dismissed EB-1C Case: Meat Production And Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF USAH- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 26,2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a meat producer and distributor, seeks to pennanently employ the Beneficiary as its 
general manager under the first preference immigrant classification for multinational executives or 
managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ ll53(b)( l )(C). This classification allows a U.S. employer to pennanently transfer a qualified foreign 
employee to the United States to work in an executive ~r managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by 
selectively considering the subn1itted evidence. 
Upon de novo review, we will dismiss the appeal. • 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a bene!iciary 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 atliliate. Section 203(b)(l)(C) of the 
Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
o11icial 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. § 204.5(j)(3). 
Matter of USAH- LLC 
II. DEFINITIONS 
"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 
l01(a)(44)(A) of the Act. 
"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 
101(a)(44)(B) of the Act. 
111. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In this matter, the Petitioner claims that the Beneficiary's proposed position is both managerial and 
executive. The Director found that the Petitioner did not establish that it will employ the Beneficiary 
in a managerial or executive capacity. The Petitioner asserts that it has met its burden of proof, but 
we disagree. 
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 beneticiary'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. 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first 
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). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or 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. 
2 
Matter of USAH- LLC 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its statTtng levels. 
A. Duties 
The Petitioner stated that the Beneficiary "is charged with overseeing the overall management and 
administration of our company, as well as designing, directing and implementing our vision and 
plans for expanding the company's business operations." The Petitioner submitted a job description 
with the petition, and a somewhat more detailed version upon the Director's request. 
The Petitioner, on appeal, protests that the Director only cited the first version in the denial notice, 
and that "the denial decision does not - in any way - discuss or analyze [the Beneficiary's] job 
duties." Below, we reproduce the second version of the job description, listing the following duties 
and the approximate time the Beneficiary devoted to each: 
• Establishing corporate policies and long range goals and conferring with 
personnel to identify and implement the strategies and procedures to achieve them 
(15%). 
• Setting performance standards tor purchasing, sales, marketing and finance and 
monitoring performance (20% ). 
• Fonnulating short and long-term policies to ensure the continuous growth and 
profitability (5%). 
• Creating tirm-wide policies on a macro-level and making administrative plans to 
ensure the successful implementation of these policies on a micro-level (10%). 
• Communicating with our headquarters office in Caracas, Venezuela on a weekly 
basis to provide updates and guidance and to coordinat[e] strategic planning (3%). 
• Establishing and identifying innovative approaches to expand our U.S. business 
operations, which includes maintaining good public relations and business 
networking to expand market share (5%). 
• Leading and overseeing negotiations with banks, vendors and supplie(r]s of 
products and services to ensure the most favorable terms and conditions (5%). 
• Overseeing and approving the setting of accurate budgets for administration and 
marketing and monitoring these on a biweekly basis (5%). 
• Approving budgets and expenditures by reviewing reports submitted by 
subordinate personnel and recommending changes, as needed (5%). 
• Investing the necessary funds to ensure efficient business operations and 
expansion, including making necessary recommendations and implementing 
essential financial and organizational changes to increase productivity, earnings 
and profit (5%). 
• Reviewing activity reports and financial statements to determine progress and 
status in attaining objectives and revising goals and plans in accordance with 
existing and anticipated conditions (5%). 
3 
Matter of' USAH- LLC 
• Representing the company in a wide variety of corporate matters; which includes 
the authority to contractually bind the company, and acting as the corporate bank 
account signatory (5%). 
• Directing the hiring and firing of personnel as well as the delegation of 
responsibilities (5%). 
• Determining salary, wage and benelit structures at all levels with final approval of 
our ollice in Venezuela (2%). 
• MonitDring staff perfoni1ance and ensunng highest level of customer/client 
services (5%). 
Several items on the list appear to overlap or repeat one another. The first item deals with 
establishing policies; the third, with formulating policies; and the fourth, with creating policies. The 
Petitioner does not explain the difference. Similarly, two items both deal with approving the budget, 
and the Petitioner does not distinguish between "overseeing negotiations with banks, vendors and 
supplie[r]s" and "[r]epresenting the company in a wide variety of corporate matters ... [with] 
authority to contractually bind the company." Given these redundant items, it is not evident that the 
job description fully accounts for the time the Beneficiary spends on the company. 
Furthermore, the description lacks detail. Many listed items on the job description are general 
assertions of authority without specific information as to how the Beneficiary exercises that 
authority. 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). The actual duties themselves reveal the true 
nature of the employment. !d. 
The Petitioner asserts that the· Beneficiary's level of authority over the company is consistent with 
. either a managerial or an executive capacity, and that "[i]t is inconceivable that an operation of this 
nature and size is functioning without the leadership and guidance of a high-level manager or 
executive." The Beneficiary may have discretionary authority over the petitioning company, but the 
Petitioner has not provided enough substantiated information to establish that the Benellciary acts 
primarily as ~ither a manager or an executive. With regard to the size of the company, its 
organizational chart shows only two employees directly involved in processing meats - a "food 
processor" and a "baker." We will discuss staffing in more detail below. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development ofthe organization. See section IOI(a)(44)(C) 
of the Act. 
4 
Mauer of USA H- LLC 
On appeal, the Petitioner asserts that the Director erred by stating that the company has seven 
employees. On the petition form, the Petitioner specifically claimed that it had seven employees in 
the United States. Therefore, erroneous or not, the "seven employees" figure comes from the 
Petitioner itself 
A company's size alone, without taking into account the reasonable needs of the organization, may 
not be the determining factor in denying a visa petition for classification as a multinational manager 
or executive. See section I 0 I (a)(44)(C) of the Act. However, it is appropriate for USCIS 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. See. e.g. Family Inc .. 469 F.3d 1313; Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 200 I). 
An organizational chart showed a total of ten employees. The chart showed the Beneficiary at the 
top level, with the administrative and financial manager as his only immediate subordinate. The 
Petitioner stated that the administrative and financial manager earned $50,160 per year (tax records 
show $39,410 paid in 20 16) and performed the following duties: 
o Managing financial planning, implementation and follow-up, in consultation with 
[the Beneficiary]. 
o Preparing financial analyses, reports and budgets as well as periodic variance 
analysis. 
o Making and recommending administrative plans and policies and ensuring the 
successful implementation of those policies, in coordination with [the 
Beneficiary]. 
o Developing, modifying and overseeing the proper and accurate maintenance of 
recordkeeping systems. 
o Recruiting, selecting, orienting, training and disciplining staff 
o Overseeing the management of inventory, pricing integrity, merchandising labor 
and other operational processes. 
o Ensuring ... , compliance with company's sales and productions planning 
standards. 
o Developing strategic plans by studying and analyzing financial data and 
presenting recommendations. 
o Establishing budget[] plans and making recommendations. 
o Monitoring and reviewing financial and administrative progress and making mid­
course corrections to ensure that [the] organization's goals and profitability 
requirements are achieved. 
The administrative and financial manager has a managerial title, and some of the duties listed are 
consistent with managerial authority, but the record does not establish the extent of his managerial 
responsibilities. For example, the first listed duty in the above job description is "[ m ]anaging 
financial planning," but the record does not identify any subordinate worker who actually performs 
5 
Matter of USAH- LLC 
financial planning functions. lfthe administrative and financial manager does the financial planning 
himself, then he is not "managing" that task. 
Below the administrative and financial manager, the chart showed eight subordinates. Below, the 
first numerical column shows the annual salary claimed on the organizational chart; the second 
numerical column shows actual 2016 payments as shown on IRS Forms W-2, Wage and Tax 
Statements. 
Title Chart salary W-2 salary 
Marketing & Sales $29,040 $13,640 
Administrative Officer 24,000 ·24,430 
Food Processor 19,200 18,178 
Sales Representative 19,200 26,600 
Baker 18,000 8436 
Packaging & Label 18,000 12,670 
Driver 18,000 18,182 
Operator 18,000 6165 
The Petitioner subsequently revised the organizational chart, adding a subcontracted accountant and 
replacing the "Operator" with a second "Packaging & Label" employee. Another significant change 
was that the individual first identified as "Marketing & Sales" was later called "Marketing & Sales 
Supervisor," with authority over the sales representative. The first version of the chart showed both 
of them reporting directly to the administrative and financial manager. 
The job description for the marketing and sales supervisor reads as follows: 
o Developing and implementing marketing, communications, and public relations 
programs to enhance the company's image and position within supermarkets and 
the general public. 
o Coordinating the appearance of all company's print such as letterhead, use of 
logo, labels, etc. 
o Designing and producing the company's marketing publications. 
o Leading projects, as assigned, such as events and promotions m multiple 
supermarkets. 
o Managing the brand in social inedia. 
o Coordinating order fulfillment and consolidation, packaging, shipping, and 
transportation to meet customer requirements. 
o Researching sales conditions and coordinating the promotion of services in an 
effort to increase market share, as well as to strengthen the company's 
competitive position in the industry. 
o Preparing marketing reports and sales. budgets for [the Beneficiary's J approval. 
6 
Malter of USAH- LLC 
It is not evident that the marketing and sales supervisor is primarily a supervisor. Many of the above 
duties are operational, such as developing and designing mark'eting programs, and the listed duties 
do not include any supervision of other employees. 
The Director found that the Petitioner had "a limited number of employees," many of whom appear 
to work part-time. On appeal, the Petitioner maintains that the low salary figures result from 
employee turnover rather than part-time employment. Supporting this assertion, the record shows 
that the Petitioner paid 16 employees during 2016, but only employed between 9 and 12 at any one 
time. In all, 6 of the Beneficiary's subordinates earned an amount consistent with year-round, full­
time employment in 2016. 
The Petitioner contends that the Director focused inordinately on the erroneous conclusion that many 
of the Petitioner's employees work part-time. More broadly, however, the record does not show that 
the organization of the company justifies a primarily managerial or executive position at the 
Beneficiary's level. 
The statutory detinition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. The statute plainly states that a "first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional." Section 10l(a)(44)(A)(iv) of the Act; 8 C.F.R. 
§ 204.5(j)(4)(i). If a beneticiary directly supervises other employees, the beneficiary must also have 
the authority to hire and tire those employees, or recommend those actions, and take other personnel 
actions. 8 C.F.R. § 204.5(j)(2). 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the tield of 
endeavor. 1 
The Director also found that the Petitioner had not established that any of the subordinate employees 
are professionals. On appeal, the Petitioner shows that the administrative and tinancial manager 
holds a bachelor's degree in public accounting, and the marketing and sales supervisor holds a 
bachelor's degree in social communication and later completed a university-level "Program of 
Management in Digital Marketing." The Petitioner contends that these degrees "plainly demonstrate 
that these individuals are "professionals' and are acting as professionals in their respective roles" at 
the petitioning company. The Petitioner, however, did not establish that either of the above positions 
requires at least a bachelor's degree. A profession is defined by the requirements of the position, 
1 Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the 
Act states that "[t]he term profession shall include but not be limited to architects, engineers, lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
7 
Matter of USAH- LLC 
rather than the qualifications of the individual who happens to hold that position at any given time. 
We note that the Petitioner's acknowledged use of contracted accounting services indicates that the 
administrative and financial manager is not employed as an accountant. 
The Petitioner asserts that the Beneficiary "directly oversees the duties of ... an outside accounting 
firm." Accounting can qualify as a profession, but the Petitioner has not shown the extent to which 
the accountant performs work for the Petitioner. If the Petitioner is the accountant's sole or primary 
client, then it is conceivable that the Beneficiary is effectively the accountant's manager, but the 
Petitioner has not shown this to be the case. If the accountant performs work for the Petitioner only 
on an occasional or sporadic basis, for instance to prepare tax returns, then it is not realistic to assert 
that the accountant is the Beneficiary's subordinate .. An accountant with, for. example, I 5 clients 
does not have 15 managers. An attorney is a professional, and the Petitioner hired an attorney to 
represent it in this proceeding, but the Beneficiary is not that attorney's manager. 
The Petitioner's immediate subordinate appears to be a supervisor, but this does not automatically 
qualify the Beneficiary as a personnel manager because the Petitioner has not shown that this 
oversight is the Beneficiary's primary responsibility. 
The term "function manager" applies generally when a beneficiary does not 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. If a petitioner claims that a 
beneficiary will manage an essential function, it must clearly describe the duties to be perforn1ed in 
managing the essential function. In addition, the petitioner must demonstrate that "(l) 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." Muller of G­
Jnc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the Petitioner has not 
described or provided evidence that the Beneficiary manages an essential function. 
The Petitioner contends that the Beneficiary "qualifies as a functional manager" because of his 
"managerial duties associated with the overall administration and development of [the Petitioner's] 
operations." As explained above, the Petitioner has established the Beneficiary's discretionary 
authority over the company, but an employee holding the top position at a business is not inevitably 
a function manager. The statutory definition sets forth several conditions that a manager must fulfill, 
and the Petitioner has not met its burden to show that the Beneficiary has fullilled them and acts 
primarily in a managerial capacity. 
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. 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 
8 
Mauer of USAH- LLC 
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 I 01 (a)( 44 )(B) of the Act. 
The Petitioner otTers the general assertion that the Beneficiary's high level of discretionary authority 
is arguably executive as well as managerial. The Petitioner has not shown that there are any 
managers under the Beneficiary's authority, and therefore the Petitioner has not established that the 
Beneficiary directs the management of the organization. 
The Petitioner has not established that the Beneficiary's role with the petitioning U.S. company 
would be primarily either managerial or executive. 
IV. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that it will employ 
the Beneficiary in a primarily managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Malter oj'USAH- LLC, ID# 1030784 (AAO Mar. 26, 2018) 
9