dismissed EB-1C Case: Pharmaceuticals

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-B-USA, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR.1,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a prescnptlon medicine and supplement exporter and provider of consulting and 
marketing services in the pharmaceutical industry, seeks to permanently 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. 
§ 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, Texas Service Center, denied the petition. The Director determined that the Petitioner 
did not establish that: (I) the Beneficiary would be employed in the United States in a managerial or 
executive capacity and (2) the Beneficiary was employed abroad in a managerial or executive 
capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief asserting that the 
Beneficiary has been and would be employed in a managerial capacity. The Petitioner disputes the 
Director's finding that the previously submitted job descriptions lacked sufficient detail to establish 
the Beneficiary's eligibility. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers.- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain multinational executives and managers. An alien is described in this 
subparagraph if the alien, in the 3 years preceding the time of the alien's 
application for classification and admission into the United States under this 
subparagraph, has been employed for at least 1 year by a firm or corporation 
Matter ofC-B-USA, Inc. 
or other legal entity or an affiliate or subsidiary thereof and the alien seeks to 
enter the United States in order to continue to render services to the same 
employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
A United States employer may file Fmm 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.F.R. § 204.5(j)(3) states that the Form 1-140 must be accompanied by 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 1 year in the 3 
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 atllliate of the foreign employer, and that the prospective U.S. 
employer has been doing business for at least 1 year. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
As indicated above, the Director denied the petition based on a finding that the Petitioner had not 
established that the Beneficiary was employed abroad, or would be employed in the United States, in 
a J!lanagerial or executive capacity. The Petitioner does not claim that the Beneficiary has been or 
will be employed in an executive capacity. 1 Therefore, we restrict our analysis to whether the 
Beneficiary has been and will be employed in a managerial capacity. 
Section 101(a)(44)(A) ofthe Act, ·s U.S.C. § 110l(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manag~s an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
1 Although the Petitioner's former counsel referred to the Beneficiary's proposed position as including 
"Managerial/Executive functions," the Petitioner's own supporting statement, signed by its operations manager, as well 
as the most recent claims made on appeal, expressly state that the Petitioner seeks to classify the Beneficiary as a 
multinational manager. 
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(b)(6)
Matter ofC-B-USA, Inc. 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 
Further, "[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." I d. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) 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. 
A. U.S. Employment in a Managerial Capacity 
The first issue to be addressed in this proceeding is whether the Petitioner provided sufficient 
evidence to establish that the Beneficiary would be employed in the United States in a managerial 
capacity. 
1. Duties 
When examining the executive or managerial capacity of a beneficiary, we will look first 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). 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
described in the statutory definition of managerial 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 managerial, 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 tiled a Form I-140 on January 22, 2013, claiming 12 employees and a gross annual 
income of $405,026. On the Form I-140 the Petitioner identified the nature of its business as "drug 
sales" and "retail drug store." In a supporting letter signed by its operations manager, 
the Petitioner stated that the company "exports approved medically prescribed drugs 
(wholesale), exports vitamins and supplements to Brazil, provides pharmaceutical marketing 
services for companies operating in the Brazil/U.S. markets, and will now begin to sell (through its 
newly established retail store) vitamins and supplements." stated that the retail store 
was scheduled to open upon completion of remodeling of the leased premises. 
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Matter ofC-B-USA. Inc. 
The Petitioner's letter included the following description of the Beneficiary's duties as general 
manager: 
[The Beneficiary] has overseen the entire facility and has been responsible for all the 
key decisions relating to the business. He has been responsible for the overall 
management of the U.S. entity, and the supervision of its Managers and Executives 
(including the Operations Manager, Purchasing Manager, Sales Coordinator, and 
Administrative Assistants). [The Beneficiary] has negotiated contracts on behalf of 
the corporation, established a network of service providers, engaged the services of 
various outside professionals, and has been ultimately responsible for the hiring 
decision of the U.S. company's employees. [The Beneficiary] exercises ultimate 
decision-making authority over the day-to-day decisions regarding the company's 
finances and capital acquisitions. 
The Petitioner's initial evidence also included a second letter \vith the following description of the 
Beneficiary's position: 
(45%) Monitor the activities of all employees; regular meeting with Operations 
Manager, Sales Coordinator; periodic meetings with Purchasing Manager 
(supplement division), Customer Service Manager, Purchasing/CDR 
Manager; Administrative Assistant, and Website Head; hiring and personnel 
decisions; review of reports on activities[.] 
(25%) Identify new markets and services for penetration and develop marketing 
strategy accordingly. Meetings with customers to resolve issues or identify 
needs; [n]etworking with business industries in the community to identify and 
cultivate new information sources, attend trade shows and conferences to keep 
abreast of the industry. Travel to various parts (within and outside of the 
United States) to communicate with the various suppliers, distributors, and 
potential business customers and/or collaborators. Evaluate and review the 
services ultimately provided by the company to ensure it meets proper 
company protocols and governmental regulations. 
(25%) Preparation of budget for US operations (monthly, quarterly, annually); 
approve major expenditures and acquisitions; monitor finances on regular 
basis with Operations Manager. Review with Purchasing department the 
needs of the US company (equipment/inventory); [ d]iscussions and decisions 
related to expansion efforts for retail store operations. Interviews for retail 
store manager. 
(05%) Maintain regular communication with the foreign parent company. 
The Petitioner included the names, position titles, and salaries ofthe 12 employees it claimed as part 
of its organizational hierarchy, stating that the organization is comprised of a general manager, an 
administrative assistant, two purchasing managers, a customer service manager, an operations 
4 
Matter ofC-B-USA, Inc. 
manager, a financial department position, a senior website department position, two website team 
members, a sales coordinator, and a customer service assistant. 
The Petitioner's supporting documents also include translations of business emails addressed to and 
originating from the Beneficiary. A number of the emails indicate that the Beneficiary was directly 
involved in daily operational issues concerning product orders and invoices. Although it is likely 
that these email communications are part of the Beneficiary's responsibility for "communicat[ing] 
with the various suppliers, distributors, and potential business customers and/or collaborators," 
which are activities that the Petitioner included in the above percentage breakdown, the record does 
not clarify precisely how much time the Beneficiary allocated to these non-managerial tasks, which 
were grouped together with other job duties. 
Looking to the percentage breakdown that was included in one of the supporting statements, we find 
that the job description was overly vague and thus did not convey a meaningful understanding of the 
actual tasks the Beneficiary would undertake on a daily basis. While the Petitioner indicated that the 
Beneficiary would allocate 45 percent of his time to monitoring employee activities, meeting with 
the company's managers and various staff members, hiring and firing employees, and reviewing 
reports, these broadly stated duties do not equate to a detailed delineation of his actual daily 
activities or the amount of time he would spend on specific tasks within this category. The 
Petitioner did not clarify the frequency of the Beneficiary's meeting with each targeted employee or 
the outcome of those meetings, which may provide insight as to what actions the Beneficiary was 
expected to take based on the content of the meetings. Conclusory assertions regarding the 
Beneficiary's employment capacity are not sufficient. 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); Avyr Assocs .. Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). 
Further, the Petitioner did not provide sufficient information to establish that the Beneficiary's 
responsibility for identifying new markets and services, networking, attending trade shows, traveling 
to meet with suppliers, distributors, and prospective customers, reviewing purchases, or preparing 
the company's monthly, quarterly, and annual budgets are managerial-level tasks. These duties are 
among the responsibilities that would require 50 percent of the Beneficiary's time. As the job 
description did not assign time allocations to individual job duties, it is unclear how much of the 
Beneficiary's time would be allocated to each of these operational and administrative tasks. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" employed in a managerial or executive capacity. See also, 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); Matter ofChurch Scientology Jnt'l, 19 I&N Dec. 593,604 (Comm'r 
1988). Thus, without a proper delineation of tasks and the specific amount of time the Beneficiary 
would allocate to each task, we cannot determine that the Beneficiary would be employed in a 
primarily managerial capacity. 
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(b)(6)
Matter ofC-B-USA . Inc. 
The Director issued a request for evidence (RFE), instructing the Petitioner to submit, in part, a 
breakdown of the Beneficiary's job duties and the time allocated to each specific duty to establish 
that the Beneficiary will be employed in a managerial capacity. 
ln response to the RFE, the Petitioner submitted an updated statement, signed by the Beneficiary , 
who explained that since the petition was originally filed, the company ' s business activities had 
changed and exclusively included operating a retail store, engaging in the online sales of vitamins 
and supplements, and providing pharmaceutical marketing services to companies that operate in 
Brazil and the United States. The Petitioner stated that it was no longer engaged in the export of 
approved prescription drugs to Brazil and was operating with a staff of 10, rather than 12, 
employees. 
The Petitioner provided a new job description for the Beneficiary that reflected his role in light of 
the changes in the company's organizational hierarchy and business operations. The new job 
description subdivided the Beneficiary 's position into eight sections containing multiple job duties 
and responsibilities , with a total of 23 duties listed. . Upon review , this job description , which 
included multiple references to positions that were not part of the Petitioner's organizational 
hierarchy at the time of filing, was intended to convey the Beneficiary's duties at the time of the 
RFE response, approximately 2 years after the date of filing. The Petitioner did not expand upon the 
job description submitted at the time of filing. 
The Petitioner also provided an updated organizational chart and job descriptions for members of its 
current staff, including the operations manager, the marketing manager , financial and store 
managers , an outside sales representative /export control, a purchasing representative , a store 
associate, an inventory control/shipping clerk, and a data entry employee . We note that, with the 
exception of the position of operations manager , the positions did not exist within the Petitioner 's 
organization at the time the petition was filed. 
In denying the petition , the Director found that the Petitioner's descriptions of the Beneficiary 's 
duties were too general to establish that his duties would be primarily managerial in nature. The 
Director also found that there were inconsistencies in the record with regard to the Petitioner's 
business operation and staffing and noted that the Petitioner's retail store, where the store manager 
works , is a separate legal entity from the Petitioner itself. The Director questioned whether the 
Beneficiary 's employment with the Petitioner is full-time based on his indirect supervision of an 
employee who works for which is a separate legal entity that shares a 
fictitious name - with the Petitioner, as indicated in two printouts from the 
Florida Department of State Division of Corporations? 
2 The Petitioner submitted evidence showing the establishment of two related Florida Limited Liability Companies 
(LLCs) in 2012 - and It has not claimed that either entity was 
operational at the time of filing. It appears that the latter entity served as the employer of the Petitioner's claimed retail 
store workers once the store opened for business on a date subsequent to the filing of the petition. The Petitioner has not 
sufficiently documented the ownership of either entity, and has claimed that either the Beneficiary or the Petitioner own 
6 
(b)(6)
Matter ofC-B-USA, Inc. 
On appeal, the Petitioner submits a brief explaining that what the Director perceived as 
inconsistencies between the Beneficiary's job duties and the company's organizational chart were 
actually just evidence of a change in circumstances that materialized after the petition was filed. The 
Petitioner states that shortly after filing it opened a retail operation, which resulted in organizational 
changes that affected the Beneficiary's duties going forward. The Petitioner also disputes the 
Director's criticisms of the submitted job descriptions and resubmits the job description provided in 
response to the RFE. 
Upon review, we note that the initial job description and the Petitioner's supporting statement 
indicate that the Petitioner was not operating a retail store at the time of filing. Therefore, we will 
not consider the retail store, or any business activity that stems from the store, in our assessment of 
whether the Beneficiary was eligible for classification as a multinational manager at the time of 
filing. A petitioner must establish eligibility at the time of filing and must continue to be eligible for 
the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A petition may not be approved at a future 
date after the Petitioner or Beneficiary becomes eligible under a new set of facts. Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
While we recognize that a significant amount of time passed between the initial filing and the 
issuance of the RFE, the Petitioner must still establish that the Beneficiary was eligible for the 
benefit sought when it filed the petition. Therefore, although the second job description did not 
introduce inconsistences, as perceived by the Director, it is not relevant to our determination of the 
Beneficiary's initial eligibility and will not be discussed here. As noted above the initial descriptions 
of the Beneficiary's duties were vague and did not sufficiently convey the nature of his day-to-day 
tasks as of the date of filing. This deficiency was not cured as a result of the Petitioner's submission 
of an updated position description that was prepared 2 years later and after the Petitioner had 
undergone changes in the nature of the business and the composition of its staffing. Even if we 
determined that the lengthier description submitted in response to the RFE and re-submitted on 
appeal was sufficient to establish the Beneficiary's employment in a managerial capacity as of 2015, 
the evidence remains deficient to establish the Beneficiary's eligibility as of January 2013. 
In light of the Petitioner's changed business operation and the overall lack of a comprehensive job 
description specifying the Beneficiary's job duties during the relevant time period, we cannot 
conduct a meaningful analysis as to the nature of the job duties assigned to the Beneficiary at the 
time of filing. 
the LLCs. We note that publicly available information from the Florida Department of State shows that 
voluntarily dissolved in April 2015 while the status of is currently "inactive" 
due to an "involuntary dissolution." See Website of Florida Department of State, https://www.sunbiz.org (accessed on 
Feb. 27, 2017). Therefore , even if we reviewed the Petitioner's updated job descriptions, structure, and business 
activities, we would need additional evidence of the relationship between the Petitioner and these LLCs and evidence to 
show the nature and scope of its current operations. A petitioner's burden to establish eligibility is not discharged until 
the immigrant visa is issued . Tongatapu Woodcraft of Haw., Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
7 
(b)(6)
Matter ojC-B-USA , Inc. 
2. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed managerial capacity of a beneficiary, 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 an understanding of a beneficiary 's actual dutie s and role in a busine ss. 
The statutory definition of "managerial capacity" allows for both "personnel managers " and 
"function managers ." See section 10l(a)(44)(A)(i) and (ii) of the Act , 8 U .S.C. § 110l(a)(44)(A)(i) 
and (ii). Here, the Petitioner has claimed that the Beneficiary would be employed as a personnel 
manager. 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 emplo yees supervised are professional. " Section 
· 10l(a)(44)(A)(iv) of the Act; 8 C.F.R. § 204.5(j)(4)(i) . If a beneficiar y directl y supervises other 
employees, the beneficiary must also have the authority to hire and fire those emplo yees , or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 204 .5(j)(2) . 
The Petitioner provided evidence to show that at the time of tiling it had 12 employees. The 
Petitioner's organizational chart from January 2013 depicts the Beneficiary at the top of the 
hierarchy with an administrative assistant and an operations manager as his direct subordinates. The 
operations manager is depicted as supervisor of a purchasing manager , a customer service manager , 
a sales coordinator , a financial department with one employee whose title was not specified , and the 
apparent head of the website department , whose title is not specified . T he chart depicts a customer 
service assistant who reported to the customer service manager and three lower-level employee s in 
the website department- the purchasing manager for the supplement divi sion and two website team 
employees. 
Although the chart included vacant positions that represented prospective hires who would wcirk at 
the as previously discu ssed, the store, which was e stablished as a separate 
entity , was not operating at the time of filing and is therefore not relevant to our discussion of 
whether the Beneficiar y' s proposed position with the Petitioner would be in a managerial capacity. 
While the Petitioner did submit evidence to document its employment of the individuals named on 
its January 2013 organizational chart, the record lacks adequate evidence to establish that the 
Beneficiary would be relieved from allocating a significant amount of his time to non-managerial 
tasks, such as carrying out operational and administrative functions as well as overseeing non­
managerial, non-professional , or non-supervisory subordinate employees. The Petitioner did not 
provide position descriptions or educational requirements for the employe es identified on its initial 
organizational chart. Without this information, we cannot determine whether the subordinate staff 
were emplo yed as managers , ·supervisors or professionals , nor can we determine to what extent they 
relieved the Beneficiary 
from involvement in the company 's day-to-da y operations. 
8 
(b)(6)
Maller ofC-B-USA , Inc. 
Although the Petitioner provided job descriptions for the positions that were tilled at the time of its 
RFE response, such information is not relevant for the purpose of evaluating the Petitioner's 
organizational hierarchy at the time the petition was tiled, when the Petitioner had to allocate its 
resources, including personnel, to exporting approved prescription drugs and vitamin supplements to 
Brazil and providing consulting and marketing services to companies operating in the U.S. and 
Brazilian markets. While the Petitioner provided various email correspondences and business 
invoices that indicate that it had personnel to purchase and sell merchandise, this same evidence 
indicates that the Beneficiary was involved in these transactions and suggest that many of the 
employees reported to him, rather than to the operations manager as indicated on the organizational 
chart. 
In addition, it is unclear who was providing the company's pharmaceutical consulting and marketing 
services at the time of filing. The Petitioner ' s organizational chart did not include any marketing or 
consulting personnel, nor is there any other evidence on record that would establish who within the 
organizational hierarchy at the time of filing was assigned these key service-providing tasks . 
Despite claiming in an original supporting statement that the Beneficiary "established a network of 
U.S. service providers " and that he "has engaged the services of various outside professionals ," the 
Petitioner has not provided sufficient evidence to document this contracted or external staff or the 
services they provided for the Petitioner at the time of filing. The Petitioner must support its 
assertions with relevant , probative, and credible evidence. See .Matter qf' Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). 
While the Petitioner provided various documents showing that a number of client companies hired 
the Petitioner to assist them in th~ marketing and distribution of their respective products , these 
contracts only establish the nature of the Petitioner's business activity , but do not corroborate the 
Petitioner's claim that it retained the assistance of outside contractors and representatives to help 
them fulfill their contractual obligations with client companies. Only one such agreement was 
provided to show that on _ 2012, the Petitioner entered into a sales representation agreement 
with where the latter e.I_ltity agreed to represent the Petitioner and "expand its 
presence in the Brazilian market." However , the Petitioner provi~ed no invoices or other evidence 
to show that the representing company was actuaiJy compensated for work performed as the 
Petitioner ' s sales representative. Without adequate supporting evidence , we · cannot rule out the 
possibility that the Beneficiary himself was directly involved in providing the consulting and 
marketing services to the Petitioner ' s clients. The Petitioner has not provided sufficient evidence to 
establish that it had the necessary personnel to carry out the key operational tasks that were 
necessary for the Petitioner's successful daily function. 
We further note that the Petitioner did not establish that the Beneficiary ' s role was primarily to 
oversee the work of managerial, professional, or supervisory pers01mel. While the Petitioner 's 
original organizational chart indicates that an administrative assistant and an operations manager 
were the Beneficiary 's only subordinates , the original job description indicates that the Beneticiary 's 
position involved his " [m]onitor[ing] the activities of all employees," which included meeting 
9 
Matter ofC-B-[JSA, Inc. 
regularly with not only his direct subordinates, but also with the sales coordinator, both purchasing 
managers, the sales coordinator, and the website head. Despite the managerial titles of the 
purchasing managers, the Petitioner's organizational chart does not shO\v that they had subordinate 
employees such that their respective positions could be deemed managerial or supervisory, nor does 
the record contain any evidence about their respective educational backgrounds such that would 
determine that either could be deemed a professional employee. 3 The same evidentiary deficiencies 
apply to the Beneficiary's supervision of the sales coordinator, who did not have subordinates or a 
known educational background that could determine that this individual was a managerial, 
professional, or supervisory employee. Given the deficient job description in which the 
Beneficiary's numerous job duties were grouped together and assigned a single time allocation, it is 
unclear how much time the Beneficiary was expected to spend managing or overseeing specific 
employees. Further, without job descriptions and requirements for the subordinate positions, we 
cannot determine, which, if any, of the subordinate employees were managerial, professional, or 
supervisory positions. 
Based on the deficiencies discussed above, the Petitioner has not established that at the time the 
instant petition was filed, the Beneficiary would be employed in a managerial capacity. 
B. Foreign Employment in a Managerial or Executive Capacity 
The remaining issue to be addressed is whether the Petitioner provided sufficient evidence to 
establish that the Beneficiary's position as "Managing Partner" of the foreign entity was in a 
managerial capacity. 
If the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate, then the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) requires the Petitioner to submit a 
statement from an authorized official of the petitioning United States employer which demonstrates 
that, in the 3 years preceding entry as a nonimmigrant, the Beneficiary was employed by the entity 
abroad for at least 1 year in a managerial or executive capacity. 
1. Duties 
Similar to the above analysis of the Beneficiary's proposed employment with the U.S. Petitioner, \Ve 
look first to the job duties the Beneficiary performed during his employment abroad to determine 
whether his position was in a managerial capacity as claimed. 
" To determine whether the Beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum tor entry· into the field of endeavor. 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, 8 U .S.C. § l 10 I (a)(32), 
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." 
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(b)(6)
Matter ofC-B-USA, Inc. 
In one of its two supporting statements, the Petitioner provided the following description of the 
Beneficiary's former employment with the foreign parent entity: 
[The Beneficiary] was responsible for managing the foreign company~!;' entire 
operations, which included the supervision of 5 other employees below his charge. 
He directly supervised the company's Finance Manager. [She], in 
tum, supervised 2 other employees. [The Beneficiary] also was in charge of directly 
supervising the Marketing Analyst, as well as his Administrative Assistant. [He 1 also 
represented the company's interests in contracting, and ensuring that the company's 
product was, ultimately, provided in accordance with industry norms and company 
standards. He assumed the ultimate responsibility for the business and financial 
operations ofthe company[.] 
In a separate supporting statement signed by the Petitioner stated that the foreign entity 
was comprised of six employees, including the Beneficiary, and was engaged in the sales and leasing 
of hospital and medical equipment in Brazil. The Petitioner further stated that the Beneficiary's job 
duties with the foreign entity were similar to those he would perform in his proposed position as 
general manager of the U.S. organization. The Petitioner did not account tor the difl'erence in the 
nature of business conducted by the two entities or explain how, with a support staff of less than half 
of the Petitioner's employees, the Beneficiary performed "similar" job duties for the foreign entity. 
In the RFE, the Director instructed the Petitioner to submit evidence that the Beneficiary's position 
abroad was in a managerial or executive capacity. Specifically, the Director asked the Petitioner to 
provide a definitive statement from the foreign entity listing the Beneficiary's former job duties and 
the times allocated to each duty. 
In its response, the Petitioner claimed that letter "was regrettably, partially factually 
incorrect and did not provide the full scope of the foreign company's services." The Petitioner 
claimed that the foreign entity leases, but does not sell hospital and medical equipment in Brazil. 
The Petitioner further stated that the foreign entity has acted and continues to act in a 
'"representative capacity' to other businesses and entities" in Brazil's hospital and pharmaceutical 
industries. The Petitioner submitted a new statement intended to clarify the foreign entity's business 
interests and the Beneficiary's former position abroad. Specifically, the supporting statement 
indicates that in addition to leasing large hospital and medical equipment to medical facilities, the 
foreign entity provides commercial representation, which . requires "meeting with [the foreign 
entity's] business customers, gathering information from its customers, and providing 
representatives who act as agents for its business customers before the medical institutions." 
In a separate supporting exhibit, the Petitioner provided the Beneficiary's job description with time 
allocations similar in format to the job description discussed above concerning the Beneficiary's 
proposed position. The job description of the Beneficiary's former tasks and responsibilities was 
also subdivided into eight sections, each containing multiple -duties and responsibilities. The 
Petitioner also provided job descriptions for the foreign entity's in-house staff and contractors. 
11 
Matter ofC-B-USA, Inc. 
In denying the petition, the Director determined that the Beneficiary's job description was overly 
vague and did not provide sufficient information to allow for an understanding of the specific tasks 
the Beneficiary carried out on a daily basis. 
On appeal, the Petitioner maintains the claim that the Beneficiary's employment abroad was in a 
managerial capacity. The Petitioner contends that it submitted "an extensive list" of the 
Beneficiary's former duties and responsibilities that support the Petitioner's claim regarding the 
Beneficiary's employment capacity. 
With regard to the Beneficiary's job duties, we note that of the eight sections that comprised the job 
description, seven were assigned a percentage time allocation as a whole rather than to the individual 
job duties listed in the section. This format precludes a detailed analysis of the specific amount of 
time the Beneficiary dedicated to each individual task. The first section of the job description 
indicates that 8 hours (or 20%) of the Beneficiary's time were assigned to the following: overseeing 
"the entire facility," making "key decisions" regarding strategy and marketing, "launching marketing 
solutions, and developing strategic alliances"; developing plans to meet objectives, increase profits, 
and ensure business growth, and designing "economic policies to improve staff'; overseeing 
operations to ensure efficient and quality management of resources, establishing operational 
procedures, and optimizing use of human resources; directly supervising and evaluating the 
respective performances of the company's finance and marketing analysts and holding daily 
meetings with management and regular meetings with "remaining staff'; and supervising the work 
of independent contractors. Although the job description indicated that the Beneficiary established 
policies, goals, and procedures, it is unclear how this responsibility relates to or involves the 
Beneficiary's subordinate employees, whose positions were specifically named. 
The Petitioner's statements do not help us to understand the Beneficiary's specific daily tasks, as 
they rely on vague terms such as "oversee," "develop," "establish," and "evaluate" to describe what 
the Beneficiary did on a weekly basis. These statements also neglect to make a distinction between 
supervising the foreign entity's employees and evaluating their respective performances. Other than 
conveying the Beneficiary's high level of discretionary authority over the company's personnel, 
business matters, and company growth, these statements provide no real context within which we 
can determine what specific tasks the Beneficiary performed in the scope of the' foreign entity's 
specific business operation. The actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. at 1108, affd, 905 F.2d 41. 
In the next section of the job description the Petitioner indicate that the Beneficiary met "regularly," 
"daily," and "periodically" with the foreign entity's management, analysts, staff and independent 
contractors. However, the Petitioner did not explain the significance of using ditlerent terminology 
to describe the frequency of the meetings or clarify the difference between these terms. The 
Petitioner also did not specify what actions, aside from meeting with staff to gather information, the 
Beneficiary took as a result of these meetings. 
12 
A1atter r<fC-B-lJSA. Inc. 
In addition, the Petitioner did not establish that the Beneficiary's active role in finding commercial 
representatives, traveling for the purpose of pursuing new markets and building the company's 
network, and attending trade shows and conferences were managerial, as opposed to operational, job 
duties. Lastly, while the job description assigns two different time allocations to reviewing "written 
materials" and reviewing documents, it is unclear what the distinction is or hov,r the Beneficiary's 
job duties differed based on the type of document he reviewed. 
In sum, we find that the Beneficiary's job description, \vhile extensive in length, generally lacks 
informative content that would provide a meaningful understanding of the actual tasks the 
Beneficiary performed daily or the nature of those tasks. Reciting the Beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient. The Petitioner has not provided 
sufficient detail or explanation of the Beneficiary's activities in the course of his daily routine in his 
former position with the foreign entity and therefore has not established that the Beneficiary's job 
duties were primarily in a managerial capacity. 
2. Staffing 
As stated in our earlier discussion of the Beneficiary's proposed position, beyond the description of 
the job duties, USCIS reviews the totality of the record when examining the claimed managerial or 
executive capacity of a beneficiary, 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 ofthe business, and any other factors that \vill contribute to 
our understanding a beneficiary's actual duties and role in a business. 
In the present matter, the Petitioner originally claimed that the foreign entity was comprised of six 
employees, including the Beneficiary. The Petitioner stated that the Beneficiary's direct 
subordinates included a finance manager, a marketing analyst, and an administrative assistant and 
further noted that the Beneficiary had "indirect supervision ... of other employees." Based on the 
organizational chart that the Petitioner provided in support of the petition, "other employees" 
included an operations clerk, who was depicted under the direct supervision of a financial analyst,4 
and a "logistics/driver," who was depicted as the direct subordinate of the operations clerk. Neither 
the marketing analyst nor the administrative assistant was depicted as having any subordinates of 
their own. 
In the RFE, the Director raised questions about the nature of business conducted by the foreign 
entity and further noted that the foreign entity's organizational chart does not appear to include sales 
or consulting staff even though the Petitioner previously claimed that the foreign entity was involved 
in sales of medical equipment and provided a translated invoice indicating that it provided consulting 
services. 
4 It appears that the Petitioner referred to the position of financial analyst and finance manager interchangeably, although 
this discrepancy is not specifically addressed in the Petitioner's submissions. 
13 
Matter ofC-B-USA, Inc. 
In the RFE response, the Petitioner stated that the foreign entity does not sell, but rather leases 
hospital and medical equipment. The Petitioner also stated that the foreign entity generates revenue 
by providing its services in a "'representative capacity' to other business[es]." In a separate 
statement, the Petitioner noted that in addition to its six-person in-house statT, the foreign entity 
hired three independent contractors to "act as the 'commercial representatives' before medical 
facilities" and to service ongoing leases of medical equipment. The Petitioner further ciaimed that 
the financial and marketing analysts, both subordinate to the Beneficiary in his former position, 
worked as a supervisor and as a professional, respectively. The Beneficiary, in his capacity as owner 
of the foreign entity, provided job descriptions for all of the foreign entity's employees and specified 
each individual's educational level. Based on the information contained in the job description, it 
appears that the marketing analyst and the administrative assistant, who were both directly 
subordinate to the Beneficiary along with the finance manager, did not possesses bachelor's degrees 
and did not require such credentials for their positions. Therefore, the record indicates that the 
Beneficiary's former position included overseeing one supervisory and two non-professional 
employees. 
The Petitioner disputes the notion that "all employees of the company have to be at a professional 
level," asserting that the Beneficiary had managerial personnel, who managed the commercial 
representatives such that the Beneficiary did not have to act as a first-line supervisor. While the 
Petitioner is correct in stating that no entity is required to employ exclusively professional personneL 
the Beneficiary in the present matter is being presented as a personnel manager. Therefore, it is 
critical for the Petitioner to establish that the Beneficiary's former position primarily involved 
supervising and controlling the work of other supervisory, professional, or managerial employees. 
As previously discussed, 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). 
Here, the record includes an organizational chmi and job description of the Beneficiary's 
subordinates at his former position with the foreign entity. Neither of these documents establish that 
the Beneficiary allocated his time primarily to supervising a supervisory or professional staff given 
that two of the Beneficiary's direct subordinates have no subordinates of their own and lack the 
educational credentials required of a professional employee. Further, while the Petitioner claims that 
the foreign entity had "managerial personnel" who were responsible for overseeing the work of the 
independent contractors, neither the organizational chart nor any of the other submitted documents 
supports this claim. The Petitioner must support its assertions \Vith relevant, probative, and credible 
evidence. See llfal!er o(Chawathe, 25 I&N Dec. at 376. 
Next, with regard to the independent contractors, we find that their list of job duties indicates that 
they were primarily responsible for activities directly related to the lease of hospital and medical 
equipment. Namely, the job description indicates that the independent contracts spent 80 percent of 
their time on the following job duties: acting in a liaison capacity between the foreign entity and 
hospital, clients, and equipment manufacturers; communicating regularly with the foreign entity to 
14 
Matter ofC-B-u~)A, Inc. 
advise on customer issues and complaints; leasing hospital and medical equipment; making 
presentations and communicating with contracts and government entities; "[r]un[ning] the lease 
process from start to finish"; and making changes to the lease. Although the job description 
indicated that the independent contractors were also responsible for "[ o ]ther duties as requested by 
[the] Managing Partner," it is unclear what job duties fell within this undefined category; nor is there 
any indication that the duties of these contractors included actually selling the services that they 
provided or acting in a consulting capacity on behalf of the foreign entity. In reviewing the job 
duties of the marketing analyst, we note that he too \Vas not assigned any marketing or sales tasks, 
but rather focused on analyzing existing marketing campaigns. 
In the denial, the Director properly found that the Petitioner's submissions did not address the issues 
that the RFE raised regarding the lack of evidence establishing who sold the foreign entity's services 
to clients and who provided consulting services on the foreign entity's behalf. The Director 
specifically noted that the Petitioner provided "many invoices" indicating that the foreign entity 
provided "business advice" to clients. 
On appeal, the Petitioner specifically rejects the contention that the foreign entity had a limited 
number of employees, pointing to the foreign entity's July 2010 organizational chart, which 
indicates that the foreign entity had five employees, not including the Beneficiary, at the time of the 
Beneficiary's employment abroad. The Petitioner does not, however, explain why the foreign 
entity's six-person staff should be considered sufficient for the purpose of employing the Beneficiary 
in a managerial capacity as he was claimed to have been employed. Nor does the Petitioner provide 
evidence to show that the foreign entity was adequately staffed with employees who assumed the 
company's marketing and sales tasks. 
A company's size alone may not be the determining factor in denying a visa petttiOn for 
classification as a multinational manager or executive without taking into account the reasonable 
needs of the organization. See section 101(a)(44)(C) of the Act. However, it is appropriate for 
USCIS to consider the size of the company in conjunction with other relevant factors, such as the 
absence of employees who \vould perform the non-managerial or non-executive operations of the 
company or a "shell company" that does not conduct business in a regular and continuous manner. 
Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Syslronics Corp. v. Ilv'S. 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). 
Based on the representations in the instant record, it does riot appear that the reasonable needs of the 
foreign company might have been plausibly met by the services of the Beneficiary, his five-person 
staff, and three independent contractors, none of whom were assigned to perform marketing or sales 
tasks. Regardless, the foreign entity's reasonable needs serve only as a factor in evaluating the lack 
of staff in the context of reviewing the claimed managerial job duties. The Petitioner maintains the 
burden of establishing that the Beneficiary was employed abroad in a primarily managerial capacity, 
pursuant to sections 101(a)(44)(A) of the Act. 
15 
Matter ofC-B-USA, Inc. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
was employed in a managerial capacity abroad. 
III. CONCLUSION 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fC-B-USA, Inc., ID# 99105 (AAO Mar. 1, 2017) 
16