dismissed EB-1C Case: Plastics Recycling

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 4GP-, INC. 
APPEAL OF TEXAS SER VICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 2, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a plastics recycling and manufacturing company, seeks to permanently employ the 
Beneficiary as its president/executive director 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. § l 153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that it would employ the Beneficiary in a managerial or executive capacity. 
On appeal, the Petitioner submits additional evidence, contends that the Director did not consider the 
previously provided evidence in its totality, and asserts that the record establishes by a preponderance 
of the evidence that it will employ the Beneficiary in an executive capacity. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(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. § 204.50)(3). 
Matter of 4GP-, Inc. 
11. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The primary issue to be addressed is whether the Petitioner established that it will employ the 
Beneficiary in an executive capacity. The Petitioner does not claim that the proposed employment is 
in a managerial capacity. 
"Executive capacity" is defined as an assignment within an organization in which the employee 
primarily: directs the management of the organization or a major component or function of the 
organization; establishes the goals and policies of the organization, component, or function; exercises 
wide latitude in discretionary decision-making; and receives only general supervision or direction 
from higher-level executives, the board of directors, or stockholders of the organization. Section 
10l(a)(44)(B) of the Act, 8 U.S.C. § l 10l(a)(44)(B). 
The regulation at 8 C.F.R. § 204.5G)(5) requires the petitioner to submit a statement which clearly 
describes the duties to be performed by the beneficiary. Beyond the required description of the job 
duties, we review the totality of the evidence when examining a beneficiary's claimed executive 
capacity, 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 understanding a 
beneficiary's actual duties and role in a business. Accordingly, our analysis of this issue will focus on 
the Beneficiary's duties as well as the nature of the Petitioner's business, its staffing levels, and its 
organizational structure. 
A Duties 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definition of executive 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 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. 
In a supporting letter, the Petitioner described the Beneficiary's duties as follows: 
• Direct or coordinate the company's financial or budget activities to fund operations, 
maximize investments, or increase efficiency. 
• Confer with managers, supervisors, or staff members to discuss issues, coordinate 
activities or resolve problems. 
• Analyze operations to evaluate performance of the company or its staff in meeting 
objectives or to determine areas of potential cost reduction .... 
• Direct, plan, or implement policies, objectives, or activities of the businesses to 
ensure continuing operations .... 
• Direct or coordinate activities of the businesses concerned with production, pricing, 
sales or distribution of products. 
• Negotiate or approve contracts or agreements with suppliers, distributors, federal 
or state agencies, or other organizational entities. 
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Matter of 4GP-, Inc. 
Rather than providing a detailed description of the Beneficiary's actual day-to-day duties as president 
of its plastics recycling business, the Petitioner appears to have copied these duties nearly verbatim 
from the U.S. Department of Labor's O*Net Online occupational description for "ChiefExecutives." 1 
The regulations require the Petitioner to clearly describe the Beneficiary's duties within the context of 
its business and it cannot meet this burden by copying generic job descriptions from published 
resources. 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), 
ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
In a request for evidence (RFE), the Director advised the Petitioner that its description was inadequate 
and requested that it provide a detailed statement of the Beneficiary's duties, including an explanation 
of the specific daily tasks he will perform and the percentage of time to be spent on discrete tasks. In 
response, the Petitioner described his duties as follows: 
1. [The Beneficiary] evaluates the market for plastics and determines what product 
should be produced . . . and in what quantities. He sets the sales price and 
production levels for senior management in sales and operations. (15%) 
2. [The Beneficiary] determines the goals of the company and formulates strategy and 
plans to be implemented by subordinates. He does this by analyzing the operations 
and evaluating the performance of the staff in line with the market and the 
company's production capabilities. (15%) 
3. [The Beneficiary] confirms with the managers and supervisors who report to him 
to discuss issues and coordinate activities. He recommends solutions to address 
these issues and designates managers and supervisors ... to implement the solutions 
he mandates. (10%) 
4. [The Beneficiary] oversees the finances of the company, and has authority to bind 
the company to loans and contracts. He recommends the budget for the company 
based on information provided by the Accountant .... (30%) 
5. He has the authority to hire and dismiss staff and to approve raises, bonuses and 
designate benefits. (10%) 
6. He approves or cancels contracts with suppliers, distributors, and shipping 
companies based on recommendations from the Supply Chain Manager and the 
Operations Director who negotiates the contracts. (20%) 
While this description contains some references to the Beneficiary's claimed subordinates and the 
Petitioner's business activities, it falls short of describing the specific tasks the Beneficiary is expected 
to perform on a regular and ongoing basis. For example, the Petitioner continued to rely on 
generalities, noting the Beneficiary's responsibility to "discuss issues," "coordinate activities," and to 
determine goals and formulate "strategies and plans," without identifying or providing examples of 
any specific issues, activities, goals, strategies, or plans that would engage the Beneficiary on a daily 
basis. 
1 See U.S. Dep't of Labor, O*Net Online, Summary Report for 11-1011.00 - ChiefExecutives, https://www.onetonline.org/ 
link/ summary /11-101 1. 00. 
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Matter of 4GP-, Inc. 
In addition, some of the information provided in the position description is inconsistent with other 
evidence in the record. The description refers to the company's production levels and production 
capabilities, but the Petitioner does not have a production department or employees engaged in 
production activities, despite its claim that it does business as a plastics manufacturer and recycling 
company. 2 The Petitioner indicates that the Beneficiary delegates contract negotiations to the 
"operations director," but it also submitted letters from business associates which indicate that the 
Beneficiary is personally involved in these negotiations. For example, a partner with 
states that he "negotiated the pricing and grading of different form of plastic materials" with the 
Beneficiary. In addition, as addressed by the Director and discussed further below, some of the 
Beneficiary's supervisory responsibilities are not consistent with the Petitioner's documented structure 
and staffing levels, which makes it difficult to discern to what extent he is able to delegate non­
executive duties to subordinate staff 
On appeal, in response to the Director's determination that the position description submitted in 
response to the RFE did not sufficiently address the Beneficiary's actual daily tasks, the Petitioner 
submits two "daily calendars" for the Beneficiary. While these documents are intended to describe 
the Beneficiary's activities on a typical workday, some of the included information is vague and does 
not provide additional insight into the nature of the Beneficiary's work. For example, the Petitioner 
states that the Beneficiary designated blocks of time on these specific days to "create organization, 
vision, mission & overall direction & implement the overall strategy," work on "setting mid-term & 
long-term goals of the company," and review "company's financial & production goals." These broad 
statements do not add further specificity to the position descriptions already provided. Reciting a 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros., 724 F. Supp. at 1108, aff'd, 
905 F.2d 41 (2d. Cir. 1990). Here, the Petitioner did not provide the necessary detail or an adequate 
explanation of the Beneficiary's expected activities in the course of his daily routine. 
Further, the more specific duties listed in the "daily calendar" indicate the Beneficiary's direct 
involvement in procuring raw materials, purchasing equipment, "completing financial paperwork," 
and attending meetings with third parties which have not been adequately explained and cannot be 
deemed executive-level job duties. 
Whether the broad duties attributed to the Beneficiary qualify as executive in nature depends in part 
on whether the Petitioner established that he would have sufficient subordinate staff to supervise and 
perform the day-to-day company activities he is claimed to direct. The Petitioner emphasizes that the 
Beneficiary is at the highest level on its organizational chart and that he earns the highest salary within 
the compan y. However, the fact that the Beneficiary will direct a business as its senior employee does 
not necessar ily establish eligibility for classificat ion as a multinat ional executive. By statute, 
eligibility for this classification requires that the duties of a position be "prima rily" executi ve in nature. 
Section 10l(A)(44)(B) of the Act. Even though the Beneficia ry may exercise discretion over the 
Petitioner ' s operations and possess authority with respect to discretiona ry decision-ma king, the broad 
2 Specifically, the Petitioner states that it "specializes in recycling and processing different types of recyclable plastics. 
We purchase bulk quantities of plastics, manufacture refined plastic granules and resins for use in manufactur ing finished 
plastic products, and sell the plastics to plastics manufacturers . " 
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Matter of 4GP-, Inc. 
position descriptions alone are insufficient to establish that his employment will be in an executive 
capacity. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, we take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act. 
The Petitioner stated on the Form 1-140 that it had 11 employees at the time of filing in September 
2017. The Petitioner provided an organizational chart depicting two departments and four tiers of 
employees subordinate to the Beneficiary as follows: 
President (the Beneficiary) 
Vice President of Marketing 
Senior Sales Manager . 
Assistant Sales Manager 
Vice President 
Director of Operations 
Accountant 
Warehouse Manager 
Forklift Operator 
Welder 
Warehouse Loader 
The Petitioner provided a copy of the Beneficiary's IRS Form W-2 for 2016 in support of the petition, 
but did not provide evidence to corroborate the structure and staffing levels depicted in the 
organizational chart. 
In its response to the Director's RFE, submitted in June 2018, the Petitioner provided an updated 
organizational chart with different employees in the positions of director of operations, accountant, 
warehouse manager, forklift operator and welder. The new chart also included a "cashier" and did not 
include the "warehouse loader" position. The Petitioner provided a copy of the IRS Form W-2 that it 
issued to the Beneficiary in 2017. It also submitted copies of 2017 IRS Forms W-2 issued by 
(the Petitioner's 50% shareholder) to six employees who appeared on the updated 2018 
organizational chart. These employees included: r (director of operations), (welder), 
(forklift operator), ___ (warehouse manager), (accountant), and 
'.cashier). 
However , the Petitioner did not claim to employ these six individuals when it filed the petition in 2017. 
If it did employ these individuals at the time of filing , it is unclear why their names did not appear on 
the initial organizational chart, and the Petitioner did not provide an explanation for this discrepancy. 
Moreover , the Petitioner did not submit evidence that it, or J , paid any of the employees who 
appeared on the initial organizational chart , other than the Beneficiary himself. Finally , although the 
Petitioner ' s two vice presidents and sales managers appeared on both versions of the organizational 
chart, the Petitioner did not submit evidence of any payments to these four employees at the time of 
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Matter of 4GP-, Inc. 
filing or in response to the RFE. The Petitioner must resolve these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Due to these unresolved inconsistencies and omissions, we cannot determine that the organizational 
chart provided at the time of filing was accurate, that the updated chart was accurate, or who the 
Petitioner actually employed at any given time. 
We acknowledge the Petitioner's 
Beneficiary, is on the payroll of 
response to the RFE: 
claim that every employee of its company, other than the 
. The Petitioner provided the following explanation in 
While Petitioner is responsible for employing its own employees, the two companies 
share some resources, including to share use of the storage yard, and to share some 
accounting processes. As such, ! . issues payroll, and then is compensated 
by [the Petitioner]. By doing this, [the Petitioner] is able to reduce unnecessary costs 
on its business. 
The Petitioner did not submit additional evidence in support of its claim that the individuals who 
received Form W-2s from are the Petitioner's employees, rather than employees of 
, such as evidence to support its claim that it compensates for their salaries. The 
Director therefore determined that the Petitioner had not substantiated its claim that it has 11 
employees. For this reason, the Director declined to consider the personnel who were not paid by the 
Petitioner, and concluded that the evidence reflected that the Beneficiary does not have subordinates. 
On appeal, counsel asserts that the Director's conclusion was "misplaced" and further explains the 
relationship between the Petitioner and as follows: 
Although payroll is conducted through . these individuals remain employed 
by [the Petitioner]. [The Petitioner] and are joint ventures. . .. The two 
companies share a building, equipment, and other necessaries [sic] for the functionality 
of the business. Rather than directly paying the salaries of subordinate employees, [the 
Petitioner] pays a third party payroll company, , for its payroll to be 
conducted through foes not use their own funds on the 
salaries of [the Petitioner's] employees .... This accounting procedures is not the sole 
determinative factor of the employer-employee relationship between [the Petitioner] 
and its subordinate employees. 
The Petitioner submits copies of invoices issued by to between 
Decemher 2017 and April 2018, as well as its bank statements indicating that it transferred funds to 
to cover the amounts invoiced. However, this evidence is insufficient to demonstrate that 
the Beneficiary had ten subordinates at the time of filing as claimed. First, as noted, the Petitioner has 
not provided any evidence of wages paid to the individuals it depicted on the organizational chart 
submitted in September 2017. 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). 
.
Matter of 4GP-, Inc. 
Further, the Petitioner has not adequately described or documented its staffing arrangement with 
The Petitioner has emphasized that the two companies share the same location. However, 
the evidence of record indicates that the Petitioner is located in Texas and , is 
located in Texas. According to the submitted Form W-2s issued by , the employees 
reside in or near approximately 230 miles from the Petitioner's documented location, which 
tends to undermine the Petitioner's claim that they work exclusively for the Petitioner in r-
The Petitioner has not explained how the two companies share their locations and resources and the 
record does not contain any agreements, statements from ___ or other evidence corroborating 
the arrangement described by the Petitioner. 
Citing to Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016) the Petitioner asserts 
that the Director improperly excluded the staff who are not direct employees and by doing so, failed 
to consider the Beneficiary's role within the wider qualifying organization. However, the record lacks 
evidence that the employees on the payroll of actually participate in the day-to-day 
operations of the petitioning company and work under the Beneficiary's supervision, such that they 
can be considered part of the Petitioner's organization for purposes of determining whether the 
Beneficiary will be employed in an executive capacity. 
In addition, while the Petitioner consistently claims to have ten subordinate staff working under the 
Beneficiary, it submitted only six W-2s for claimed employees who are paid through . and, 
as noted, these are not the same employees the Petitioner claimed to employ at the time of filing. 
Adding further confusion, the Petitioner now submits payroll lists for ~ that include 19 to 20 
staff, and the submitted invoices and payments appear to show that the Petitioner covers the wages of 
all staff on payroll. The Petitioner has not explained why it would compensate 
for the salaries and wages of all ~~- --~ employees if only a fraction of these staff actually work 
for the Petitioner. For these reasons, the newly submitted evidence of the Petitioner's funds transfers 
to is insufficient to document the Petitioner's claimed structure and staffing levels. Further, 
this new evidence post-dates the filing of the petition and cannot establish eligibility at the time of 
filing. 
The Petitioner also emphasizes on appeal that it can establish an employee-employee relationship with 
employees, citing to a 2010 USC IS policy memorandum. 3 The Petitioner asserts that "the 
only ties" the Beneficiary's subordinates have to is through accounting," and that the work 
they conduct is "under the direction of [the Petitioner], for the benefit of [the Petitioner] only." The 
Petitioner states that it alone maintains the right to control the manner and means by which the 
employees' work product is accomplished, and asserts that "under the totality of the circumstances, 
the payroll alone is not sufficient to sever the employer-employee relationship." For the reasons 
already discussed, the Petitioner has not submitted sufficient evidence in support of its claim that a 
portion of -based employees work exclusively at the Petitioner' s based 
facility. The record does not contain supporting evidence such as employment contracts, any 
agreements between the Petitioner and · or other documentation that supports the 
Petitioner 's claim that some individuals or ___ ' payroll are the Petitioner 's own employees, 
3 Memorandum from Donald Neufeld, Associate Director, Service Center Operations, USCIS, HQPRD 70/6.2.8, 
Determining Employer -Employee Relationship for Adjudication of H -1 B Petitions, Including Third -Party Site Placements 
(Jan. 8, 2010). 
.
Matter of 4GP-, Inc. 
and that they have been since the time of filing. As discussed, the Petitioner's newly submitted 
evidence of payments made to is not sufficient to show that some of employees 
actually work for the Petitioner. 
Finally, we emphasize that the Petitioner still has not documented the employment of the three 
individuals who make up its claimed sales and marketing department, or the other seven individuals 
that it depicted on its initial organizational chart submitted with the petition. It has not submitted any 
evidence of payments to prior to December 2017, and has not established who it actually 
employed at the time of filing. 
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. Section 10l(a)(44)(B) of the Act. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of that organization, and they 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 the senior managerial employee. Here, the Petitioner consistently indicates 
that the Beneficiary develops its strategies and goals, makes discretionary decisions, and directs the 
entity as a whole. However, it has not supported its claim that he primarily performs these higher­
level functions, and has not sufficiently shown how he is relieved from involvement in the day-to-day 
operations of the company due to the lack of clear and consistent evidence showing who was actually 
working for the company when it filed the petition. 
We must take into account the reasonable needs of the organization if considering the Petitioner's 
staffing levels; a company's size alone may not be the only factor in determining whether the 
Beneficiary is or would be employed in a managerial or executive capacity. See section 10l(a)(44)(C) 
of the Act. However, it is appropriate 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. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when we note discrepancies in the record. See Systronics, 153 F. Supp. 2d at 15. 
Here, the Petitioner claims to operate a plastics recycling and manufacturing business with a sales and 
marketing department and an operations department, both led by vice presidents whose claimed 
employment has not been verified. As noted, the Petitioner has not corroborated its employment of 
any of its claimed staff in the sales and marketing department. It has submitted two different depictions 
of the staff of its operations department, but has not sufficiently established the staffing and structure 
of that department at the time of filing. It has also not claimed to employ any staff who actually engage 
in performing the plastics recycling and plastic pellet manufacturing activities that the Petitioner 
claims to perform at its worksite. Due to these deficiencies, it is difficult to discern whether or how 
the Beneficiary is relieved from significant involvement in the administrative and operational aspects 
of the business. Further, we cannot overlook the fact that the Petitioner has not adequately described 
the Beneficiary ' s duties, As a result, it has not met its burden to establish how the administrative, sales, 
purchasing, warehousing, financial, operational, first-line supervisory, and other non-executive duties 
of the business are distributed among any subordinates, nor has it adequately supported its claim that 
Matter of 4GP-, Inc. 
the Beneficiary would primarily spend his time focused on the company's strategies, policies, and 
objectives. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufficiently relieved from involvement in the day-to-day operations of the company, despite his senior 
position in the company hierarchy. Accordingly, the Petitioner has not met its burden to show that his 
duties would be primarily executive in nature as of the date of filing. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of 4GP-, Inc., ID# 4943566 (AAO May 2, 2019) 
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