dismissed EB-1C Case: Project Management And Development

U.S. Citizenship 
and Immigration 
Services 
MATIER OF B-S-&L-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 27,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a "project management and development" company, seeks to permanently employ 
the Beneficiary as its president under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 
8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that it will employ the Beneficiary in a managerial or executive capacity in the 
United States. 
On appeal, the Petitioner submits additional evidence and asserts that the Director did not take into 
account the organization's reasonable needs, the Beneficiary's responsibility for directing the 
"management, professional employees of the company," and the fact that he is the sole employee 
entrusted with "purely executive" duties. 
Upon de novo 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)(l)(C) of the 
Act. 
The Form I-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(j)(3). 
Matter of B-5-&.L-, Inc. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that it will employ the 
Beneficiary in an executive capacity in the United States. The Petitioner does not claim that the 
Beneficiary will be employed in a managerial capacity. Therefore, we restrict our analysis to 
whether the Beneficiary will be employed in an executive 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 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
The regulation at 8 C.F.R. § 204.5(j)(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 
Petitioner's staffing levels and reporting 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 activities as "exclusively executive" 
and divided them into four areas of responsibility as follows: 
Direct the Management and Discretionary Functions (40%): 
• Establish strategies and policies for the Company to achieve its financial short and 
long term goals, and supervise productivity in order to maximize returns for the 
Company; (25%) 
• Establish goals and policies in order to expand operations and client base in the 
United States, the Caribbean, and Latin America; (30%) 
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Matter of B-S-&L-, Inc. 
• Analyze the operations· of the Company to evaluate the performance of the 
Company and its staff; (30%) 
• Confer with General Manager on daily issues and pending matters; (15%) 
Direct the Development Functions (30% ): 
• Establish commercial relationships with companies m the United States and 
abroad to develop our company's operations; (40%) 
• Identify and filter into new markets for the Company's expansion throughout "the 
Caribbean and Latin America; (30%) 
• Direct the negotiations with corporate and individual clients and oversee the 
development of our entire business operations. (30%) 
Direct the Financial Functions (15% ): : 
• Direct the preparation of financial statements and confer with the Board of 
Directors and the Financial· Director to ensure that the Company's tinancial 
objectives are achieved; ( 40% ); 
• Oversee accounts receivable and payable; (35%) 
• Obtain and arrange for funds for a variety of uses for the company with Board of 
Directors. (25%) 
Direct the Marketing Functions (15% ): 
• Continue to identify value added services to be offered to our customers ... and 
transmit those ideas to the General Manager who then meets with the project 
management team in order to implement such services; (15%) 
• Direct, supervise and approve the execution of promotional and advertising 
materials based on his experience with customers' needs; (40%) 
• Direct marketing strategies to continue to expand the Company's reach m 
Curacao, Panama, and throughout the Caribbean and Latin America. (25%) 
In a request for evidence (RFE), the Director, requested that the Petitioner provide a definitive 
statement describing the Beneficiary's position, including a more detailed list of his specific daily 
duties and the percentage of time he spends on each duty. In response, the Petitioner resubmitted the 
same position description provided in its initial support letter. 
Upon review, we find that the Petitioner described the Beneficiary's position in overly broad terms 
that did not convey what the Beneficiary would do on a day-to-day basis as its president. For 
example, the Petitioner listed three separate duties related to developing goals, policies, and 
strategies for expansion in Caribbean and Latin American markets without distinguishing between 
them, elaborating on the specific tasks involved; or identifying any policies and strategies he would 
implement. The Petitioner also included several general duties associated with overseeing the 
company's overall operations, but such duties, without additional explanation, merely paraphrase the 
definition of executive capacity. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
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Matter ofB-S-&L-, Inc. 
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), af{'d, 905 F.2d 41 (2d. Cir. 1990). 
The Beneficiary's responsibility for directing the "development functions" of the company is also 
lacking sufficient detail to establish that he performs executive-level duties in this area. The 
Petitioner indicates that the Beneficiary establishes commercial relationships with other companies 
but did not explain how he accomplishes this task or what specific executive duties are involved. As 
discussed further below, his subordinates' job descriptions include little mention of their interactions 
with clients, suppliers, or other companies. The Petitioner indicates that the general manager 
"oversees contractual negotiations with suppliers and providers," and that the Beneficiary "directs" 
negotiations, but no one is claimed to actually perform the company's day-to-day business 
transactions with clients, suppliers, and service providers. Similarly, the Petitioner states that the 
Beneficiary identifies new markets, but does not claim that anyone else on its staff performs market 
research functions. As a result, we cannot determine what proportion of the Beneficiary's 
responsibility for business development functions would require to him to perform executive duties, 
and what proportion would involve non-qualifying duties related to the company's day-to-day 
marketing, sales, and procurement activities. 
In addition, although the Petitioner indicates ihat the Beneficiary will spend 15% of his time 
directing the company's financial functions, there is an overlap between his duties and those 
attributed to the subordinate financial director, who is charged with supervising the preparation of 
financial statements and reports, ensuring the availability of funds, and monitoring expenses. Given 
that the Petitioner does not claim to have any lower-level subordinates in its financial department, it 
is unclear how the financial function's day-to-day operational and administrative tasks would be 
divided between the Beneficiary and his claimed managerial subordinate. 
In sum, the Petitioner has not provided sufficient detail or explanation of the Beneficiary's activities in 
the course of his daily routine. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd., 724 F. Supp. at 1108 (E.D.N.Y. 1989), af{"d, 905 F.2d 41 (2d. Cir. 
1990). The fact that the Beneficiary will direct a business as its senior employee does not necessarily 
establish eligibility for classification as a multinational executive. 
Even though the Beneficiary exercises discretion over the Petitioner's operations and possesses 
authority with respect to discretionary decision-making, the position description alone is insufficient 
to establish his employment will be in an executive capacity. Rather, the Petitioner must also 
establish that he would have sufficient subordinate staff to supervise and perform the day-to-day 
company activities he is claimed to oversee or direct. As discussed further below, the Petitioner has 
not shown its ability to relieve the Beneficiary from significant involvement in the operational tasks 
required to operate its business. 
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, U.S. Citizenship and lmJTligration Services (USCIS) must take into account 
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Matter of B-S-&L- , Inc. 
the reasonable needs of the organi?:ation, in light, of the overall purpose and stage of deve lopment of 
the organization. Section 101 (a)( 44 )(C) of the Act. 
The Petitione r states that it procures construction materials for its foreign affiliate 's medium- to 
large-scale construction project s in Panama and Curacao, and that it is responsibl e for de livery of 
those materials abroad. In addition, the Petitioner stated that it is invol ved in a residen tial real estate 
development project in Florida known as i;' ., 
The Petitioner 's organizational chart at the time of filing depicted the Benef iciary as pres ident with 
four direc t s ubordinates - general manager , operations manager, financial director, and 
administrative manager. The chart also depicts a project manag er who repor ts to the general 
manager and an administrative assistant who reports to the administr ative manager. 1 The Petitioner 
submitted 
evidence showing that it paid all seven employees in September 2017, the month prior to 
the filing of the petition. 
The statutory definition of the term "~xecutive capacity " focuses on a person's elevated position within 
a complex organizational hierarchy , including major components or functions of the organiza tion, 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. Inherent to the definition, the organization must have a subordinate level of 
manageri al employees for a beneficiary to direct 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 sta~ute simply because they have an exec utive title or because he 
"directs " the enterprise as the owner or sole manage rial employee. · 
Here, although the Petitioner 's organizational chart shows a tier of employees with ma nag~ r i a l job 
titles reporting to the Benefici ary, the Petitioner has not shown that the he would be primarily 
directing the management of the company or tha\ the subordinate staff relieves him from significant 
involvem ent in its day-to-day operations. 
The job descriptions for the s ubordinate empl oy~es are similar in some respects to the Beneficiary's 
own broad duties and do not provid e meaningful insight into what they actually do within the scope 
of the Petitioner's business. For example, the Petitioner states that the general mana ger supe rvises 
the day-to-d ay operations of the company, sup ervises legal and adminis trative operati ons fo r each 
project, imple ments administr ative and operational policies and proc edures, and exercises discretion 
over subordinat e employees and "those subcontracted who pertonn the day-to-day work." The 
general manager' s only claimed subordinate is a part-time project manage r whose duties are not 
described and who has no apparent subordinates. The Petition er has not provid ed ev idence of i ts 
1 The initial organizational chart indicated the operation s manager super vises a proj ect manag er in Curacao and a 
Panama-b ased administrative man ager with four subordin ates. The Petitioner provided eviden ce that its claimed 
affiliates in Curaca o and Panama employ the individuals named in the chart. Howeve r, it d id not include the foreign 
staff when it provided an upda ted organizational chart in response to the Director's RFE, and it has not prov ided job 
desc ription s for the foreign emplo yees. Also, we note that the Cura cao-based "project manager" is identified as an 
"admini strative assistant" in the foreign entity's payro ll state ment s. 
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Matter of B-S-&L- , Inc. 
regular use of subcontractors "who perform the day-to-day work ," nor has it submitted evidence 
related to its only claimed U.S. project(" "). Given that the Beneficiary himself is 
also claim ed to be responsible for oversight of the Petitioner and implementing its polici es, we are 
left with little understanding of the general manager's actual role and respon sibi lities in the 
company . 
The responsibilities attributed to the operations manager are similarly unclear. The Petitioner states 
that she, like the Beneficiary and the general manager, establish es and impl emen ts, goals and 
objectives, but her other duties related to sales promotions, product marketing strategi es, advertising 
campaigns, and recommending new facilities : locations or overseeing reno vations of current 
facilities . It is unclear what products the Petition er is currently promo ting, marketing or adver tising 
in the United States, or to what extent it is invqlved in the development or renovation of facilities. 
Although the Petitioner initially indicated that this employee oversees foreign-based perso nnel , her 
duty description does not include supervisory re~ponsibilities, and the Petitioner later remov ed those 
foreign personnel from its organizational chart. : 
As noted, the financial director 's duties overlap with the Beneficiar y's own stated respon sibilities for 
directing the finanCial function and it did not establish how they share the day-to-d ay duties of this 
function. Finally, the Petitioner provided a broad position description for the administrative 
manager, indicating that she reviews operational reports, coordinates adminis trative procedures and 
systems, assesses the perfonn ,ance of "staff," ensur es the smooth flow of infor~ation within the 
company, and monitors and purchases office supplies. 
Overall, the descriptions provided for the four " manager " position s are too general to suppo rt the 
Petitioner' s claim that the Beneficiary would be directing the performance of managerial staff who 
supervise the day-to-day operations of the company and "relieve the Beneficiary from dedicating his 
time to the supervisioQ of lower level employees." Furthermore , the Petitioner' s statements 
regarding the nature of duties performed by the Beneficiary's subordinates are incon sisten t. Despite 
the broad, higher-level duti es attributed to the employees, the Petitioner has also stated that the 
Beneficiary' s subordinates relieve him from "pertonning the services of the corporation and non­
qualifying functions such as bookkeeping, delivery , placing orders, shipping among others. All of 
these duties arc being performed by subordinate employees. " This statement implies that the 
Beneficiary's subordinates are not managers as claimed, but rather the persons performing the 
routine day-to-day activities necessary to operate, the business. For these reasons, we find that broad 
job description s for the subordin ate managers ha~e limited probativ e value~ 
The Petitioner also stated that the Beneficiary 's ~ubordinates are "profess ional managers." Although 
the Director analyzed whether the subordinate employees are professionals
, the definition of 
"executive capacity" does not require the sup~rvision of profes sionals, nor does a beneficiary's 
supervision of professionals establish eligibility a Beneficiary's eligibility as an L-lA executive. 
Nevertheless, although several of the employees ·hold bachelor's degree s, we cannot classify them as 
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Matter of B-5-&L-, Inc. 
professionals based on the submitted job descriptions, which are lacking in probative value for the 
reasons discussed above.2 
The Petitioner correctly emphasizes that 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, 
and that we must take into account the reasonable needs of the organization and acknowledge that 
See section 101(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 Petitioner indicates that its primary purpose is to source "green" building materials in the United 
States for its projects in the Caribbean and Latin American, to take responsibility for the logistics of 
shipping and delivery of those materials abroad, and to manage a U.S.-based real estate construction 
project. However, it does not consistently claim that any of its employees are responsible for 
sourcing and purchasing materials, performing duties related to shipping and delivery of those 
products overseas, or performing duties associated with the U.S.-based project. Therefore, our 
determination is not based on the size of the staff, but rather the lack of evidence that the staff in 
place at the time of filing relieved the Beneficiary from significant involvement in the company's 
day-to-day activities. 
Accordingly, the Petitioner has not met its burden to establish that the Beneficiary would perform 
primarily executive duties. 
Ill. QUALIFYING RELATIONSHIP 
The Director found that the Petitioner's response to the RFE included "evidence to establish the 
relationship between the parent company and the petitioner." However, we disagree with this 
finding after a de novo review of the evidence. 
To establish a "qualifying relationship," the Petitioner must show that the Beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (a U.S. entity with a foreign 
2 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 10l(a)(32) of the Act, states that ·'[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
Therefore, we must focus on the level of education required by the position, rather than the degree held by subordinate 
employee. The possession of a bachelor's degree by a subordinate employee does not automatically lead to the 
conclusion that an employee is employed in a professional 'capacity. 
'7 
Matter of B-5-&L-, Inc. 
office) or related as a "parent and subsidiary" or as "affiliates." See § 203(b )(1 )(C) of the Act; see 
also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The Petitioner claims to be an affiliate of the !3eneficiary's last foreign employer, a company 
registered in Curacao. The Petitioner indicates that the Beneficiary and his spouse each own 50 
percent of both entities. Although the Petitioner has submitted evidence to corroborate its 
ownership, the record does not contain sufficient evidence of the foreign entity's ownership. The 
Petitioner submitted an excerpt from the Curacao Commercial Register, dated in 2011, indicating 
that the foreign entity was established in 2003, that it has authorized capital of 50,000 Netherlands 
Antillean guilders (ANG), that its issued capital is 10,000 ANG, and that "there are holders of non­
paid-up shares." This document identifies three company directors- the Beneficiary, his spouse, 
and another individual- but does not identify who owns the company's shares. 
The Petitioner will need to address this evidentiary deficiency in any future filing where its 
qualifying relationship with the claimed foreign affiliate is an element of eligibility. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-S&L-, Inc., ID# 1237710 (AAO June 27, 2018) 
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