dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 9, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which sells hunting supplies and exercise equipment, seeks to permanently employ 
the Beneficiary as its general manager and director 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, Nebraska Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that the Beneficiary will be employed in the United States in a 
managerial or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits copies of previously 
submitted evidence and asserts that the Director erred because the Petitioner submitted sufficient 
evidence to establish eligibility by a preponderance of the evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers.- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain multinational executives and managers. An alien is described in this 
subparagraph if the alien, in the 3 years preceding the time of the alien's 
application for classification and admission into the United States under this 
subparagraph, has been employed for at least 1 year by a firm or corporation or 
other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter 
Matter of L- Corp. 
the United States in order to continue to render services to the same employer or 
to a subsidiary or affiliate thereof in a capacity that is managerial or executive. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.F.R. § 204.5G)(3) states: 
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager 
must be accompanied by a statement from an authorized official of the 
petitioning United States employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside 
the United States for at least one year in a managerial or executive 
capacity by a firm or corporation, or other legal entity, or by an affiliate 
or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same 
employer or a subsidiary or affiliate of the firm or corporation, or other 
legal entity by which the alien was employed overseas, in the three years 
preceding entry as a nonimmigrant, the alien was employed by the entity 
abroad for at least one year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
least one year. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity. The Petitioner refers to the 
Beneficiary's position at times as managerial, and at other times as executive. 
The regulation at 8 C.F.R. § 204.5G)(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. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
2 
Matter of L- Corp. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-.day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable rieeds of the organization, in light of the overall purpose and stage of development of 
the organization. 1 
1 See section 10l(a)(44)(C) ofthe Act. 
3 
(b)(6)
Matter of L- Corp. 
A. Evidence of Record 
The Petitioner filed Form I-140 on April 3, 2015. On the Form I-140, the Petitioner indicated that it 
had six current employees in the United States and a gross annual income of $1,694,790. 
a member of the Petitioner's board· of directors, listed the Beneficiary's job duties and 
the approximate percentage of time spent on each of them: 
• Managing the operations of the company (15%) 
• Presiding over and providing management for the company and operations (15%) 
• Leading company strategic development m the U.S. based on the partnership 
agreements with (10%) 
• Recruiting and training staff ( 5%) 
• Deciding the market niche and leading sales development (5%) 
• Meeting and negotiating contracts with existing and potential customers (5%) 
• In charge of overall administrative management including daily supervision of 
company operation, developing and modifying as needed a budget that is consistent 
with operational and strategic planning, and monitoring employee performance and 
designing methods of incentives, etc. (15%) 
• Managing the operations of [parent company] (30%) 
On Form I-140, the Petitioner claimed seven employees in the United States, but 
only six employees. The Petitioner's organizational chart also shows six employees: 
General Manager and Director 
Board Member Sales Coordinator Executive Assistant 
Sales Sales 
provided very brief job descriptions for each of the company's other employees: 
Board Member: Director of [the petitioning entity] 
identified 
Executive Assistant: Assist [the Beneficiary] and with English/Chinese Translations 
Sales Coordinator: Coordination of sales orders, accounting and QA with customers 
Sales (1 ): Internet sales and web development 
Sales {2): Wholesale and retail customer base 
The Director issued a request for evidence (RFE), stating that the Petitioner had not provided 
sufficient job descriptions for the Beneficiary or his subordinates. " 
In response, provided "some more details of [the Beneficiary's] job duties": 
4 
(b)(6)
Matter of L- Corp. 
[The Beneficiary] allocates about 55% of his time on exerctsmg his full-scale 
leadership over the company's daily operation and performance, making [the] 
company's long-term development strategy, and reviewing and approving [the] 
company's major transactions and financial issues; and steers and monitors [the] 
company's daily operation and performance. He supervises the strategic planning 
and risk management for the company; oversees the development and improvement 
of standard financial performance ; reviews and approves all major commercial and 
financial issues; sets fiscal objectives and business goals for [the Petitioner]; develops 
and executes financial budgets to implement for marketing, sales, and public relations 
strategies in order to achieve key project objectives; creates and implements annual 
and quarterly budgeting plans that include total market research, planning, and 
financial return analysis; and reviews and analyzes market reports on existing and 
new products. 
[The Beneficiary] allocates about 3 0% of his time in managing the operations of [the 
foreign parent company] and representing [its] interest in the U.S.: 
• Decides on major business events, financial plans. 
• Approves new investment opportunities and new products, and approves 
financial support. 
• Approves major contracts with [the parent company's] existing and new 
customers. 
• Monitors significant financial and market trends and take[ s] appropriate action 
to diversity clientele and to manage market risk. 
• Directs as needed the general manager and department heads of [the foreign 
.company] to manage the operations ofthe company. 
[The Beneficiary] allocates about 15% of his time in networking, maintaining and 
developing business relationships with customers and seeking out new business 
opportunities for [the foreign parent company]. He represents and promotes [the 
parent company] in major local, national and international business events and trade 
shows; meets regularly with business partners and major accounts to obtain customer 
feedback regarding (the parent company's] products and areas for improvement and 
to introduce new products and services; maintains executive level contacts and 
relationships with key customers, channel partners, industry influencers and decision 
makers; and consults with CP As, attorneys and government agents to ensure legal 
compliance of [the parent company' s] international trade operation. 
also repeated essentially the same percentage breakdown submitted previously. 
As an example of the Beneficiary 's leadership of the petitioning company, described how 
the Petitioner, under the Beneficiary 's direction, purchased partial ownership of a hunting supply 
company in 2012. 
5 
(b)(6)
Matter of L- Corp. 
The Director denied the petition, concluding that the Petitioner had not established that the 
Beneficiary would serve in a managerial or executive capacity. The Director stated that the 
percentage breakdown of the Beneficiary's duties did not identify specific tasks, and therefore "[t]he 
petitioner has not provided a clear and detailed description of the beneficiary's proposed duties in 
the United States." 
On appeal, the Petitioner states that it had submitted all requested evidence. The Petitioner quotes 
from letter in response to the RFE, and states that this letter "provided detailed duties of 
the beneficiary." 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed 
in a managerial or executive capacity in the United States. 
When examining the executive or managerial capacity of a given beneficiary, we will look first 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.3 
The Petitioner, on appeal, disputes the Director's finding that the Petitioner did not identify the 
Beneficiary's specific tasks in sufficient detail, but the record supports the Director's finding. In the 
percentage breakdown, the Petitioner listed, as distinct and separate elements of the job, 
"[m]anag[ing] the operations of the company," "providing management for the company and 
operations," and "daily supervision of company operation." The Petitioner has not explained how 
these similar-sounding 
elements are different enougl; from one another to qualify as separate duties. 
The Petitioner stated that the Beneficiary devotes more than half of his time to leading and 
developing the company and monitoring its performance. The Petitioner described these duties in 
vague terms that do not specify what the Beneficiary does to perform those functions. The Petitioner 
stated that the Beneficiary "supervises the strategic planning and risk management for the company 
[and] oversees the development and improvement of standard financial performance," but the 
Petitioner has not specified who actually performs the strategic planning, risk management, 
development, and improvement that the Beneficiary is said to oversee and supervise. 
Furthermore, the duties described are generic, with no indication of tasks or responsibilities specific 
to the sale of hunting supplies and exercise equipment. Specifics are clearly an important indication 
of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting 
2 See 8 C.F.R. § 204.5(j)(5). 
3 Jd. 
6 
Matter of L- Corp. 
the definitions would simply be a matter of reiterating the regulations. 4 The actual duties themselves 
reveal the true nature of the employment. 5 Therefore, reciting general job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
Beneficiary's daily job duties. 
The Petitioner states that the Beneficiary "allocates about 30% of his time in managing the 
operations of' the Petitioner's parent company in China. The Beneficiary's authority over a foreign 
company does not qualify him for immigration benefits simply because he now exercises that 
authority within the United States.6 
The Petitioner has not provided enough detailed information about the Beneficiary's duties to 
establish that those duties are primarily managerial or executive. 
Beyond the required description of the job duties, USCIS reviews the totality of the record 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. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers."7 Personnel managers are required to primarily supervise and control the work 
of other supervisory, professional, or managerial employees. 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." 8 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.9 
The Petitioner has indicated that the Beneficiary has authority over a supervisory employee, 
specifically the sales coordinator who supervises two sales employees. This authority is a necessary, 
but not sufficient, element of the definition of a personnel manager. Hiring authority and oversight 
over a supervisory employee are consistent with managerial authority, but they do not, by 
themselves, show that the Beneficiary meets all of the relevant qualifications. 
4 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). 
5 !d. . 
6 See 8 C.F.R. § 204.5(j)(2), which states that "the mere presence of an agent or office" in the United States does not 
constitute "doing business." From this definition, it is clear that an official of an existing foreign business cannot qualify 
for immigration benefits simply by moving to the United States while continuing to control the foreign business. 
7 See section 101(a)(44)(A)(i) and (ii) of the Act. 
8 Section 101(a)(44)(A)(iv) ofthe Act; 8 C.F.R. § 204.5(j)(4)(i). 
9 8 C.F.R. § 204.5(j)(2). 
7 
(b)(6)
Matter of L- Corp. 
Also, the Petitioner has not shown that supervisory duties are a significant element of the sales 
coordinator's job. The Petitioner's own brief description of the position indicates that the sales 
coordinator's principal responsibilities are "[c]oordination of sales orders, accounting and QA 
[questions and answers] with customers." At $32,500 per year, the salary ofthe sales coordinator is 
lower than the $33,800 paid to one of that person's stated subordinates. 
The executive assistant performs administrative functions, and the Petitioner has not shown that this 
individual holds a supervisory, managerial, or professional position. The Petitioner has provided 
minimal information about the duties allocated to as "board member," an individual with 
no designated subordinates on the organizational chart. 
The Petitioner has not established, in the alternative, that the Beneficiary will be employed primarily 
as a "function manager." The term "function manager" applies generally when a beneficiary's 
man~gerial role arises not from supervising or controlling the work of a subordinate staff but instead 
from responsibility for managing an "essential function" within the organization. 10 The statute and 
regulations do not define the term "essential function." If a petitioner claims that a beneficiary will 
manage an essential function, that petitioner must clearly describe the duties to be performed in 
managing the essential function, i.e., identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties dedicated to 
managing the essential function.'' In addition, a petitioner's description of a beneficiary's daily 
duties must demonstrate that the beneficiary will manage the function rather than perform the duties 
related to the function. 
In this case, as discussed above, the Petitioner has provided minimal and repetitive information 
about the Beneficiary's duties. The submitted job description indicates that the Beneficiary has 
authority over the company, but does not include enough information to demonstrate that he 
primarily serves as a function manager. It cannot suffice to assert, as the Petitioner does on appeal, 
that "the beneficiary devotes essentially his entire time directing the management of [the Petitioner's 
and the parent company's] operations." 
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. 12 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 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 
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 
10 
See section 101(a)(44)(A)(ii) ofthe Act. 
11 
See 8 C.F.R. § 204.5(j)(5). 
12 Section 10l(a)(44)(B) ofthe Act. 
8 
(b)(6)
Matter of L- Corp. 
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." 13 
originally referred to the Beneficiary's position as managerial, but the appellate brief 
(prepared by counsel) states that the Beneficiary will serve in an executive capacity, "directing the 
management of [company] operations, establishing the goals and policies of the companies, and 
exercising wide latitude in discretionary decision-making." These phrases simply repeat the 
language of the statutory definition, which cannot suffice to meet the Petitioner's burden ofproof. 14 
The Petitioner has not established an organizational hierarchy that would require layers of 
management and executive authority. Instead, the Petitioner's organizational chart shows six 
employees, with only one of the Beneficiary's subordinates exercising any apparent direct 
supervisory authority. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section J 01 (a)( 44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" of an executive or managerial nature. 15 While the Beneficiary 
may exercise discretion over the Petitioner's day-to-day operations and possesses the requisite level 
of authority with respect to discretionary decision-making, the position description alone is 
insufficient to establish that his actual duties, as of the date of filing, would be primarily managerial 
or executive in nature. 
We also consider the proposed position in light of the nature of the Petitioner's business, its 
organizational structure, and the availability of staff to carry out the Petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a Petitioner has, USCIS "may properly consider an organization's small size as one factor 
in assessing whether its operations are substantial enough to support a manager." 16 Furthermore, it 
is appropriate for USCIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that 
does not conduct business in a regular and continuous manner. 17 
The Director found that the Petitioner did not "show who ... will handle the non-qualifying tasks 
related to shipping and receiving, marketing, budgeting, inventory and customs." The Petitioner, on 
13 !d. 
14 See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1108. 
15 Sections 101(A)(44)(A) and (B) ofthe Act. 
16 Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
17 See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
9 
(b)(6)
Matter of L- Corp. 
appeal, has not addressed this finding except for the summary declaration that the record "clearly 
shows that the beneficiary spends essentially all of his time on executive duties." 
Judging from the submitted job descriptions, the Petitioner appears to be largely a sales office for its 
foreign parent company. Three of its six employees have sales-related duties. Of the remaining 
employees, one is an administrative assistant and another is who sits on the Petitioner's 
board of directors (apparently with the Beneficiary) but who has no defined duties with the 
company. 
is also the president of which owns 2% of the petitioning 
company. A joint marketing agreement between and the Petitioner's parent company indicates 
that ' is a company engaged in the business of designing, developing, selling and distributing 
various fitness products." The Petitioning entity appears to have been formed under the terms of this 
agreement. The agreement defined no specific purpose for the formation of the company apart from 
the marketing and sale of the parent company's products and inventory purchased from 
conducted from "one (1) office space located at principal place of business." This information 
indicates that the Petitioner essentially functions as a distributor for products. The Petitioner's 
role in such an arrangement appears to be substantially more limited than other descriptions of the 
company indicate or imply. This information is relevant when considering the question of whether 
the Petitioner's business activity and organizational structure warrant a qualifying managerial 
position within the company. 
stated that, following its 2012 purchase of a partial ownership interest in a hunting supply 
company, the Petitioner "has been focusing on new product development and introductions," but the 
record does not show that this activity continues or identify the employees performing it. 
stated that the Petitioner previously employed a new product development manager who "left the 
company in April 2015." The Petitioner does not state that it hired a replacement, and product 
development is not part of any of the submitted job descriptions. The Petitioner has not specified 
who, if anyone, performs this non-qualifying operational function. 
The Petitioner, on appeal, states that "[t]he RFE response ... included ... a detailed organizational 
chart demonstrating the beneficiary's executive role and the functions managed/performed by her 
[sic] subordinates." The subordinates' job descriptions in the RFE response are slightly longer than 
those provided previously, but still contain minimal detail: 
Board Member: Assist [the Beneficiary] in overseeing company 
operations and report to [him]. 
Executive Assistant: Assist [the Beneficiary] and in administrative and HR management 
Sales Coordinator: Coordination of sales orders, accounting and QA with customers 
Sales (1): Internet sales and web development 
Sales (2): Wholesale and retail customer base 
New Product Development Manager: Design and develop new products (Hunting and Exercise) 
10 
Matter of L- Corp. 
The Petitioner's characterization of the Beneficiary's duties as being primarily managerial (or, on 
appeal, executive) is simply not realistic in light of the company's structure and minimal 
documented activity. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
will be employed in a managerial or executive capacity in the United States. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above reason. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner.18 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofL- Corp., ID# 18087 (AAO Aug. 9, 2016) 
18 Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 261&N 127, 128 (BIA 2013). 
II