dismissed EB-1C Case: Printing Rollers Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Z-R-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 12,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a manufacturer of printing rollers, seeks to permanently employ the Beneficiary as its 
director of operations under the first preference immigrant classification for multinational executives 
or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S.C. 
§ 1153(b )(1 )(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, concluding that the evidence of record did 
not establish that: (1) the Beneficiary will be employed in the United States in a managerial or 
executive capacity; and (2) the Petitioner has the ability to pay the Beneficiary's proffered wage; 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
disregarding existing law and policy. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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 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. 
Matter ofZ-R-, LLC 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(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. § 204.50)(3) states: 
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager 
must be accompanied by a statement from an authorized official of the 
petitioning United States employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside 
the United States for at least one year in a managerial or executive 
capacity by a firm or corporation, or other legal entity, or by an affiliate 
or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same 
employer or a subsidiary or affiliate of the firm or corporation, or other 
legal entity by which the alien was employed overseas, in the three years 
preceding entry as a nonimmigrant, the alien was employed by the entity 
abroad for at least one year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
least one year. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
will employ the Beneficiary in a managerial capacity. The Petitioner does not claim that it seeks to 
employ the Beneficiary in an executive capacity. Therefore, we restrict our analysis to whether the 
Petitioner will employ the Beneficiary in a managerial capacity.
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1 
At one point, the Petitioner's introductory letter paraphrased elements of the'statutory definition of executive capacity, 
but in that same letter and throughout the proceeding, the Petitioner has consistently and exclusively referred to the 
Beneficiary's position as a "managerial position." The Petitioner does not set forth a sufficient or coherent claim of 
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Matter ofZ-R-, LLC 
Section 10l(a)(44)(A) of the Act, 8 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 manages 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 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. 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. 
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 10l(a)(44)(C) ofthe Act. 
The Petitioner asserts that it seeks to employ the Beneficiary as a "function manager." The term 
"function manager" applies generally when a beneficiary's managerial role arises not from 
supervising or controlling the work of a subordinate staff of managers, supervisors, or professionals, 
but instead from responsibility for managing an "essential function" within the organization. See 
section IOI(a)(44)(A)(ii) of the Act. The statute and regulations do not define the term "essential 
function." If a petitioner claims that a beneficiary will manage an essential function, that petitioner 
must clearly describe the duties to be performed in managing the essential function, i.e., identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion 
of the beneficiary's daily duties dedicated to managing the essential function. See 8 C.F.R. § 
204.5(j)(5). In addition, a petitioner's description of a beneficiary's daily duties must demonstrate 
that the beneficiary will manage the function rather than perform the duties related to the function. 
executive capacity simply by quoting the definition of that term. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. II 03, 
1108 (E.D.N.Y. 1989), aff'd. 905 F.2d 41 (2nd Cir. 1990). j 
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Matter ofZ-R-, LLC 
The Petitioner filed Form 1-140 on November 21, 2014. On the Form I-140, the Petitioner indicated 
that it had six current employees in the United States. 
The Petitioner stated: 
[The Beneficiary] is being offered the permanent functional manager position of 
Director of Operations and his duties will involve the design, development, and 
implementation of product strategy and oversight of operations for the entire range of 
products .... 
In this position, [the Beneficiary] will continue to oversee the individuals who 
perform the day to day tasks in Sales, Production, Quality Assurance, Finance, and 
Personnel that are necessary for our continuing operations. . . . " 
He does not perform the functions required for our day to day operations but rather 
manages the employees who do perform the functions themselves. 
The Petitioner's organizational chart showed the following structure: 
President 
I 
Director or Operations [the Beneficiary] 
Administrative/Logistics ~ 
I I I 
Sales Manager Sales Manager Sales Finance/ 
(Cen. America) (S. America) Consultant Controller 
(contractor) I 
Bookkeeper (vacant) 
I 
Production 
Machinist/QA 
The Petitioner submitted job descriptions corresponding to the titles on the organizational chart. The 
Petitioner stated that the QA manager position was vacant,
2 
and that "until a new Quality Assurance 
manager is hired, the Logistics Manager and Production Manager will perform the required Quality 
Assurance duties." The Petitioner also, however, referred to "the departure of [the] Production 
Manager," and the Petitioner identified no logistics manager. The organizational chart and 
accompanying job descriptions did not show a QA manager, logistics manager, or production 
manager. Temporary vacancies do not account for their omission, because the chart included the 
vacant bookkeeper's position, and a financial controller's position that was vacant at the time the 
Petitioner prepared the petition (although the Petitioner identified a person who would soon fill the 
position). The Petitioner indicated that that its machinist "also performs the duties of the Production 
2 A payroll journal in the record indicates that the QA manager received his last paycheck on March 28, 2014, nearly 8 
months before the petition's filing date. 
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Matter of Z-R-, LLC 
Manager and assists with technical Quality Assurance responsibilities," but the Petitioner did not 
specify those duties and responsibilities. Machining is an operational function, and the delegation of 
managerial duties to the machinist does not make the machinist primarily a manager. 
A quarterly payroll report indicated that the Petitioner had five employees as of September 30, 2014: 
• Director of Operations (the Beneficiary) 
• Administrative/Logistics 
• Sales Manager (Central America) 
• Production Machinist/Quality Assurance 
• Bookkeeper 
Payroll documents indicate that the Petitioner had a production manager who left the company in 
March 2014. The Petitioner acknowledged that the bookkeeper left the company a week before the 
petition's filing date and had not yet been replaced. The Petitioner stated that it had hired a new 
financial controller who "[w]ill begin employment [in] November 2014." It is not clear whether that 
person had begun working as of the petition's filing date on November 21, 2014. 
The Beneficiary's three-page job description, too long to quote here in full, included the following 
major categories: 
1. Sales Management Strategy (30% of his time will be spent on these duties): 
' a. Supervision of Sales Manager and Sales Consultant { 15% of time) ... 
b. Sales/Marketing finance/budgeting: ( 1 0% of time) ... 
c. Specifically manage the sales activities related to high value accounts 
including price negotiation and discounts. (5%) 
2. Production Management/Strategy (30% of his time will be spent on these duties): 
a. Supervision ofProduction Manager: (20% of time) ... 
b. Manage communication lines with managers, suppliers, and procurement 
departments and resolve any escalated issues. (5%) 
c. Review industry literature and trade publications to keep abreast of new 
technology applicable to the production process. (2-5%) 
3. Quality Assurance (QA) Management/Strategy (20% of his time will be spent on 
these duties): 
a. Supervision of QA Manager: (1 0% oftime) ... 
b. Conduct and document process and system audits using written procedures as 
audit standards .... (5%) 
c. Review updated inspection procedures, protocol and checklists. (5%) 
4. Finance/Personnel (20% of his time will be spent on these duties): 
a. Supervision ofFinance Manager: (5% oftime) ... 
b. Financial Strategy/Plaiming: (5% oftime) ... 
c. Personnel Management: (5% oftime) ... 
d. Advise president on the financial implications of any contracts into which the 
Corporation may enter. (5%) 
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Matter ofZ-R-, LLC 
Within the categories listed above, the Petitioner included tasks such as meetings, formulating sales 
policies and procedures, establishing budgets, and spot-checking products. The category of 
"Supervision of Production Manager" included the following tasks, among others: 
1. Periodically review costs and performance of production department and meet 
with production personnel. ... 
2. Establish and define production goals ... , and review production department's 
performance to ensure goals are met. 
The list of duties indicates that the Beneficiary spends 30 percent of his time supervising the 
production manager and the QA manager, but at the time of filing, the Petitioner did not employ a 
production manager or a QA manager. A petitioner must establish eligibility at the time of filing the 
petition. See 8 C.F.R. § 103.2(b)(l). 
The Petitioner stated that the Beneficiary's supervision of the QA manager included "feedback to 
assemblers regarding accuracy of assembly procedures." The Petitioner's organizational chart does 
, not show any assemblers, and the Petitioner · did not submit contracts, invoices, or other 
documentation to shO\v that the company outsources the assembly work. 
The Director issued a request for evidence (RFE), stating that the Beneficiary's job description is 
questionable because it refers to workers that the Petitioner does not employ, such as a quality 
assurance manager, and to a production department that the Petitioner does not appear to have. 
In response, the Petitioner submits copies of payroll journals from March 2014 through December 
2015. These records show· fluctuations in staffing but are consistent with the earlier information that 
the Petitioner had three subordinates on staff, not including the Beneficiary, at the time it filed the 
petition. The record also shows that the individual hired as a finance/controller around the time of 
filing worked for the Petitioner for only a short time before leaving the company in March 2015. 
The payrolf documents do not show that the Petitioner ever filled all the positions on the 
organizational chart at any one time. 
To show operational and administrative functions performed by non-employees, the Petitioner 
documented payments to its sales consultant (named on the organizational chart) and payments to 
payroll and accounting services. The Petitioner acknowledges that it began outsourcing many of 
these services "[s]ince the filing of this petition in November 2014." The execution of service 
agreements after the filing date do not show who performed these non-qualifying functions when the 
Petitioner filed the petition, and therefore cannot establish eligibility at the time of filing. See Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg' I Comm'r 1971 ). The only outsourced administrative 
function that the Petitioner documented as of the filing date was payroll. 
The Petitioner claims to have reassigned the Petitioner's sales manager (South America) as 
production manager. The Petitioner does not say when this occurred, but implies that it happened 
after the filing date. The earliest documented payment to that individual dates from January 2015. 
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Matter ofZ-R-, LLC 
The Director denied the petition because of (1) the unavailability of subordinate staff to relieve the 
Beneficiary from performing operational and administrative tasks, and (2) the discrepancies between 
the Petitioner's staffing and the Beneficiary's job description. Specifically, the Director concluded 
that the Petitioner had not established that the Beneficiary would serve in a managerial capacity. 
The Director repeated the earlier conclusion that the Petitioner's description of the Beneficiary's 
duties was "less than realistic given the number of subordinates." For example, the Director stated: 
The petitioner [stated that the Beneficiary] would supervise a Quality Assurance 
Manager, yet, quality control appeared to be relegated to the machinist as just one of 
his responsibilities, and no such Manager was shown on the organizational chart. The 
petitioner stated the beneficiary would direct the Production Manager's supervision of 
production of rollers; however, there did not appear to be a production department 
producing rollers or a production manager, only the machinist. 
The Director found that the Petitioner has not shown who relieves the Beneficiary from performing a 
number of operational and administrative tasks with respect to marketing, finance, and production. 
The Director also stated: "The Petitioner has not defined a specific function to be managed. Instead, 
it appears that the beneficiary will manage all essential functions necessary for the company to 
operate. For this reason, the petitioner has not established the beneficiary will perform the duties of 
a 'function manager."' 
On appeal, the Petitioner asserts that the company's day-to-day operations amount to a function that 
the Beneficiary can manage as a function manager, and also that there is no requirement that a 
function manager must function only one of a company's functions. The Petitioner also states that, 
by saying that "the b~neficiary will manage all essential functions," the Director has essentially 
conceded that the Beneficiary will be a function manager. 
We agree with the Petitioner on the above points. The Director's decision, as worded, incorrectly 
implied that a function manager must manage exactly one function, and managing multiple functions 
somehow disqualifies a given beneficiary. The Petitioner is correct that there is no statutory or 
regulatory support for such an interpretation. 
At the same time, however, the definition of managerial capacity has two parts. First, the Petitioner 
must show that the beneficiary will perform certain high-level responsibilities. See Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. .hliy 30, 1991). Second, the 
Petitioner must prove that the beneficiary will be primarily engaged in managerial duties, as opposed 
to ordinary operational activities alongside the Petitioner's other employees. See, e.g., Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, Inc. v. INS, 940 F.2d 1533. 
In this case, there is no question that the Beneficiary will have high-level responsibilities. He is the 
Petitioner's highest-ranking salaried employee. (The president of the company draws no salary.) 
However, the fact that the Beneficiary manages or directs a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 101(a)(44) ofthe Act. Section 101(A)(44)(A) ofthe Act requires that 
Matter ofZ-R-, LLC 
the duties of a position be "primarily" of a managerial nature. While the Beneficiary may exercise 
discretion over the Petitioner's day-to-day operations and possesses the requisite level of authority 
with respect to discretionary decision-making, the Petitioner has not shown that the Beneficiary 
primarily performs managerial duties. 
The Petitioner, on appeal, contends that the Director relied excessively on the company's small size 
to make the determination that the Beneficiary will not primarily work as a manager. The Petitioner 
asserts that ~the Director did not explain how it is unrealistic to claim, for instance, that the 
Beneficiary would spend 6 hours per week working with sales staff. The Petitioner states that it has 
provided specific details about such work, such as collaborating with the sales managers on 
marketing strategies and reviewing sales surveys in conjunction with new product launches. 
The key factor in this case is not a lack of detail, but rather inconsistencies and omissions in the 
record. The Director, in the denial notice, observed that the Petitioner has referred to departments, 
managers, and subordinates that the Petitioner has not shown to exist. On appeal, the Petitioner has 
not addressed the Director's finding that the Petitioner does not appear to have a production 
department or any formal quality assurance structure. When the Petitioner does not appear to 
employ a QA manager or assemblers, it is difficult to place much credence in the Petitioner's claim 
that one of the Beneficiary's duties is to supervise the QA manager and provide "feedback to 
assemblers regarding accuracy of assembly procedures." The Petitioner's initial organizational chart 
showed six employee positions below the Beneficiary, but the Petitioner's own tax and payroll 
records show that the Petitioner has never employed that many people at one time. 
The Petitioner correctly notes that, under section 101(a)(44)(C), we must take the Petitioner's 
reasonable needs into account when considering the Petitioner's staffing levels. The Petitioner, 
however, has presented a confusing picture of its reasonable needs, by referring to apparently 
nonexistent staff and departments. If the Petitioner's reasonable needs include marketing and 
assembly, but the Petitioner had no marketing or assembly staff at the time of filing, then it is not 
evident who performed those duties. The Petitioner is not entitled to a presumption that the 
Beneficiary delegated all those operational functions without performing them himself, particularly 
when the Petitioner's account of the Beneficiary's duties does not match the company's documented 
structure. The Petitioner has not resolved these inconsistencies with independent evidence, and 
therefore.the reliability and sufficie~cy of'the Petitioner's evidence is in doubt. See Matter ofHo, 
19 I&N Dec. 582, 591-2 (BIA 1988). 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it will employ the Beneficiary in a managerial capacity in the United States. 
III. ABILITY TO PAY 
/The Director also denied the petition based on a finding that the Petitioner did nor establish its ability 
to pay the Beneficiary's proffered wage. The regulation at 8 C.F.R. § 204.5(g)(2) requires the 
Petitioner to document its ability to pay the Beneficiary's proffered wage at the time the priority date 
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(b)(6)
Matter ofZ-R-, LLC 
is established and continuing until the beneficiary obtains lawful permanent residence, by submitting 
copies of annual reports, federal tax returns, or audited financial statements. 
On Form 1-140, the Petitioner indicated that it would pay the Beneficiary $6000 per month, 
equivalent to $72,000 per year. The Petitioner stated its gross annual income as $351,163, but did not 
state its net annual income. 
The Director denied the petition because the Petitioner's tax returns show a net loss each year, and 
the Petitioner's current liabilities exceeded its current assets in 2014, the year of filing. The Director 
also noted that the Petitioner paid the Beneficiary $66,000 in 2014, which was $6000 less than the 
proffered annual salary. 
On appeal, the Petitioner notes that the Beneficiary has received at least his full salary since the 
filing date. The Beneficiary began receiving $6000 per month in early 2014, before the filing date, 
and in 2015 he received $126,000, which is nearly double the stated salary. The Petitioner has 
submitted the required type of documentation, and has proven that it has paid, and therefore must 
have been able to pay, the Beneficiary's full salary from the filing date onward. 
For the above reasons, we withdraw the Director's finding that the Petitioner has not established its 
ability to pay the Beneficiary's proffered salary. The petition will remain denied, however, due to the 
other ground already discussed. 
IV. STATUS OF PETITIONING BUSINESS 
Beyond the Director's decision, review of public records reveals an issue of concern. This is not a 
basis for dismissal of the present appeal; we are dismissing the appeal for reasons already explained 
above. Nevertheless, the Petitioner must address this additional issue if it seeks to pursue this matter 
further. 
The Petitioner organized as a Limited 
Liability Company (LLC) in Indiana. The Petitioner's 
subsequent relocation to Florida did not cause the company to become a Florida LLC or remove the 
company from Indiana's jurisdiction. Rather, the record shows that the Petitioner applied for, and 
received, authority to transact business in Florida as a foreign LLC. This authority is contingent on 
the Petitioner's continued good standing in Indiana. 
The State of Indiana administratively dissolved the petitioning LLC on February 14, 2013.3 This 
dissolution is grounds for Florida to revoke the Petitioner's authority to transact business in Florida 
under § 608.512(7), Fla. Stat. (2012). This information raises serious doubts about the Petitioner's 
continued viability and its legal right to transact business. 
3 
See Indiana Secretary of State, Business Services Division, Public Business Search, https://bsd.sos.in.gov/ 
PublicBusinessSearch/Businesslnformation?businessld= (printout added to record January 4, 20 17). 
9 
Matter ofZ-R-, LLC 
~ 
If the Petitioner had overcome the Director's stated grounds for denial, USC IS would have issued a 
notice of intent to deny the petition under 8 C.F.R. § 103.2(b)(16)(ii). Absent other grounds for 
denial, USCIS could not properly approve the petition unless and until the Petitioner shows that the 
LLC is active and operating in,compliance with applicable Indiana and Florida laws. 
V. CONCLUSION 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 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 ofZ-R-, LLC, ID# 151223 (AAO Jan. 12, 2017) 
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