dismissed EB-1C Case: Pvc Pipe Industry

0 U.S. Citizenship 
"' and Immigration 
Services 
MATTER OFT- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 21, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which describes itself as a purchaser and distributor of raw materials and machinery 
for the PVC pipe industry, seeks to permanently employ the Beneficiary as its chief executive officer 
(CEO) under the first preference immigrant classification for multinational executives or managers. 
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 record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
On appeal, counsel for the Petitioner asserts that the Director erred by reaching contradictory 
conclusions and insufficiently reviewing the record. The Petitioner states that previously submitted 
job descriptions are consistent with eligibility. 
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 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has 
been doing business for at least one year. See 8 C.F.R. § 204.50)(3). 
Matter of T- LLC 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner does not claim that it seeks to employ the 
Beneficiary in a managerial capacity, and in fact claims that the Director erred by referring to the 
requirements for a managerial capacity. Therefore, we restrict our analysis to whether the Petitioner 
seeks to employ the Beneficiary 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 
101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
Based on the statutory definition 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 
1533 (9th Cir. 1991) (unpublished table decision). Second, 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. 
When examining the claimed executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe 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(i)(5). Beyond the required description of the 
job duties, we examine 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, 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. Duties 
The Petitioner provided the following breakdown of the Beneficiary's time: 
• Approximately 10 hours of the week will be allocated to provide ground settings 
guidelines and methodology in the preparation of the strategic plan and budget; 
provide methodology and support in the design, implementation and monitoring 
of quality assurance systems; Provide the ground settings, guidelines and 
methodology used in optimizing the financial resources necessary to achieve the 
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Matter of T- LLC 
objectives set; Provide content and participate in the strategic definition to ensure 
consistency between plans and budgets. 
• Approximately 5 hours of the week will be allocated to ensure the alignment of 
marketing strategies; Implement best practices and strategic planning and budget 
organization and actively promote its use; Play a part in the evaluation of high­
impact strategic decisions on behalf of the Petitioner. 
• Approximately 8 hours of the week will be allocated to develop scenarios and 
analyze the implications for the organization; Track international strategic trends 
and analyze the business impact; Generate and evaluate strategic options; 
Coordinate the preparation of indicators and benchmarks to measure progress; 
Coordinate the standardization and documentation of procedures and monitor the 
implementation of plans. 
• Approximately 7 hours of the week will be allocated to lead the Petitioner to 
expand its business by adding to its existing product line; Set the foundation of a 
market development strategy to achieve growth through existing products in new 
markets; Design financial strategies; Expand the marketing territory by capturing 
new markets in terms of customers. 
• Approximately 5 hours of the week will be allocated for following up with 
activities of developing training plans, career plans, schemes, promotion, and 
performance evaluations. 
The above job description provides little information about specific tasks the Beneficiary performs 
and will perform. General assertions of responsibility attest to the level of the Beneficiary's 
responsibility, but do not show that the Beneficiary only oversees the various company functions 
without having to perform them himself. To reach that understanding, we must look at the 
company's staffing. For example, the assertion that the Beneficiary will lead "market development 
strategy" requires evidence of a subordinate marketing staff, with dedicated management, to show 
that the Beneficiary is not performing or managing marketing work himself, but, rather, directs the 
management of marketing. That issue, discussed below, formed the basis of the Director's finding. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we 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) of the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. 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 
management for a beneficiary to direct and a beneficiary must primarily focus on the broad goals 
and policies of the organization rather than the day-to-day operations of the enterprise. An 
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Matter of T- LLC 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an 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." Section 101(a)(44)(B) of the Act. 
In the denial decision, the Director did not discuss the Beneficiary's intended duties. Instead, the 
Director found that the information about the company's staffing did not appear to indicate that the 
Beneficiary would have sufficient subordinates to relieve him from having to perform primarily non­
qualifying tasks. 
Tax documents show that the company had seven employees in 2015 and 2016. The Petitioner 
initially submitted an organizational chart showing the following structure: 
Office Manager 
I 
Customer Service 
Representative 
CEO [the Beneficiary] 
Purchasing Manager Legal Consultant 
I 
Purchasing Agent 
Technical Control 
Specialist 
In an accompanying letter, the Petitioner referred to one of the employees as a "legal consultant and 
contract administrator." The letter included job descriptions for the listed positions. The Petitioner 
asserted that several of the positions require a bachelor's degree, and one (legal consultant/contract 
administrator) requires a law degree. If true, these requirements could qualify the positions as 
professional. But supervision of professional subordinates is an element of a managerial capacity, 
but not of an executive capacity. The Petitioner's assertion on appeal that "four professionals 
report[] directly to" the Beneficiary is not facially qualifying to show executive capacity. 
In order for subordinates' roles to help establish an executive capacity, as the Petitioner seeks to do 
here, the subordinates must qualify as managers. Two of the Beneficiary's claimed subordinates 
have managerial titles, but the job descriptions initially submitted for both of those individuals 
include a number of non-managerial tasks. 
The office manager's listed duties, as worded, appear to include clerical functions such as 
"controlling correspondence" and "preparing payroll," and performing (rather than managing) 
human resources functions. A chronology of past hires indicated that the company hired an 
executive assistant who left the company in 2013. There was no indication of a replacement, and 
therefore the typical clerical and administrative duties of an executive assistant must have devolved 
upon one or more other employees. 
Also, while the office manager's job description included a rough breakdown of the time spent on 
various activities, the categories of activities were very broad. For instance, the Petitioner stated that 
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Matter of T- LLC 
the office manager spends 13 hours per week on a range of activities spanning from "preparing 
payroll" to "reviewing and approving supply requisitions" to "[ o ]versee[ing] the maintenance and 
repair of machinery." 
The Petitioner initially asserted that the purchasing manager spends five hours per week overseeing 
the purchasing agent, and 20 or more hours per week contacting vendors and approving transactions. 
Later, however, in response to a request for evidence (RFE), the Petitioner submitted a new job 
description for the same employee (now referred to as "purchasing director"). The new job 
description did not mention supervision of any subordinates. It included several tasks absent from 
the first job description, such as "[p ]rocessing data," "comparing items requested to master list," and 
"monitoring inventory levels." 
The staffing information that the Petitioner provided does not show that the Beneficiary directs the 
management of the petitioning company by overseeing managers who, in tum, perform primarily 
managerial functions. Furthermore, there is another issue which formed the focus of the Director's 
denial notice. 
None of the job descriptions in the Petitioner's introductory letter referred to offsite work, but the 
Petitioner also submitted copies of vendor services agreements between the Petitioner and 
which the Petitioner described as "one of the largest manufacturers of solvent cements 
in the U.S." 1 The agreements, one of which was in effect at the time of filing, required the Petitioner 
to provide four of its employees to specified as "Technical Manager," "Office Manager," 
"Inside Sales Representative/Export-Customer Service," and "Purchasing/Inventory Control 
Manager." Most of these titles resemble, but do not fully match, job titles on the Petitioner's initial 
organizational chart. The agreements refer to employment contracts with each employee, but the 
record does not contain copies of those contracts. 
The Petitioner provided job descriptions indicating that each employee devoted 35 hours per week to 
the duties so described. To varying degrees, however, those job descriptions differ from the 
descriptions set forth in the vendor services agreement with This conflict raises several 
questions: what functions do these employees actually perform; where do they perform them; and 
who exercises managerial control over their work. 
In the RFE, the Director noted that the agreement with "leaves only two employees to 
handle the non-managerial or non-executive duties" at the petitioning company. In response, the 
Petitioner submitted a revised organizational chart, indicating that the Beneficiary, the office 
manager, and the legal consultant work at the petitioning company, while the other four employees 
work at 
1 The Petitioner asserted that it has an indirect relationship with because the same family that owns the 
Petitioner's foreign parent company also owns which owns a controlling interest in 
But the Petitioner did not claim, or establish, that the Beneficiary has, or will have, any authority over 
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Matter ofT- LLC 
On the revised chart, the title "Technical Manager" replaced the prior title "Technical Control 
Specialist," although the same individual was named in the position. Despite the managerial title, 
the job description did not indicate that the position is managerial. Duties include operational tasks 
such as "new product development," "lab testing ... of products," and providing 
"technical support." Furthermore, as discussed above, these tasks would be performed at, and for, 
rather than for the Petitioner. 
The Petitioner submitted a new set of job descriptions, on its own letterhead. The newly submitted 
job description for the office manager matched the one in the Petitioner's initial letter. A new 
vendor services agreement with like the previous versions, included an office manager 
position with very different duties from the position said to be on-site at the petitioning company. If 
the Petitioner's office manager remained at the petitioning company, as the Petitioner specified, but 
the Petitioner also supplied an office manager to as three separate agreements all showed, 
then the job titles submitted by the Petitioner cannot be fully accurate . 
The job descriptions for the technical manager and customer service positions resemble the 
descriptions in the agreements. The purchasing agent' s job description is worded 
differently from the Petitioner's initial description, but a number of the duties described are broadly 
similar. The purchasing director's job description is new, but shares some elements with the 
previously submitted job descriptions for the purchasing manager and purchasing agent. 
The job description that raises the most serious questions is that of the legal consultant, with the 
following "Essential Duties and Responsibilities ": 
• To communicate with the academic partners and conduct new research and draw 
from the existing research and reports that have been produced in house by the 
other resources as well 
• To obtain expert support as well as feedback during the entire project so that the 
legal work procedures proceed without any interruptions 
• To conduct in depth analysis of the available data that is available on temporary 
visa programs , labor abuses, visa regulations, etc., that are occurring in various 
visa programs and to address the key policy issues 
• To finalize and draft the written summaries of the visa programs so that they can 
be published on the website 
• To be involved in the planning and overseeing the dissemination of the summaries 
The above description does not at all resemble the original job description for the contract 
administrator; that description emphasized preparing correspondence, maintaining contracts, and 
issuing purchase orders. In its response to the RFE, the Petitioner did not explain why a PVC pipe 
supply company with only three on-site employees would require one of those employees to 
"conduct in depth analysis" regarding "visa programs. " 
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Matter of T- LLC 
In the denial notice, the Director found that, because most of the Petitioner's employees were on 
loan to the Petitioner did not appear to have "sufficient staff to relieve the beneficiary 
from non-managerial duties." Because most of the Petitioner's employees actually work at 
the Director concluded that the Beneficiary's "job description may not be an actual portrayal 
of what the beneficiary is actually doing on a daily basis." The Director questioned "how [the 
Petitioner] is able to function as a business" under the staffing arrangement described in the record. 
On appeal, counsel for the Petitioner asserts that the office manager, purchase manager, contract 
administrator/legal consultant, and technical control specialist all report directly to the Beneficiary, 
even though they "are working from in order "to strengthen and cultivate the cultural 
business and operations standards of the foreign company into the newly acquired business." 
Assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's 
statements must be substantiated in the record with independent evidence, which may include affidavits 
and declarations. In this instance, the record offers no support for counsel's claim that the four 
employees "are working from rather than working for __ and thus continue to 
work for the Petitioner under the Beneficiary's authority. 
The vendor services agreements give no indication that the employees divide their time between the 
two companies. The agreements specify that the employees will "provide specified services to 
and ... agrees to compensate [the Petitioner] for the services to be provided by [the 
Petitioner's] employees." As of 2017-2018, that compensation was $30,300 per month, which is 
significantly more than the combined monthly salaries of those four employees. Thus, the two 
companies are not splitting the salary costs of the four employees. 
It is evident from the agreements that the employees in question are working for in 
exchange for these monthly payments; they are not simply stationed at in an effort to 
integrate into the larger organization. Furthermore, the record indicates ( and counsel 
acknowledges) that acquired in 2013, only two years after the 
Petitioner's own founding in 2011. Counsel does not explain how was still a "newly 
acquired business" five years later when counsel prepared the appellate brief. 
The positions described in the vendor services agreement are not the same as the ones the Petitioner 
described. Most of the Beneficiary's claimed subordinates are the Petitioner's employees only on 
paper; they are effectively working for contractually required to perform work for that 
company, which, in tum, pays their whole salaries and then some. The Beneficiary oversees only 
two on-site employees, and has submitted questionable information about both of them. The 
Petitioner submitted conflicting job descriptions for the legal consultant/contract administrator. The 
Petitioner maintains that the office manager works on-site, but the three vendor services agreements 
2 The vendor services agreements routinely omit the hyphen from ' 
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Matter of T- LLC 
all specify that the Petitioner will supply an "office manager" to . with duties that are 
significantly different from those in the descriptions the Petitioner has provided. 
The record contains several invoices indicating that the Petitioner - not - shipped 
products such as tape, weld mount screens, and plasticizing units to various customers. The 
Petitioner likewise ordered inventory from several sources (including l), with instructions 
to ship the products directly to the Petitioner (which implies the presence of staff to handle the 
incoming deliveries). The Petitioner has not explained who handled these transactions at a time 
when the company ' s minimal sales staff was contracted to work for 
Because the Petitioner has submitted inconsistent job descriptions for several of its employees, there 
is no assurance that the Beneficiary's own job description is any more reliable. Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Due to the inconsistencies and deficiencies described above, the Petitioner has not established that 
the Beneficiary will direct the management of the petitioning entity instead of perform the 
operational functions of the company. 
III. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in a primarily executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fT- LLC, ID# 1772697 (AAO Nov. 21, 2018) 
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