dismissed EB-1C Case: Plastics Manufacturing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 8, 2023 In Re: 28804341 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, describing itself as an importer and exporter of plastic products, seeks to permanently 
employ the Beneficiary as its president in the United States under the first preference immigrant 
classification for multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Texas Service Service Center denied the petition, concluding the Petitioner did 
not establish, as required, that: (1) it had a qualifying relationship with the Beneficiary's foreign 
employer, (2) the Beneficiary would be employed in the United States in a managerial or executive 
capacity, (3) the Beneficiary was employed abroad in a managerial or executive capacity, and (4) the 
Petitioner had the ability to pay the Beneficiary's proffered wage. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because 
the Petitioner did not establish that the Beneficiary would be employed in a managerial or executive 
capacity in the United States. Since this identified basis for denial is dispositive of the Petitioner's 
appeal, we decline to reach and hereby reserve the Petitioner 's appellate arguments regarding the other 
bases of denial. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required 
to make findings on issues the decision of which is unnecessary to the results they reach"); see also 
Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on 
appeal where an applicant is otherwise ineligible). 
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 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(i)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in an executive capacity in the United States. The Petitioner does not claim on appeal that 
the Beneficiary would be employed in a managerial capacity in the United States. Therefore, we 
restrict our analysis to whether the Beneficiary would be employed in an executive capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
When examining the executive capacity of a given beneficiary, we will review 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 an executive capacity. 
8 C.F.R. § 204.5(j)(5). 
A. Duties 
To be eligible as a multinational executive, the Petitioner must show that the Beneficiary will perform 
the high-level responsibilities set forth in the statutory definition at section 101 (a)( 44 )(B)(i)-(iv) of the 
Act. If the record does not establish that the offered position meets all four of these elements, we 
cannot conclude that it is a qualifying executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in executive duties, 
as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family 
Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether a given beneficiary's 
duties will be primarily executive, 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. 
The Petitioner stated that it was formed in 2015 and engaged in recycling and reprocessing raw plastic 
materials in the United Stated, including reprocessing and manufacturing these materials into plastic 
granules and products for shipment abroad to India and Asia. The Petitioner explained that it been 
recently re-established, emphasizing its operations had been brought to "a standstill" due to tariff 
issues in China and India, costly rent, and the COVID-19 pandemic. The Petitioner stated that it 
planned on hiring new staff, establishing a new manufacturing facility, and growing over the next five 
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years. In support of the petition, the Petitioner indicated he would perform the following duties as its 
president overseeing its business operations, management, and administration: 
• Establishing the company's rules, policies and business strategies; 
• Setting up company's annual budgets and financial goals; 
• Monitoring the financial goals to be realized; 
• Presiding over the board meeting, and reporting the US business operations to the 
overseas Board of Directors for further instructions; 
• Directing to implement the company's guidelines on day-to-day business 
operations; 
• Directing and overseeing the work performance and schedules of the subordinate 
executives, managers and professional staff within the organization; 
• Directing to implement the productivity as instructed by the business plans; 
• Directing to manage the product quality control; 
• Directing to develop and maintain relationships with business-related associations, 
industry, and government officials for the best interest of the company's business 
operations; 
• Directing the company's HR matters, including organizational personnel structure, 
professional development, motivation, performance evaluation, discipline, 
compensation, personnel policies, and procedures; and 
• Deciding to hire, train and/or terminate employees to meet business requirements. 
The Director issued a request for evidence (RFE) stating that the duty description provided by the 
Petitioner was too general and vague and requested it submit additional detail as to the Beneficiary's 
daily duties. The Director asked the Petitioner to provide the percentages of time he would devote to 
each of his tasks and an explanation as to who would perform the administrative duties within the 
business, namely those directly related to its provision of goods and services. In response, the 
Petitioner submitted the same duty description provided in support of the petition and stated that his 
role would be "totally executive in nature." It further classified U.S. Citizenship and Immigration 
Services' (USCIS) effort to determine whether the Beneficiary would primarily perform executive­
level tasks as "superfluous and a waste of the agency's resources." The Petitioner emphasized two 
prior L-lA nonimmigrant petitions that were approved by USCIS on behalf of the Beneficiary and 
contended that it had met its burden regarding his executive capacity in the United States with these 
prior approvals. 1 
In denying the petition, the Director again concluded that the Beneficiary's duties were insufficient to 
establish that he would qualify as an executive under the regulations. On appeal, the Petitioner asserts 
that the Director did not adequately explain why the Beneficiary's duties were inconsistent with the 
definition of executive capacity, again emphasizing the prior approval of two L-lA nonimmigrant 
petitions on behalf of the Beneficiary. 
1 USCIS records reflect that the Petitioner had two L-lA nonimmigrant intracompany transferee petitions approved on 
behalf of the Beneficiary from December 6, 2016, to December 5, 2017, and again from December 5, 2017, to December 
4, 2019. However, USCIS records also show that his request for a further extension was denied in September 2021. 
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As a preliminary matter, the Director's decision does not indicate whether he reviewed the prior 
approvals of the other nonimmigrant petitions emphasized by the Petitioner. If the previous 
nonimmigrant petitions were approved based on the same evidence contained in the current record, 
the approval would constitute an error on the part of the Director. We are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. Matter of Church Scientology Int'!, 19 I&N Dec. 593, 597 
(Comm'r 1988). It would be unreasonable for USCIS or any agency to treat acknowledged errors as 
binding precedent. Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). Furthermore, our authority over the service centers is comparable to 
the relationship between a court of appeals and a district court. Even if a service center Director 
approved other nonimmigrant petitions on behalf of the Beneficiary, we would not be bound to follow 
the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 44 F. Supp. 
2d 800, 803 (E.D. La. 1999). In addition, even if it was determined that the Director did not give 
proper discretion to the prior L-lA approvals, it is not clear what remedy would be applicable, other 
than our appellate review here. 
In this light, it was entirely proper for the Director to have requested additional information and 
evidence specific to the Beneficiary's proposed U.S. duties. The purpose of the RFE is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. § 
103.2(b )(8). Further, the Director was justified in requesting the percentage of time the Beneficiary 
would spend on his different duties. The Petitioner submitted substantial evidence reflecting the 
Beneficiary's apparent involvement in the performance of many non-qualifying operational duties 
while employed in the United States under the previously approved L-lA nonimmigrant petitions. For 
instance, the Petitioner submitted invoices from September and October 201 7 reflecting his purchase 
of boxes, pallets, and shrink wrap in amounts ranging from $1215 to $1925. Similarly, the Petitioner 
submitted other invoices from August 2017 showing the Beneficiary renting a truck on three different 
occasions. Likewise, the Petitioner provided bank records reflecting his involvement in numerous 
operational-level tasks while it claimed he was employed as an executive in the United States during 
201 7, including paying for forklift repairs, rent, electrical work, machine parts, pallets, carrier charges, 
amongst other supplies and services. The foreign employer also stated in a letter that the Beneficiary 
would be tasked with purchasing equipment to reestablish the Petitioner's plastic processing business, 
and given the Petitioner's lack of personnel, it is not clear who would perform the operational tasks 
required in completing this objective other than the Beneficiary. 
In contrast, the Petitioner provided little documentary evidence demonstrating his performance of 
qualifying executive-level tasks while employed in the United States, such as the rules, policies, or 
business strategies he established, the annual budgets or financial goals he set up, or company 
guidelines he implemented. The Petitioner also did not specify or document the subordinates he would 
oversee as of the date the petition was filed, the productivity he would implement, product quality 
control he would manage, or the relationships he would develop and maintain with other businesses 
and government officials. In fact, the Beneficiary's proposed duty description includes little 
discussion of the Petitioner's specific plastics import business, and his duty description could apply to 
any executive acting in a business or industry. 
Although we do not expect the Petitioner to articulate and document every executive-level task to be 
performed by the Beneficiary, it is reasonable to require that it would provide sufficient detail and 
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documentation to sufficiently corroborate his performance of qualifying duties, particularly since it 
asserts that he acted in this role in the United States as an L-lA nonimmigrant for approximately three 
years from 2016 to 2019. As such, it would be reasonable to expect that there would be sufficient 
details and supporting documentation to substantiate the Beneficiary's executive-level tasks during 
this time, and thereafter. Specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive 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.2d41 (2d. Cir. 1990). 
Contrary to the Petitioner's assertions otherwise, whether the Beneficiary is an executive employee 
turns on whether the Petitioner has sustained its burden of proving that his duties would be "primarily" 
executive. See sections 10l(a)(44)(B) of the Act. Here, the Petitioner does not credibly articulate and 
document what proportion of the Beneficiary's duties would be executive functions and what 
proportion would be non-qualifying. The Petitioner submitted evidence indicating the Beneficiary's 
prior involvement in numerous administrative or operational tasks, but it did not quantify the time he 
would spend on these duties as compared to executive-level tasks. For this reason, we cannot 
determine whether the Beneficiary would primarily perform the duties of an executive. See IKEA US, 
Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary holds a valuable position within the organization, the fact that he will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational executive within the meaning of section 101(a)(44)(B) of the Act. The Beneficiary may 
exercise discretion over some of the Petitioner's day-to-day operations and possess some requisite 
level of authority with respect to discretionary decision-making; however, the position description 
alone is insufficient to establish that his actual duties would be primarily executive in nature. 
B. Staffing and Executive Capacity 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 101(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function as the 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." Id. 
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The Petitioner provided an organizational chart reflecting that the Beneficiary supervised a vice 
president. The vice president was shown to oversee numerous unfilled positions, including a 
purchasing and business development manager, an accounting and finance manager, a production and 
maintenance manager, and an export/import manager. Beyond this, the the chart reflected two other 
levels of employee positions shown as unfilled, including a business development representative, an 
accounts receivable/payable clerk, an assistant production manager ( overseeing twelve 
machine/production workers), and an assistant import/export manager. 
The Petitioner has not demonstrated that it is operations were sufficiently developed to support him in 
a qualifying executive capacity at the time the petition was filed or thereafter. As noted, the submitted 
organizational chart reflected that the company had only one other subordinate, the vice president, 
whose employment is notably left uncorroborated with supporting documentation. Further, the 
Petitioner appears to acknowledge that the company stopped operating after its establishment in 2015, 
indicating that it been recently "re-established," and emphasizing that its operations had been brought 
to "a standstill" due to tariff issues in China and India, costly rent, and the COVID-19 pandemic. For 
instance, the Petitioner submitted IRS Forms 1040, U.S. Individual Tax Returns for the Beneficiary 
reflecting in schedule C that the company earned only $18,500 during 2019, 2020, and 2021. Given 
that the petition was filed in November 2021, it does not appear the Petitioner was sufficiently 
operational to support employees when the petition was filed. In fact, the 2019, 2020, and 2021 IRS 
Forms 1040 show that the Petitioner had no costs during each of these years, indicating it had no 
employees and minimal operations during this time. The Petitioner's business plan also reflects 
entirely prospective hiring plans, showing plans to hire five employees during the 2023/2024 fiscal 
year, more than two years after the date the petition was filed. 
As such, the submitted evidence clearly reflects that the Petitioner did not have sufficient operations 
or employees to support the Beneficiary in an executive position when the petition was filed, where 
he would act in an elevated position and be primarily relieved from performing non-qualifying 
operational duties. In fact, as we discussed, the record shows the Beneficiary performing numerous 
non-qualifying operational tasks, such as purchasing shipping supplies, handling invoices, paying for 
rent and repairs, purchasing parts and equipment, among other similar tasks. In addition, it is not clear 
who, other than the Beneficiary, would perform the non-qualifying operational tasks necessary to re­
establish the Petitioner's business operations as indicated in support letters, such as purchasing new 
equipment and processing new hires. The immigrant classification for multinational executives is not 
a prospective petition where a beneficiary's eligibility may be established at a date following the date 
the petition was filed through future business or hiring plans. 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). 
For the foregoing reasons, the Petitioner has not demonstrated that the Beneficiary would act in an 
executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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