, 2022 
Form I-140, Petition for Multinational Manager or Executive 
The Petitioner is engaged in providing marketing and business development services for 
I l a I entity that sells paper products. 1 The Petitioner claimed three 
employees at the time of filing and seeks to permanently employ the Beneficiary as its president under 
the first preference immigrant classification for multinational executives or managers. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the 
United States to work in an executive or managerial capacity . 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in the United States in a managerial or 
executive capacity. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C . § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker , must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5U)(3). 
1 The record contains evidence showing that and I., a Nigerianentity,jointly own the 
Petitionerwitbl lowning45 %and the latterentityowning55% of the Petitioner's stock. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The issue to be addressed is whether the Petitioner provided sufficient evidence in support of its claim 
that the Beneficiary would be employed in a managerial capacity and that he would assume the role 
of a function manager. 
Except where a different standard is specified by law, a petitioner must prove eligibility for the 
requested immigration benefit by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 
369, 375-76 (AAO 2010). Under the preponderance of the evidence standard, the evidence must 
demonstrate that the [applicant's/petitioner's] claim is "probably true." Id. at 3 76. We will examine 
each piece of evidence for relevance, probative value, and credibility, both individually and within the 
context of the totality of the evidence, to determine whether the fact to be proven is probably true. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
The term "function manager" applies generally when a beneficiary does not primarily supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 101 (a)( 44 )(A)(ii) of the Act. A petitioner claiming that 
a beneficiary will manage an essential function must clearly describe the duties to be performed in 
managing the essential function. In addition, the petitioner must demonstrate that "(1) the function is 
a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the 
beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at 
a senior level within the organizational hierarchy or with respect to the function managed; and ( 5) the 
beneficiary will exercise discretion over the function's day-to-day operations." Matter of G- Inc., 
Adopted Decision 2017-05 (AAO Nov. 8, 2017). Upon review of the evidence, we find that the 
Petitioner has not adequately demonstrated that the Beneficiary meets the criteria described in the third 
prong of this list. 
In determining whether a given beneficiary's duties will be primarily managerial, we consider the 
Petitioner's description of the job duties, the company's organizational structure, the duties of a 
beneficiary's subordinate employees, the presence of other employees to relieve the 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. 
A. Staffing 
First, we will discuss the Petitioner's organizational hierarchy and staffing. If staffing levels are used 
as a factor in determining whether an individual is acting in a managerial capacity, we take into account 
the reasonable needs of the organization in light of the overall purpose and stage of development of 
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the organization. See section 101 (a)( 44 )(C) of the Act. An individual will not be deemed an executive 
or manager under the statute simply based on their position title or because they direct the organization 
or manage a function as the owner or so le managerial employee. 
The record shows that the Petitioner was established in 2010 and has employed the Beneficiary in 1he 
United States as its president since 2011. In a supp01iing cover letter, the Petitioner stated that the 
Beneficiary will manage the "marketing, business development, sales supp01i and sales facilitation 
function" with the assistance of a support staff that includes two employees in the United States - a 
customer service and administrative assistant and a business development manager. The Petitioner 
also identified five third-party logistics companies as providers of shipping, delivery, and warehousing 
services; it claimed that the Beneficiary "receives considerable support from employees of affiliated 
companies inl I and India" and listed two off shore positions - an assistant manager of 
operations based out of and a documentation assistant based out of India. Although the 
Petitioner provided stock certificates showingthatl thel entity, owns 55% 
of the Petitioner's stock, it did not provide evidence documenting a staffing arrangement with that 
entity, nor did it elaborate on or document the nature of its claimed affiliation to the Indian entity, 
which was the claimed employer of the Petitioner's documentation assistant. 
In response to the Director's notice of intent to deny (NOID), the Petitioner provided a statement 
discussing the "import business model" it would use to provide I with marketing and 
business development services in the United States in exchange for a fee. This business arrangement 
is briefly discussed in an informal letter from October 2020, wherel chief executive 
stated that the Petitioner "is fully responsible for marketing, business development, sales support and 
sales generation" of products in the United States. The Petitioner also stated that 
I would handle "the operational, financial, logistical, and administrative function." Although 
the Petitioner provided a formal agreement specifying the services it would provide and the fee 
structure that dictates the terms of its compensation, the agreement was executed in June 2018 and 
therefore was not in effect in March 2018 when this petition was filed. Likewise, the Petitioner 
provided an agreement showing that it retained the services of an independent sales agent in July 2020, 
approximately two years after this petition was filed. It is noted that the Petitioner must establish that 
all eligibility requirements for the immigration benefit have been satisfied from the time of the filing 
and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Since neither the service agreement nor 
the independent sales contract was in effect at the time of filing, these documents would not establish 
the Petitioner's eligibility at that time. 
Furthermore, the Petitioner has not established that a sales staff comprised of a single employee - in 
this case the business development manager- was sufficient to relieve the Beneficiary from having to 
perform critical operational tasks, such as selling and marketing the client's paper products, to allow 
him to instead perform primarily in a managerial capacity. According to its 2018 tax return, the 
Petitioner generated approximately $3. 7 million in gross sales in the year the petition was filed and 
claims on appeal that it generated "over $10 million in sales through August 2020," while paying only 
$231,640 and $195,200 in wages and salaries during the 2018 and 2019 tax years of which 
approximately $145,000 accounted for the Beneficiary's salary. As such, it is reasonable for us to 
inquire into how the Petitioner was able to achieve these revenue figures if only one employee was 
performing the sales and marketing function, as appears to have been the case in 2019. If USCIS finds 
reason to believe that an assertion stated in the petition is not true, USCIS may reject that assertion. 
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See, e.g., Section 204(b) of the Act, 8 U.S.C. § l l54(b);Anetekhaiv. INS, 876 F.2d 1218, 1220 (5th 
Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. 
v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The Petitioner's NOID response also includes an organizational chart depicting a new staffing structure 
comprised of only the Beneficiary and a business development manager. The chart indicates that the 
Petitioner eliminated the customer service and administrative assistant position, which had been part 
of the U.S. organizational hierarchy at the time of filing and continued to be part of the organization 
into May 2018, according to the Petitioner's 2018 payroll summary. The Petitioner did not further 
discuss this change or explain who took over the customer service and administrative assistant's job 
duties, which included generating customer invoices, preparing product samples for the Beneficiary's 
meetings with clients, perfonning data entry, and other office and administrative tasks. Despite the 
Petitioner's claim that it has been adequately staffed to support the Beneficiary in a managerial 
position since this petition was filed, the record as currently constituted does not support this assertion. 
As noted above, the record shows that the Petitioner currently consists of the Beneficiary and one other 
employee; as such, it is not clear that the Beneficiary primarily performs in a managerial capacity as 
opposed to performing some of the operational tasks that were previously assigned to the defunct 
position. 
As for the remainder of the staff, the new organizational chart shows two employees as part of the 
"off shore team" and identifies them as "Business Development Manager at and 
"Documentation Executive atl these new positions appear to have replaced the 
assistant manager of operations and documentation assistant, both of which were listed among the 
Petitioner's support staff at the time of filing. The Petitioner did not explain the practical impact of 
these changes on the organization and provided only one set of job descriptions for the entire "offshore 
team," rather than specifying the job duties of each position. The Petitioner also did not explain the 
terms of its staffing arrangement, nor did it provide evidence showing that it has a formal staffing 
arrangement with an offshore company, namely I L which 
compensates the employees claimed to be part of the Petitioner's "offshore team." 2 The record 
contains email communications that were sent by these employees; the emails 
contain waivers stating that the latter entity "provides market liaison support services" but that it "is 
not agent of any Seller." Although the disclaimers indicate that lhas a role 
with respect to the paper products the Petitioner markets and sells, the record contains no 
documentation clarifying that role. The record equally lacks evidence specifying the relationship 
between the Petitioner and I I nor does it contain evidence showing the 
existence of an official staffing arrangement, whereby the latter is contractually obligated to staff the 
petitioning entity. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
On appeal, the Petitioner references Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 
2016), arguing that its reliance on offshore staffing is similar to that of the petitioner in the cited case 
and that it warrants a favorable outcome. Because we find that the circumstances in the matter at hand 
are notably different from those in the cited case, we disagree with the Petitioner's argument. One 
2 On appeal, the Petitionerprovided paystubs for the two employees who are identified on the Petitioner's organizational 
chart as comprising the "offshore team." 
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critical distinction is that the record in Matter of Z-A- included evidence that an 8-person overseas 
staff was "exclusively" dedicated to supporting the work of the beneficiary. That record also 
established that the overseas personnel were employed bya related entity within the "wider" qualifying 
organization which the petitioner was part of. Neither factor applies in the present matter. Rather, 
despite claiming thatl I which employs the overseas personnel, is an affiliated 
entity, the Petitioner has provided no evidence documenting the nature of the claimed affiliation and 
thus it has not established that it and I I are part of a qualifying organization. 
There is also no evidence that the overseas staff is "exclusively" dedicated to supporting the U.S. 
endeavor, nor does the record contain evidence of a contractual arrangement whereinl I I I formally agreed to provide the Petitioner with off shore personnel in exchange for some 
form of consideration. 
In sum, the Petitioner did not elaborate on the Petitioner's staffing at the time of filing and has instead 
primarily focused on the staffing changes that have since taken place. See 8 C.F.R. § I 03 .2(b )(1 ). As 
such, the record lacks sufficient evidence demonstrating that the Petitioner's staff at the time of filing 
was sufficient to support the Beneficiary in a managerial position that would involve primarily 
managerial tasks. Further, despite claiming that it has and continues to rely on a two-person offshore 
staff to supp01i the U.S. operation and relieve the Beneficiary from various operational tasks, the 
Petitioner did not provide sufficient evidence documenting this staffing arrangement. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N 
Dec. at 376. 
In light of the evidentiary deficiencies discussed above, the Petitioner has not met its burden of 
establishing that the Beneficiary will primarily work in a managerial position. The Petitioner has not 
adequately addressed how it planned to relieve the Beneficiary from having to perform operational 
tasks at and subsequent to the time of filing. As such, we cannot conclude that the Petitioner had 
sufficient personnel to relieve the Beneficiary from having to primarily engage in daily administrative 
and operational tasks associated with sales, business development, customer support, and delivery 
logistics. 
B. Job Duties 
Next, we will address the Petitioner's description of the Beneficiary's job duties in his proposed 
position. See 8 C.F.R. § 204.5(j)(5). 
In its supporting cover letter, the Petitioner stated that the Beneficiary is responsible for creating and 
overseeing the implementation of business strategies and directing goals that will further the 
company's efforts to expand its U.S. client base. In response to the NOID, the Petitioner provided 
another job description, which was comprised of ten broader categories with each category further 
broken down into job duties and the percentage of time the Beneficiary would allocate to each duty. 
Although the supplemental job description was considerably lengthier and contained more information 
than the general statement included in the initial supporting statement, many of the listed duties were 
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vague and focused more on the Beneficiary's discretionary authority than the specific underlying tasks 
the Beneficiary would actually perform in the regular course of business. 
For instance, the Petitioner stated that strategic planning for "growth and diversification," a category 
to which 15% of the Beneficiary's time would be allocated, is comprised of the following: 1) "Shape 
the course of the organization ... and develop a clear picture" of the company's course "over the next 
2-3 years"; 2) "Convert the strategic vision into measurable objectives and perfonnance targets"; 
3) '"Craft a strategic plan with annual sales and marketing budget"; 4) "Set tactical goals/targets on a 
quarterly basis for the marketing & business development team"; 5) "Plan strategically for actions to 
respond to changing industry conditions" such as supply and demand and government regulations; 
6) "Plan strategically for products diversification based on the supply sources available"; 
7) "Brainstorm ideas and inputs with the Board of Directors"; and 8) "Formulate hiring plans" to 
extend the Petitioner's "marketing reach." Despite conveying a strong sense of the Beneficiary's 
discretionary authority over the company's business objectives, these job duties lack meaningful 
content revealing the nature of the actual tasks the Beneficiary would perform on a daily or weekly 
basis within the context of a two-person sales and marketing operation. The Petitioner did not 
elaborate on its "strategic vision" or explain how the Beneficiary determines goals and targets. 
The Petitioner stated that another 8% of the Beneficiary's time would be spent making financial 
decisions, which would include establishing annual financial objectives, assessing options based on 
financial viability, discussing financials with a certified accountant, discussing financial statements 
and tax returns with the board of directors, and exercising discretion over operational expenses. Again, 
these duties continue to stress the Beneficiary's discretionary authority, but they provide little insight 
as to what actions the Beneficiary would unde1iake in the normal course of business. The Petitioner 
was similarly vague in describing the Beneficiary's role with respect to sourcing and procurement, 
stating only that the Beneficiary provides "strategic guidance ... to effectively source and procure" 
and directs the pricing and negotiation process. 
Further, most of the job duties comprising the category of overseeing marketing and business 
development also lack adequate detail as to specific tasks underlying the following broadly stated 
duties: providing the Petitioner's board of directors with "strategic guidance ... to effectively market'' 
the client's paper products and directing the board "to do market research and groundwork" in 
preparation to add products to the marketing plan; "direct[ing] the marketing & business development 
team" to expand the client base and provide them with direction in final pricing and negotiation; 
planning "for regular offensive moves to strengthen" gain a competitive edge; and "direct[ing] the 
head of the [ o ]ff shore team ... to source products effectively." While these duties indicate that the 
Beneficiary has oversight and control over the marketing, pricing, and sourcing of the products the 
Petitioner sells, it is unclear precisely how they translate into daily or weekly tasks within the context 
of the Petitioner's operation. 
The fact that the Beneficiary will manage a business does not necessarily establish eligibility for 
classification as a multinational manager in a managerial capacity within the meaning of section 
10l(a)(44)(A) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" managerial in nature. Section 101 (A)(44)(A) of the Act. To make this 
determination, we rely on specific information about a beneficiary's actual daily tasks as an important 
indication of whether their duties are primarily managerial in nature; otherwise meeting the definitions 
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would simply be a matter ofreiterating 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). Here, more than 40% of the 
Beneficiary's job description is comprised of job duties that are vague and preclude an understanding 
of the actual underlying activities the Beneficiary would undertake. While the job description 
indicates that the Beneficiary exercises discretion over the Petitioner's day-to-day operations and 
possesses the requisite level of authority to make decisions about its financial and business matters, 
the record does not establish thatthe actual tasks the Beneficiarywill perf orm are primarily managerial 
in nature. The actual duties themselves reveal the true nature of the employment. Id. 
In addition, the job description also contains job duties that do not readily qualify as managerial, but 
rather are more operational in nature. Such duties include conducting client meetings, attending 
networking events, and communicating with supplier mills and freight forwarding companies. 
Although no single job duty represents the primary portion of the Beneficiary's job description, a 
determination of the Beneficiary's eligibility hinges on a comprehensive analysis, which includes 
consideration of the entire job description and the organizational hierarchy within which those duties 
are to be performed. Having applied this wholistic approach in the matter at hand, we find that the 
record contains evidentiary deficiencies that preclude a favorable determination. As discussed above, 
the record contains a deficient job description and ambiguities concerning the Petitioner's 
organizational hierarchy. 
In light of these deficiencies, we conclude that the Petitioner has not established that it would more 
likely than not employ the Beneficiary in a managerial capacity where the primary portion of his time 
will be spent perf orming managerial job duties. 
ORDER: The appeal is dismissed. 
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