dismissed EB-1C Case: Sales And Property Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-P- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 31, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which sells fuel dispensers and hand sanitizer an·d owns a mixed-use property, seeks 
to permanently employ the Beneficiary as its vice president under the first preference immigrant 
classification for f!1Ultinational. executives or managers. Immigration and Nationality Act (the Act) 
section ~03(b)(l)(C), 8 U.S.C. § 11~3(b)(l)(C). This classification allows a U.S. employer to 
permanently transter a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Acting Director of the _Nebraska 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 
an executive capacity. · -
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by relying 
on "arbitrary speculation" and "non-existent new legal standards." 
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. § 204.5{j)(3). 
Matier qf S-P- Inc. 
11. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in an 
executive capacity. The Petitioner does not claim that it will employ the Beneficiary in a managerial 
capacity. 
"Execu"tive 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 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 p~imarily engaged in executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Fami(y Inc. v. USC!S, 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. § 204.50)(5). Beyond the required description of the 
job duties, we examine t~e 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. Because the Director's decision 
focused on the company's staffing, we will begin there. 
A. Staffing 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services 
(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. 
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Matier of S-P- Inc. 
The Petitioner stated that it "currently runs its operations with human resources comprising six U.S. 
employees, additional work force operating [ at the Petitioner's affiliate] in Nigeria, independent 
contractors who handle the legal, tax and accounting needs of. the company in the United States and 
abroad; and outsourced personnel." The first version of the Petitioner's organizational chart showed the 
following structure: 
Board of Directors & Chainnan of the Board 
I 
. Vice President [the Beneficiary] 
Accounting (Outsourced) Executive Assistant General Manager Legal (Outsourced) 
Facilities Manager Market Research Analyst Country Manager for Nigeria 
Maintenance 
(Vacant) 
Security 
(Outsourced) 
Sales 
(Vacant) 
A revised chart, submitted later, showed the following changes: 
I 
5 Engineers (2 Sales, 3 Maintenance) 
(in Nigeria) 
• The Petitioner hired a deputy general manager/sales manager, located between the general 
manager and all lower-level employees; 
• The Petitioner replaced the U.S.-based country manager for Nigeria with a new country 
manager stationed in Nigeria; 1 
• The new country manager for Nigeria supervised a "Cleaning and Hygiene Products Sales 
Team in Nigeria" comprising a marketing/commercial manager, an assistant marketing 
manager, two marketing executives, and a delivery and logistics worker; 
• The Petitioner replaced its facilities manager, and the position's only listed subordinates were 
outsourced repair and maintenance workers; and 
• The market research analyst, now. with the added title of online product sales specialist, 
supervised sales _functions which had been outsourced to an online retailer. 
IRS Forms W-2, Wage and Tax Statements, show that the Petitiorier paid six employees in 2016 and 
2017, the years bookending the petition's January 2017 filing date: 
The Beneficiary 
General Manager 
Sales Manager/Deputy General Manager 
Facilities Manager · 
Market Research Analyst 
Executive Assistant 
Country Manager, Nigeria 
2016 
$57,244.32 
42,212.20 
30,000.00 
24,200.00 
31,853.64 
18,900.00 
3 
2017 
$57,244.32 
17,502.40 
44,749.19 
5000.00 
26,400.00 
32,640.00 
.
Matter ofS-P- Inc. 
The above figures show that the Petitioner did not employ a U .S.-based country manager for Nigeria 
when it filed the petition in January 2017 . They also show that neither the general manager nor the 
facilities manager eame~ a salary consistent with year-round, full-time employment in 2017. The 
Petitioner submitted payroll and quarterly tax records for 20 I 6, but, significantly , not for 2017. 
In the denial notice, the Director found that the Beneficiary's position does not qualify as executive, due 
to "insufficient . . . staffing levels" .at the petitioning entity. Noting that the Petitioner paid just over 
$200,000 in salaries in 2016, the Director stated: "at the time of filing, the Petitioning entity had a 
skeletal staff that may not even ha[ve] been doing business on a routine permanent fulltime basis." The 
Director concluded that the Petitioner did not show that the company was "sufficiently mature and 
complex " at the time of filing to warrant a primarily managerial or executive position. 
On appeal, the Petitioner protests that the Director impermissibly required "a cadre of professionals 
·who are the employees who primarily perform the foundational or essential tasks of the 
organization. " The Petitioner asserts that the statute and regulations specify no salary requirements , 
and that the Director did not define how many high-level subordinates are necessary to constitute a 
"cadre ." The Petitioner contends that the Director impermissibly denied the petition based only on the 
size of the company , without considering the reasonable needs of the organization , in light of the 
overall purpose and stage of development of the organization , as required by section 10 I (a)(44)(C) 
of the Act. 
Nevertheless, the organization must be sufficiently developed to require the services of a manager 
or, in this case, an executive . When considering the Petitioner ' s staffing and the relative needs of 
the organization, we must also consider the nature of the Petitioner's business activity . When it filed 
the petition in January 2017, the Petitioner described a three-pronged business operation : (I) ownership 
of a multi-purpose rental property in overseen by the Petitioner's facilities manager ; (2) 
sales of cleaning products , manufactured by a contractor ; and (3) the sale and servicing of fuel pumps, 
for customers in Nigeria. 
The Petitioner documented its.ownership of a banquet hall and an adjacent church, and reported rental 
income on its 2016 tax return, but the Petitioner did not show the extent of its business activity beyond 
the passive act of owning the property and collecting rent. It is significant that the facilities manager 
has no subordinate employees ; the sales and maintenance positions were vacant on the first 
organizational chart, and the revised chart did not show those positions at all. The Petitioner has not 
shown who performs the operational tasks involved in running the banquet hall, or how many people 
(employees or contractors) are needed, and how frequently, to perform those tasks. Even the facilities 
manager position appears to have been vacant for most of 2017 (unless it involved minimal hours per 
week) . The Petitioner stated that contractors handle some property management functions, but the 
PeWioner did not document the company ' s use of contractors in this manner . 
The Petitioner has described plans to sell a range of hygiene and cleaning products, but the only such 
product documented in the record is hand sanitizer. A contractor manufactures the product, and it 
appears that the Petitioner sells the product via an online retailer , so it is not clear that anyone at the 
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Matter <?f S-P- Inc. 
company has any responsibilities relating to it. The revised organizational chart referred to a sales team 
in Nigeria, but this team did not appear on the original chart and it is not evident that the expanded 
product line exists. A petitioner must establish eligibility at the time it files the petition, continuing 
through the adjudication of the petition. See 8 C.F.R. § 103.2(b)(1). The subsequent or planned 
introduction of new products, and hiring ofrelated start: cannot retroactively establish eligibility. 
The bulk of the record concerns the purchase, sale, shipping, and service of fuel pumps. The Petitioner 
stated that it delegates operational functions such as sales, assembly, delivery, and technical service to 
"at least 11" employees of its affiliate in Nigeria. Invoices show that the Petitioner orders the fuel 
pumps and parts from outside vendors and sells them to the Nigerian atliliate. · That affiliate also 
employs the sales staff that sells the pumps to Nigerian customers. 
The record does not show that the Beneficiary has any customers in the United States, which justifies 
the Director's stated doubts about the extent to which the petitioning entity is doing business. The 
organization's substantive business activity takes place in Nigeria, with the petitioning U.S. entity 
playing a minimal, peripheral role that does not appear to require or justify a dedicated executive 
position. 
B. Duties 
The Petitioner provided a job description for the Beneficiary, which grouped the Beneficiary's 
responsibilities into five categories. The description also indicated the approximate time devoted to 
each category: 
25% Operational Policies and Procedures 
20% Logistics Management Policies and Procequres 
15% Finance and Risk Management 
20% Administration 
20% Corporate Strategy 
The formatting of the job description is inconsistent from one category to the next. For example, the 
"Logistics Management" details include many unnecessarily capitalized words, such as 
"Maximizing Utilization of Technology Options." Other categories do not include this 
capitalization. Some categories begin with a prefatory statement, others are sill}ply lists of bullet 
points. These formatting inconsistencies suggest that the Petitioner pieced together at least some of 
the job description from different, unrelated sources. 
Furthermore, the job description indicated that the Beneficiary is responsible for "[l]ogistics 
carrier/agent supervision and control" and "[p]roduct delivery logistics management and control in 
Nigeria," although the U.S. entity has no logistics workers and the Nigerian employees said to be 
under the Beneficiary's authority are not logistics workers. The record does not establish the extent, 
if any, of t~e. Beneficiary's authority over contracted carriers. 
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.
Matter<?/ S-P- lnc. 
When detennining the credibility of the Beneficiary's job description; we must also consider the 
credibility of the record as a whole . Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. 
Mauer of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
Various elements of the record raise questions . An agreement for a "Full Time Office" in 
California , specified that the Petitioner had rented office number 33 in a suite of 51 offices. A 
floor plan of the office suite shows that number 33 is an interior office with no exterior walls.· The 
Petitioner also submitted interior photographs of what it claimed was its office space , but the 
photographs show a comer office with exterior windows on two sides. The agreement appears to be 
missing a page; "Page 2" starts with item number 4, but there is no _accompanying page, numbered or 
unnumbered page, that shows items numbered 1-3 . "Page 2" also reters to a prior license agreement 
from 2013, which is not fully reproduced in the record. The incomplete evidence does not show why 
the office shown in the photographs does not match the office described in the agreement. 
The Petitioner initially submitted a retainer agreement regarding its efforts to register a U.S. trademark 
for its own brand of hand sanitizer , and later referred to selling that product "under its own trademark ," 
but the record includes no evidence to show that the U.S. Patent and Trademark Oflice approved the 
application. It is possible to claim a trademark without fonnal registration, but the Petitioner ' s specific 
reference to trademark registration leaves an open-ended issue, with respect to both the Petitioner's 
forthrightness in its representations and extent to which it has actively pursued its U.S. business 
ventures . 
The petition relies significantly on the Petitioner's apparent efforts to blur the line between the U.S. 
company and its affiliate in Nigeria. The Petitioner states that the U.S. entity "specializes · in the 
design & distributorship of Oil and Gas equipment," but the designing and distribution all occur at 
the foreign parent company . On its income tax returns , the Petitioner identified its " Business 
activity" as "Petroleum and Coal Products Manufacturing," and its " Product or service" as 
"Petroleum ." But the Petitioner's own description of its business activities does not include the 
manufacture of petroleum or coal products ; the Petitioner employs no manufacturing staff; and the 
Petitioner does not sell petroleum . The Petitioner's affiliate in Nigeria is involved in such 
manufacturing , but the affiliate is a separate legal entity from the U.S.-based Petitioner , and the tax 
return is only for the Petitioner , not for any related entities . 
Similarly, the Beneficiary's U.S . subordinates do not appear to be fully engaged in continuous 
. business activity . As noted above , the Petitioner paid its facilities manager only $5000 the year it 
filed the petition ; the record does not show precisely what the facilities manager has been doing; and 
that individual had no identified or documented subordinates , either employed or co·ntracted . The 
general manager , too, earned less than a full-time, year-round salary in 2017 , and the record offers 
minimal infonnation about the activities of the market research analyst. The Petitioner no longer · 
employs a country manager for Nigeria , because that position has moved to the foreign affiliate. 
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Matter £lS-P- Inc. 
The Petitioner has submitted two organizational charts for the U.S. entity, each of which indicated 
that the Beneficiary has authority over some employees in Nigeria, but the charts do not show the 
same group of employees. As noted above, the Petitioner has also contended that the Beneficiary 
has oversight over additional foreign activities, such as logistics, beyond what the organizational 
charts show. 
The Petitioner has documented minimal business activity on its own, and the Petitioner's key claims 
regarding the Beneficiary's executive authority rest on her asserted authority over workers in 
Nigeria. The overall impression is that the larger organization continues to transact business mainly 
in Nigeria, but has transferred one of its officials to the United States to create an appearance of 
multinational business activity. 
-
The Petitioner notes the prior approval of several nonimmigrant petitions, classifying the Beneficiary 
as an L-1- nonimmigrant intracompany transferee in a managerial or executive capacity. Those 
petitions are not before us for review. An adjudicator's fact-finding authority should not be 
constrained by any prior petition approval, but instead, should be based on the merits of each case. 1 
Ill. CONCLUSION 
The Petitioner did not establish that it seeks to employ the Beneficiary in the United States in a 
primarily executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-P- Inc., ID# 1864503 (AAO Dec. 31, 2018) 
1 See USCIS Policy Memorandum PM-602-0151, Rescission of Guidance Regurding Deference to Prior Determinations 
of Eligibility in the Adjudication of Petitions for fatension of Nonimmigrant Stu/us 3 ( October 23, 2017), 
http://www. usci s.gov/1 cgal-resourccs/pol icy-m cmoranda. 
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