dismissed EB-1C Case: Product Distribution

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-&M-I- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 20,2017 
PETITION: FORM I-140, IMMIGRANT P_ETITION FOR ALIEN WORKER 
The Petitioner, 1 a distributor of cell phone products, seeks to permanently employ the Beneficiary as 
its general manager under the first preference immigrant classification for multinational executives 
or managers. See Immigration and Natio.nality Act (the Act) section 203(b)(l)(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 of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that the Beneficiary was employed abroad and would be employed in the 
United States in a ~anagerial capacity. 2 
On appeal, the Petitioner .submits additional evidence and asserts that the Director reached incorrect 
conclusions regarding the nature and scope of the Petitioner's business. The Petitioner maintains 
that the Beneficiary's previous foreign and proposed U.S, positions are in a managerial capacity. 
Upon de novo review, we will withdraw the Director's finding that the Petitioner did not establish 
that the Beneficiary was employed abroad in a managerial capacity. However, as the Petitioner has 
not overcome the remaining ground for denial, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa 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. 
A United States employer may file Form I-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. This 
classification does not require a labor certification. 
1 The Petitioner's legal name is' The Petitioner explai~ed that, due to a clerical 
error made by former counsel's office, the company name provided on the petition was' 
2 The Petitioner did not claim that the Beneficiary had been or would be employed in an executive capacity. 
Matter of M-&M-1- LLC 
The petition 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). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in a managerial capacity. 
The law defines the term "managerial capacity" as an assignment in which an employee primarily 
manages the organization, or a department subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function ,within the organization; has the authority to hire and fire or 
recommend those as well as other personnel actions, or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). Further, "[a] first-line supervisor is not 
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considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional." Jd. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
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. Section 101(a)(44)(C) ofthe Act. 
In the denial decision, the Director determined that the Petitioner's description of the Beneficiary's 
job duties was vague and did not provide sufficient insight into the nature of his day-to-day duties to 
establish that such duties would be primarily managerial in nature. Further, the Director, noting that 
the Petitioner had only five to six employees, ,questioned whether the staff would be sufficient to 
relieve the Beneficiary from significant involvement in the non-managerial, day-to-day operations of 
the company. 
On appeal, the Petitioner asserts that the Director placed undue emphasis on the size of the company 
and misunderstood the nature of the business, noting that it does not merely distribute cellular 
phones and accessories as mentioned in the decision. The Petitioner submits an excerpt of the 
occupational description for "Top Executives" from the website of the U.S. Department of Labor's 
(DOL) Bureau of Labor Statistics and asserts that the Beneficiary's duties are comparable to the 
senior management duties described therein. 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
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Matter of M-&M-1- LLC 
The statement must clearly describe the duties to be performed by the Beneficiary. Beyond the 
required description of the job duties, USCIS reviews the totality of the evidence 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 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 
company's business activities and staffing levels. 
A. Duties 
On the Form 1-140, the Petitioner stated that it is engaged in the "[d]istribution of cell phones 
products and services," has six employees, and seeks to employ the Beneficiary as its general 
manager. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions 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 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. 
The Petitioner submitted very similar descriptions of the Beneficiary's position at the time of filing 
and in response to a request for evidence, in which the Director had requested a more specific 
description of the Beneficiary's typical duties. We agree with the Director's determination that the 
descriptions were insufficient, as they provided only an overview of the Beneficiary's general 
responsibilities and level of authority without identifying the nature of his actual day-to-day tasks. 
For example, the Petitioner stated that the Beneficiary's duties will include "control and coordinate 
all activities of the Company," "implementing the vision set by the corporate group," "formulate the 
company's strategic planning to achieve the objectives," "plan formulate and implement 
administrative and operational policies and procedures," "exercise total decision-making authority," 
"direct the management of the company," and "set strategic policies and objectives.'' Conclusory 
assertions regarding the Beneficiary's employment capacity are not sufficient. Merely repeating the 
language of the statute or regulations does not satisfy the Petitioner's burden of proof 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.). While such responsibilities establish 
that the Beneficiary is the senior employee in the company, the provided description lacked 
meaningful information regarding what he would actually be doing as part of his day-to-day routine. 
Further, several of the Beneficiary's stated responsibilities relate to business development, sales, and 
marketing, and were not clearly managerial. The Petitioner noted that he is responsible for "building 
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Matter of M-&M-1- LLC 
a profitable business by accurately bidding on projects," responsible for "the business contacts and 
relationships of the organization," and applying "professional expertise and experience to the 
marketing and sales function of the company" including "development of new products." As 
discussed further below, the Petitioner now claims that its business activities range beyond the 
distribution of cell phones and accessories and include various consulting services. However, the 
Petitioner has not identified employees who are responsible for selling, marketing, or providing the 
company's consulting services and without such explanation, it appears that the Beneficiary would 
be performing these non-managerial duties himself. 
Finally, the Petitioner stated that the Beneficiary would be responsible for overseeing all financial 
aspects of the company, preparing budgets, and monitoring revenues and expenditures, authorizing 
credit accounts and banking transactions, managing costs and developing pricing strategies. At the 
time of filing, the Petitioner stated that it employed a full-time accountant manager who was claimed 
to prepare financial statements, reports and forecasts, monitor financial details, oversee accounting, 
auditing and budgeting, and other finance related duties. However, as discussed further below, it 
appears the Petitioner did not actually employ him at the time of filing and the Petitioner no longer 
claims to employ anyone in this position or a similar position. Accordingly, it is unclear that the 
Beneficiary would have anyone to assist him with the day-to-day financial, budgeting and 
accounting tasks that he is claimed to oversee. 
On appeal, the Petitioner maintains that the Beneficiary's description is comparable to that of a "Top 
Executive" as described by the DOL's Bureau of Labor Statistics. However, as noted above, the 
Petitioner is required to submit a detailed description of the Beneficiary's actual duties within the 
context of the Petitioner's specific business. Comparisons to generic template job descriptions are 
not persuasive and are insufficient to establish the nature of the specific tasks the Beneficiary will 
perform for the Petitioner. Further, we note that the Petitioner has otherwise claimed that the 
Beneficiary's position is in a managerial capacity as defined at section 101 (a)( 44 )(A) of the Act and 
it has not claimed that his position is in an executive capacity. 
The fact that the Beneficiary will manage or direct 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) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" executive or managerial in nature. Sections 
101 (A)( 44 )(A) and (B) of the Act. While the Beneficiary may exercise discretion over the 
Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, the position descriptions alone are insufficient to establish that his 
actual duties would be primarily managerial in nature. 
We acknowledge that the Petitioner has provided weekly calendars for the Beneficiary in support of 
the appeal; however, as this evidence is dated June and July 2016 we cannot determine that it reflects 
the Beneficiary's duties at the time of filing. Moreover, the calendar briefly identifies who the 
Beneficiary met with during these weeks and generally identified what projects he was working on, 
but it does not further illustrate his specific job duties. 
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Matter of M-&M-1- LLC 
As discussed further below, the record does not support the Petitioner's claim that it had a sufficient 
subordinate staff to relieve the Beneficiary from involvement in the day-to-day operations of the 
business at the time the petition was filed, and we cannot determine how much time the Beneficiary 
would reasonably devote to qualifying managerial duties. 
B. Staffing and Business Activities 
As noted, at the time of filing the petition, the Petitioner claimed to be engaged in the distribution of 
cellular phones and accessories and claimed to have six employees. The Petitioner's organizational 
chart submitted at the time of filing identified only five employees, including the Beneficiary. The 
chart showed his direct subordinates as "General Coordination" and "Account 
Manager and Projects" and indicated that supervised a logistic 
assistant 1 and a sales representative 3 
The Petitioner's payroll evidence does not corroborate the staffing structure depicted in the initial 
organizational chart. The Petitioner submitted a year-to-date payroll earnings report dated June 30, 
2015, its state quarterly wage reports and federal quarterly tax returns for all four quarters of 2015, 
and its 2015 IRS Forms W-2, Wage and Tax Statements. This evidence shows that, when the 
petition was filed in September 2015, the Petitioner had three employees - the Beneficiary, 
and and received all of their 2015 earnings in 
the first six months of that year and it is unclear why the Petitioner included them on an 
organizational chart submitted to US CIS in September 2015. The Petitioner has not resolved this 
inconsistency in the 
record with independent, objective evidence pointing to where the truth lies. 
Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The record ~hows that the Petitioner employed four employees in October 2015, six employees in 
November and December 2015, and five employees in the first two quarters of2016. The Petitioner 
changed title to "account manager," added a subordinate "media and 
communications supervisor," shifted to a sales role, and hired a new "logistic and 
storage" employee. However, our review is limited to the staffing and structure in place at the time 
of filing. 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). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. The Petitioner has not 
claimed that the Beneficiary manages an essential function, but does state that he would supervise 
subordinate personnel. Personnel managers are required to primarily supervise and control the work 
3 The Petitioner has also submitted copies of three sales representative contracts signed in 2014 and early 2015, but it did 
not provide English translations of the Spanish-language agreements, nor did it mention these sales representatives or the 
duties they perform in any of its supporting letters. Further, the record does not contain evidence of payments to the 
independent sales representatives named in the agreements, such as copies of commissions checks or IRS Forms 1099. 
The Petitioner issued a single Form I 099 in 2015 indicating that it paid $950.00 to but the Petitioner has not 
otherwise mentioned this individual or identified the services he provided. 
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Matter of M-&M-1- LLC 
of other supervisory, professional, or managerial employees. Contrary to the common understanding 
of the word "manager," 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." 4 Section 101(a)(44)(A)(iv) of the Act. If a beneficiary 
directly supervises other employees, the beneficiary must also have the authority to hire and fire 
those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. 
§ 204.5(j)(2). 
At the time of filing, the Petitioner employed the Beneficiary as general manager, as 
general coordinator, and as logistics assistant, which appears to be a part-time role as he 
received $13,200 in wages for all of 2015. The record indicates that the Beneficiary's 
only direct subordinate, performs sales management, administrative, and some supervisory duties, 
and that she has a bachelor's degree in law. However, at the time of filing, she had only one 
subordinate, and the company did not employ a subordinate sales person to relieve her from 
performing sales tasks. The evidence must substantiate that the duties of a beneficiary and his or her 
subordinates correspond to their placement in an organization's structural hierarchy. While the 
Beneficiary may have the authority to hire and fire all lower-level staff, the record does not establish 
that he would be primarily managing a subordinate staff of managers, supervisors or professionals 
based on the structure of the company at the time of filing. Rather, given that there were only two 
subordinate employees, it is more likely than not that the Beneficiary and his subordinates would 
perform the actual day-to-day tasks of operating the Petitioner's business. The Petitioner has not 
established that the Beneficiary qualifies as a personnel manager. 
Turning to the nature of the business, we note that, prior to the denial of the petition, the Petitioner 
consistently stated that it was involved in the purchase and distribution of cell phones and related 
accessories and was doing business as The Petitioner's supporting evidence 
included invoices and purchase orders related to these types of products and did not document any 
other sources of income. 
On appeal, the Petitioner asserts that the company is not merely a seller of mobile phones, noting 
that the Director appears to have overlooked contracts showing the extent of the company's 
activities. The Petitioner now submits copies of various representation and profit-sharing 
agreements which identity the Petitioner as a company engaged in "strategic business consulting and 
international law, which represents an important option for foreigners looking to consolidate their 
immigration status and investment in the United States." The Petitioner also submits articles from 
print and online magazines which describe the company as a provider of legal, international 
business, and academic services. This evidence post-dates the filing of the petition and it is unclear 
to what extent the Petitioner operated as a consulting services provider at the time the petition was 
4 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the Act, states that "[t]he term profession 
shall include bu,t not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
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Matter of M-&M-1-LLC 
filed. If the Petitioner did in fact provide consulting services in September 2015, it is unclear who, 
other than the Beneficiary himself, would have been available to market, sell, and provide such 
services given the two-person subordinate staff the Petitioner employed at that time. The Petitioner 
has not explained who on its previous or current staff actually provides the services outlined in the 
various agreements submitted. 
The Petitioner correctly observes that a company's size alone, without taking into account the 
reasonable needs of the organization, may not be the determining factor in denying a visa petition for 
classification as a multinational manager. See section 101(a)(44)(C) of the Act. However, it is 
appropriate for USCIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as the absence of employees who would perform the non-managerial or non­
executive operations of the company, or a company that does not conduct business in a regular and 
continuous manner. See, e.g. Family Inc. v, 469 F.3d 1313; Systronics Corp. v. INS. 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when USCIS notes 
discrepancies in the record and fails to believe that the facts asserted are true. See Systronics, 15 3 F. 
Supp. 2d at 15. 
Here, the discrepancies in the record have been noted. The Petitioner claimed six employees on the 
Form 1-140, but documented its employment of only three staff as of the date of filing. It claimed to 
be engaged in the purchase and distribution of cell phones and accessories, and now claims that it is 
a multi-faceted consulting company with a large portfolio of products and services, including the 
aforementioned cell phone business. The. Petitioner did not submit evidence that it employed 
subordinate staff members who would perform the actual day-to-day, non-managerial operations of 
such a company. Based on the Petitioner's representations, it does not appear that the reasonable 
needs of the petitioning company might plausibly be met by the services of the Beneficiary as 
general manager, a general coordinator, and a logistics assistant. 
On appeal, the Petitioner cites Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1574 (N.D. Ga. 1988), 
in support of its claim that a petitioner's small size, by itself, should not preclude a finding that a 
beneficiary will act in a primarily managerial or executive capacity. First, we note that the petitioner 
has not furnished evidence to establish that the facts of the instant petition are analogous to those in 
Mars Jewelers, Inc., where the district court found in favor of the plaintiff. With respect to Mars 
Jewelers, we are not bound to follow the published decision of a United States district court in 
matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993 ). 
Although the reasoning underlying a district judge's decision will be given due consideration when it 
is properly before us, the analysis does not have to be followed as a matter of law. !d. at 719. 
In Mars Jewelers, Inc., the court emphasized that the former Immigration and Naturalization Service 
should not place undue emphasis on the size of a petitioner's business operations in its review of a 
beneficiary's claimed managerial or executive .capacity. We interpret the regulations and statute to 
prohibit discrimination against small or medium-size businesses. However, consistent with the 
statute we require the petitioner to establish that the beneficiary's position consists of "primarily" 
managerial duties and that the petitioner has sufficient personnel to relieve the beneficiary from 
performing operational and administrative tasks. We emphasize that our finding is based on the 
Matter of M-&M-1- LLC 
conclusion that the Petitioner has not established that the Beneficiary would be primarily performing 
managerial duties, and our decision does not rest on the size of the petitioning entity. 
Based on the deficiencies and inconsistencies addressed above, the Petitioner has not established that 
the Beneficiary would be employed in a managerial capacity. 
III. QUALIFYING RELATIONSHIP 
Although not addressed in the Director's decision, the record contains an inconsistency that 
precludes a determination that the Petitioner and the foreign entity have a qualifying relationship. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e., 
a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally section 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.5(j)(2) 
(providing definitions of the terms "affiliate" and "subsidiary"). The Petitioner initially claimed that 
the Beneficiary and his spouse, as individuals, each own 50% of both the Petitioner and the foreign 
entity, an ownership structure that would establish an affiliate relationship between the two 
companies. However, the Petitioner's 2015 IRS Form 1120, U.S. Corporation Income Tax Return, 
indicates at Schedule K that the foreign entity owns 50% of its stock, and does not identify any other 
owners. This statement of ownership is inconsistent with what the Petitioner claimed at the time of 
filing regarding the company's current ownership and control. For this additional reason, the 
petition cannot be approved. 
IV. PRIOR APPROVAL 
We note that USCIS has approved nonimmigrant petitions that the Petitioner previously filed on 
behalf of the Beneficiary. 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. See 
Matter of Church Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g, 
Ltd. v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987). Furthermore, we are not be bound to 
follow a contradictory decision of a service center. La. Philharmonic Orchestra v. INS, No. 98-
2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
Each nonimmigrant petition filing is a separate proceeding with a separate record and a separate 
burden of proof. In making a determination of statutory eligibility, USCIS is limited to the 
information contained in that individual record of proceeding. 8 C.F .R. § 103 .2(b )(16)(ii). For the 
reasons discussed, the evidence in the instant record does not establish the Beneficiary's eligibility 
for the benefit sought. 
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Matter of M-&M-1- LLC 
V. CONCLUSION 
The Petitioner has not established that the Beneficiary would be employed in the United States in a 
managerial capacity or that it maintains a qualifying relationship with the Beneficiary's foreign 
employer. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-&M-1- LLC, ID# 515384 (AAO July 20, 20'17) 
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