dismissed EB-1C Case: Property Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-1-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 10,2018 
PETITION: FORM l-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a business that manages and operates vacation rental properties, seeks to permanently 
employ the Bcnellciary 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. § ll53(b)(l)(C). This classillcation 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: (I) the Beneficiary would be employed in the United States in an 
executive capacity; and (2) it had the ability to pay the Beneficiary's proffered wage as of the date 
the petition was filed. 
On appeal, the Petitioner disputes the Director's findings, asserting that the Beneficiary's job duties 
arc consistent with those of an executive within the scope of the Petitioner's reasonable needs. 
Upon de novo review, we find that the Petitioner has not overcome the Director's findings. 
Therefore, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a bcneliciary 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 )(I )(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 aff1liate 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). 
Malter of P-1-. Inc. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The first issue to be addressed is whether the Petitioner established that the Beneficiary will be 
employed in an executive capacity. The Petitioner did not claim that ·the Beneficiary would be 
employed in a managerial capacity; therefore, our analysis will address only the Petitioner's claim 
that the Beneficiary's proposed position would be in an executive capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
IOI(a)(44)(B) of the Act. 
Based on the statutory delinitions of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. INS, 940 F.2d 
!53 3 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneliciary 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. 
The petitioner must provide a job description that clearly describes the duties to be performed by the 
beneficiary and indicate whether such duties are in a managerial or executive capacity. See 8 C.F.R. 
§ 204.5(j)(3). Beyond the required description of the job duties, U.S. Citizenship and Immigration 
Services (USCIS) examines the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneticiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneliciary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Stafling 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section IOI(a)(44)(C) of the 
Act. 
In the initial cover letter, the Petitioner stated that it had four employees at the time of filing and was 
looking to add live employees after finalizing its purchase of a gas station/convenience store 
operation. The Petitioner further stated that its "organizational structure supports the executive 
position" and relieves the Beneficiary from performing non-executive functions, which are 
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Mauer of P-1-. Inc. 
performed by "key personnel " rather than the Beneficiary. The Petitioner did not provide an 
organization al chart identifying its employees as of the date of filing in December 2016 . Rather, it 
provided prospective organizational charts that originally appeared in an earlier busin ess plan. The 
chart showed that, by its third year of operation s, the Beneficiary would supervi se: a marke ting 
manager ; a real estate division stafted by a property manager and two maintenance specialists; and a 
gas station divi sion staffed by a manager, a convenience store supe rvisor, a car wa sh supervisor, two 
store attend ants, and a car wash attendant. 
The Petiti oner acknowledged that it had not yet purcha sed a gas statio n/convenience store business. 
The Petition er must establi sh that all eligibility requir ements for the immigration benefi t have been 
satisf-ied from the time of the l"iling and continuing through adjudication. 8 C.F.R. § l03. 2(b)(l). 
Therefor e, we will not consider hiring or expansion activities that occurred after the dat e t he peti tion 
was tiled. 
In a r eque st f or evidence (RF E), the Director instructed the Petitioner to provide an organizational 
chart that retlcct s the organi zati onal structure thc:it was in place at t he time the petitio n w as tile d. 
The Petiti oner was asked to include the nam es of its emplo yees a nd to identif y the Beneficiar y's 
direct subordinates , state whether they work on a full- or part- time basis, and provide their respecti ve 
education al levels, job duties, and dates of hire. The Petitioner was als o a sked to provide e mployee 
pay stub s for the past 12 month s, all Form W-2s it issued to its emp loyee s in 2016, and evidence of 
compensation paid to contracto rs if contractor labor was used. 
In r~s pon se, the Petitioner provided an organizational chart depicting a multi-tier ed sta ff-ing structure 
with the Benef-iciary at the top as the president, followed by a " manager" as his direct subordina te, 
with one maintenance emplo yee and one sales associate /custome r s ervice emp loyee at the bottom 
tier of a four-employee starting structure. Although the Peti tioner provided three quarterly tax 
returns for 2016 , it did not provide one for the final quarter of 2016 during which thi s petition was 
t-iled. The Petitioner also did not submit its payroll summaries, Form W-2 s, or any other ev idence or 
wage s paid to its employe es, that would establish precisely whom it empl oyed in December 2016. 
The Petiti oner indicated that it established a sub sidiary compan y called in 
2017 and acquired an existing gas station. The Petitioner provid ed this com pany' s "W-2 Pre view" 
for 20 I 7 and a .July 20 I 7 payroll summary showing wages paid to employees who wor k a t the gas 
station and convenience store . Although the Petitioner provided its own "W-2 Preview," the 
Beneficiary and his spouse were the only two employees listed in the doc ument, which a ccounted for 
salaries p aid in 2017. 
In the deni al decision. the Dire ctor correctlv determined tha t the Petitione r had not finali zed the . ., 
purchase of a gas station/convenience store at the time of tiling and therefore dec lined to consider 
that busine ss in making a determination about · the Beneficiary's proposed employm ent in an 
executive capacity. Further , although the Director acknowledged and discussed the organizational 
chart that was pr<?vided in resp onse to the RFE , he correctly pointed oufth at the Petiti oner neglected . 
to compl y with certain RFE instructions , which asked the Petitioner to prov ide critic al evidence to 
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determine its staffing at the time of filing. In light of the missing evidence, the Director questioned 
the Petitioner's ability to relieve the Beneficiary from having to primarily perform non-executive 
functions and also noted that the Petitioner did not provide a job description for the Beneficiary's 
subordinate manager or explain how this person would support the Beneficiary in an executive 
position. 
On appeal, the Petitioner disputes the denial and contends that its "active engagement in expanding 
its business" justifies its need for an executive employee. The Petitioner also asserts that the 
Director must consider its "business practices" and the nature of its business. It does not, however, 
specifically identify any of its "business practices" or explain how the nature of its business should 
impact our understanding of the Petitioner's staffing needs or its ability to relieve the Beneficiary 
tfom having to devote his time primarily to the organization's operational and/or administrative 
functions. Although the Petitioner claims that it has enough employees to perform its daily 
operational tasks, it must support its assertimp with relevant, probative, and credible evidence. See 
Maller of Chml'athe, 25 I&N Dec. 369, 376 (AAO 2010). As noted earlier, the Petitioner has 
provided little evidence to support its claim. Despite having been specifically instructed to provide 
job descriptions for the Beneficiary's subordinates as well as evidence to show wages paid to its 
employees, the Petitioner did not provide the requested wage evidence, state precisely what 
operational tasks the Beneficiary's subordinate "manager" executes, or explain how the Petitioner's 
stafling structure at the time of filing was suflicient to relieve the Beneficiary fi-om having to carry 
out primarily non-executive functions. 
The fact that the Beneficiary will manage or direct a business docs not necessarily establish 
eligihility lor classification as a multinational executive in an executive capacity within the meaning 
of section 101(a)(44)(B) of the Act. By statute, eligibility for this classification requires that the 
duties of a position be "primarily" executive in nature. Section 10l(A)(44)(B) of the Act. While the 
Beneficiary's placement at the top of the Petitioner's staffing hierarchy indicates that he may 
exercise discretion over its day-to-day operations and possess the requisite level of authority with 
respect to discretionary decision-making, these elements are not sufticient to establish that the 
Beneficiary had the necessary staffing to support the Beneficiary in an executive position. 
The statutory definition of the term "executive capacity" focuses on a person's elevated posttton 
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. Inherent to the definition, the organization must have a 
subordinate level of managerial 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 statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." !d. 
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Malter of P-1-. Inc. 
In light of the evidentiary deficiencies described above, we find that the Petitioner has not provided 
sufficient evidence to show that at the time of tiling it had the stafting and organizational complexity 
to relieve the Beneficiary tfom having to engage in the daily operational fimctions that are associated 
with owning and managing rental properties. 
B. Duties 
In the next portion of our analysis, we will address the Beneficiary's job duties. The initial cover 
letter contained a job duty breakdown with time allocations. The Petitioner stated that the 
Beneficiary would distribute his time to the following duties: 
• 15'Yo directing the company's growth by analyzing its sales and marketing policies; 
• I 0% developing and implementing marketing strategies; 
• I 0% finding and assessing new business opportunities; 
• 5% meeting with vendors about buying products for the convenience store and another 
I 0% setting prices; 
• 35% assessing "business procedures" and directing "operational activities": 
• I 0% overseeing long-term goals; and 
• 5% recruiting and hiring subordinates to manage the company's daily functions. 
The Petitioner pointed to the Beneficiary's "complete discretionary authority" to direct the 
company's operation, set its goals, and determine its "expectations for growth" and stated that the 
Beneficiary's primary responsibilities will be to develop, implement, and evaluate policies that affect 
the company's finances and "market position" and to evaluate investment opportunities to expand 
the business, such as purchasing a full-scn'ice gas station/convenience store. 
In the denial decision, the Director found that the Petitioner's job description lacked sufficient detail 
and did not lead to a meaningful understanding of the Beneficiary's actual job duties. The Director 
stated that the Petitioner did not provide sufticient information about the day-to-day duties involved 
in directing the management of a vacation rental business or adequately explain how its operational 
tasks arc can·ied out given that it did not provide subordinate employee job descriptions. 
On appeal, the Petitioner focuses on its organizational needs, claiming that the Beneficiary's 
employment is critical to its continued success. The Petitioner claims that the Beneticiary has 
autonomy in making business decisions that will affect the company's growth and financial well­
being and fi.1rther states that the Beneficiary will be tasked with identifying additional revenue 
sources and business opportunities, such as the gas station/convenience store it purchased shortly 
after filing this petition. 
We find, however, that the Petitioner did not adequately describe the Beneficiary's underlying daily 
job duties or explain what specific tasks are involved in looking for business opportunities. In the 
above job description, the Petitioner claimed that 35% of the Beneficiary's time would be allocated 
to assessing "business procedures" and directing "operational activities." However, the Petitioner 
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Mauer of!'-!-. Inc. 
did not spccilically identify any "business procedures" or "operational activities" within the scope of 
its business operation. nor did it adequately establish that someone other than the Beneficiary was 
available to carry out the "operational activities" at the time of filing. Likewise, the Petitioner did 
not establish that developing marketing strategies, meeting with vendors, and recruiting subordinates 
to perform daily functions are executive-level tasks. 
While the Beneficiary is not required to allocate I 00% of his time to executive-level tasks to meet 
the statutory criteria, the Petitioner must establish that the non-qualifying tasks the Beneliciary 
would perform are only incidental to the proposed position. An employee who "primarily" performs 
the tasks necessary to produce a product or to provide services is not considered to be "primarily" 
employed in a managerial or executive capacity. See. e.g, sections IOI(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); lvlatter of 
Church Scientology Int '/, 19 I&N Dec. 593, 604 (Comm'r 1988). 
Although the Petitioner established that the Beneficiary has a high degree of discretionary authority 
that is consistent with that of an executive, the Director correctly observed that the Petitioner did not 
provide suflicient information about the Beneliciary's specific daily job duties, thereby precluding 
us from being able to ascertain the nature of the tasks that would occupy the primary portion of his 
time .. Reciting the Beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sutlicient; 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. Co., Ltd. v. 
Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
On appeal, the Petitioner broadly states that the Beneficiary's "main responsibilities" will be to 
evaluate and implement the company's policies and strategies. However, it does not specify any 
strategies or policies or identif)' the specilic tasks that will be involved in meeting these key 
responsibilities. Despite the Petitioner's need to employ the Beneliciary in a position where he 
would lead the company and be in charge of its business decisions, the Petitioner has not established 
that the actual tasks to be performed by the Beneliciary on a daily basis would primarily focus on 
directing the management of the organization and establishing its goals and policies. 
In light of the above analysis, we find that the Petitioner has not provided sufficient evidence to 
establish that the Beneficiary would be employed in an executive capacity. 
III. ABILITY TO PAY 
The Director also found that the Petitioner did not .establish that it had the ability to pay the 
Beneficiary's proffered wage at the time this petition was filed. 
When filing a Form l-140, a petitioner is required to provide copies of its annual reports, federal tax 
returns, or audited financial statements to establish that it had the ability to pay the beneliciary's 
proffered wage at the time the priority date is established and continuing until the beneficiary obtains 
lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
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Mauer of P-1-. Inc. 
In the present matter, the Petitioner filed its Form 1-140 in December 2016 stating that the 
Beneficiary's proffered wage is $42,000 per year. On appeal the Petitioner provided its 2016 tax 
return showing a negative net income of $102,471. Although the tax return indicates that the 
Petitioner paid $67,452 in salaries in wages, the record does not include payroll documents or Form 
W-2s for 2016 to show the recipient(s) of those wages, nor did the Petitioner provide evidence that it 
paid wages to the Beneficiary in 2016. 
If the net income the Petitioner had available during the pertinent period added to the wages paid to 
the Bencticiary during the period docs not equal the amount of the proffered wage or more, we will 
review the Petitioner's assets. Net current assets are derived by taking the difference between a 
petitioner's current assets and its current liabilities. A corporation's year-end current assets are 
shown on Schedule L, lines I through 6; its year-end current liabilities are shown on lines 16 through 
18. If the total of a corporation's end-of~year net current assets and the wages paid to the beneficiary 
(if any) are equal to or greater than the profTered wage, the petitioner is expected to be able to pay 
the proffered wage using those net current assets. 
In the present matter, the Petitioner's net current assets in 2016 totaled $41,398, which f~1lls short of 
the profTered wage. On appeal, the Petitioner requests that we consider its $1,945 security deposit as 
a current asset. However, the Petitioner included the security deposit funds in Schedule L, line 14 of 
the 2016 tax return as "other assets." Therefore, the Petitioner has not established that the security 
deposit can be considered a current asset. 
In light of the above, the Petitioner has not established its ability to pay the Beneficiary's proffered 
wage as of the time of filing. 
IV. CONCLUSION 
For the reasons discussed above, we lind that the Petitioner has not established that the Beneficiary 
will be employed in the United States in an executive capacity or that it had the ability to pay the 
Beneficiary's proffered wage at the time of tiling. The appeal will be dismissed for these reasons. 
ORDER: The appeal is dismissed. 
Cite as Maller o{P-1-. Inc., ID# I 141813 (AAO Apr. 10, 20!8) 
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