dismissed EB-1C Case: Seafood Import/Wholesale

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: APR 0 3 2014 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational 
Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
....------ - - -- - - -- ~- --- --------, 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~ f Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the preference visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the Immigrant Petition for Alien Worker (Form I-140) to classify the beneficiary as a 
multinational executive or manager pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(1)(C). The petitioner, a Washington corporation, states that it engages in the 
import and wholesale of seafood products with six current employees and a gross annual income of "$3 
million+." The petitioner seeks to employ the beneficiary as its chief marketing officer. 
The director denied the petition on two alternate grounds, concluding that the petitioner failed to establish that 
1) the beneficiary was employed in an executive or managerial capacity for at least one year during the 
three-year period preceding his admission to the United States; and 2) the beneficiary will be employed in a 
qualifying managerial or executive capacity in the United States. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the petitioner contends that the beneficiary was 
employed in an executive capacity at the foreign entity and will be employed in an executive capacity in the 
United States. Counsel submits a brief an:d additional evidence in support of the appeal. 
I. THE LAW 
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 who 
seeks to enter 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. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a fin;n, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien und.er section 
203(b)(1)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
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statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means 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), provides: 
The term "executive capacity" means 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. 
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II. THE ISSUE ON APPEAL 
A. Employment Abroad in an Executive or Managerial Capacity 
The first issue addressed by the director is whether the petitioner established that the beneficiary was 
employed in an executive or managerial capacity for at least one year during the three-year period preceding 
his admission to the United States. 
The petitioner filed the Form I-140 on June 26, 2012. In support of the petition, the petitioner submitted a 
letter describing the beneficiary's position abroad as follows: 
His work experience includes: Sales Manager (5/2003-7 /2005) and General Director (7 /2005 
to 7 /2006) of - -, a fishing company in Russia. Following this, he served as 
the General Director of [the foreign entity] (a fishing company and qualifying affiliate of [the 
petitioner]) between July 2006 and October 2007, including twelve months as the company's 
representative in Tokyo, Japan from September 2006 to September 2007, where he helped to 
establish and implement the Marketing Agreement between [the foreign entity], 
- - --~,and other US agents. Between October 2007 and May 2008, [the beneficiary] 
was on loan from the a Washington fishing company, while 
he coordinated the start-up of [the petitioner]. He has served as the Chief Marketing Officer 
of [the petitioner] since May 2008. 
* * * 
Prior to his assignment to the United States, [the beneficiary] served as the General Director 
of [the foreign entity] from July 2006 to October 2007. As the General Director, [the 
beneficiary] was responsible for: 
• Manage and direct the work of 13 subordinate managers, including exercising hiring, firing 
and evaluation of work performance with concurrence of 
• Oversee daily operations, reporting to the 
growth; 
Chairman on revenues and sales 
• Oversee set-up of affiliate, 
marketing agreement between 
in Japan and direct sales activities pursuant to 
and [the foreign entity]; 
• Research and review regular reports of company financial transactions, and monthly, 
quarterly and annual financial goal management; 
• Direct and participate in acquisition and growth activities to support overall business plan; 
• Research and report on import/export regulations to facilitate planning of company's market 
strategy; and 
• Plan and manage overseas sales through distributors and other sales outlets. 
On August 15, 2012, the director issued a request for additional evidence ("RFE") in which he specifically 
instructed the petitioner to submit a description of the beneficiary's duties abroad, to include what actual 
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specific, day-to-day tasks were involved with the completion of each duty and an estimate of the percentage 
of time the beneficiary dedicated to each specific duty. The director also specifically requested a detailed 
organizational chart for the beneficiary's foreign employer, including the names and detailed descriptions of 
the job duties for the beneficiary's immediate supervisor and subordinate employees. 
In response to the first RFE, counsel for the petitioner submitted a letter listing the beneficiary's duties abroad 
almost identical to the description provided at the time of filing. Counsel for the petitioner described the 
beneficiary's duties at the foreign entity as follows : 
Beneficiary was employed as the General Director of [the foreign entity] from July 2006 to 
October 2007, prior to his current employment with [the petitioner] in the United States. His 
detailed job duties with an approximate percentage of time spent for each duty are as follows: 
Manage and direct work of 15 subordinate managers, professionals and staff , 25% 
including exercising hiring, firing and evaluation of work performance with 
concurrence o1 --
Oversee daily operation, reporting to on revenues and sales 35% -
growth. 
Oversee set-up of affiliate, in Japan, and direct sales activities 10% 
pursuant to marketing agreement between _.. and [the foreign entityl. 
Research and review regular reports of company's financial transactions, and 5% 
monthly, quarterly_ and annual financial goal management. 
Direct and participate in acquisition and growth activities to support overall 10% 
business plan. 
Research and report on import/export regulations to facilitate planning of company's 5% 
market strategy. 
Plan and manage overseas sales through distributors and other sales outlets. 10% 
The petitioner submitted an undated organizational chart for the foreign entity depicting the beneficiary at the 
highest tier of management as general director. The beneficiary directly supervises the "deputy of general 
director for maritime safety," who supervises the "general vice-director of maritime safety ," who supervises 
the technical director. The technical director then supervises the chief engineer, general accountant , chief 
economist, "inspector of personnel department," chief of legal department, communications engineer , and the 
"head of extraction department." The chief engineer supervises an engineer of safety arrangement and 
precaution, and the general accountant supervises a deputy of general accountant, chief accountant, and two 
accountants. 
The petitioner also provided a brief list of job duties for the general director, deputy general director for 
maritime safety, chief engineer, engineer of safety arrangement and precautions, general accountant, deputy 
general accountant, chief accountant, accountant, chief economist, inspector of personnel department , chief of 
legal department , communications engineer, head of extraction department, general vice-director of maritime 
safety , and the technical director. The brief list of job duties for the general director, the beneficiary' s 
position, is identical to the list of job duties submitted at the time of filing the petition. 
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On July 8, 2013, the director issued a second RFE in which he specifically instructed the petitioner to submit 
corporate records to support the claim that the beneficiary's employment from July 2007 to October 2007 was 
in an executive capacity. 
In response to the second RFE, the petitioner submitted an Employment Agreement, dated July 18, 2006, 
between the foreign entity and the beneficiary. The agreement 
states that the foreign entity employed the 
beneficiary as "Director of Marketing for the execution of works in accordance with the job description." The 
agreement again references the job description stating, "the employee agrees to assume the duties, specific in 
job description from July 181h, 2006;" however, the petitioner failed to submit the referenced job description 
with the agreement. The beneficiary's actual duties aligned with this employment agreement remain 
unknown. 
The petitioner also submitted a list of employees at the foreign entity in 2006 and 2007, indicating that each 
of the individuals listed on the organizational chart was employed at that time. The petitioner also submitted 
payroll records from April 2006 to October 2007 with a list of employees during that time and the 
beneficiary's pay stubs from July 2006 to May 2008. 
On November 21, 2013, the director denied the petition concluding, in part, that the petitioner failed to 
establish that the beneficiary was employed in an executive or managerial capacity for at least one year during 
the three-year period preceding his admission to the United States. In denying the petition, the director found 
that the duties presented by the petitioner for the beneficiary's employment abroad were either generalized, or 
did not qualify as executive or managerial. The director observed that the foreign entity's organizational 
structure contained staff to relieve the beneficiary from performing accounting and ship operations and safety 
duties, but as the beneficiary was also director of marketing, it failed to demonstrate that there were other 
marketing and sales staff to relieve the beneficiary from performing the actual day-to-day tasks associ ated 
with the marketing and sales functions of the company. The director further found that, as the beneficiary 
was the foreign entity's representative in Tokyo, Japan from September 2006 to September 2007, to help 
establish and implement marketing agreements, the petitioner failed to demonstrate that the 
staff at relieved the beneficiary from performing the administrative tasks required to organize a 
legal entity and establish an operating presence in a foreign country or implement any marketing strategies or 
agreements, thus this second set of duties while in Japan also does not meet the executive capacity criteria . 
On appeal, counsel for the petitioner asserts that the beneficiary was employed by the foreign entity in an 
executive capacity. Counsel states that the petitioner's response to the first RFE indicates that the beneficiary 
devoted 60% of his time to managing the operations of the foreign entity and 40% of his time to establishing 
nd "creating the marketing apparatus to perform the marketing agreement between [the foreign 
entity] and , and other related activities." Counsel states that the beneficiary does perform some 
operational duties, however the documentation shows that "research and planning" amounts to just 20% of his 
time, including managing sales through distributors and other sales outlets. Counsel further states that the 
beneficiary was general director of the foreign entity during the entire relevant period in 2006-2007, and 
served as the executive with overall responsibility for the operations of the company, which took up 60% of 
his time. During the same period, he also served as marketing director and was located in Japan for 12 
months to establish an affiliate company that would perform the marketing functions for the foreign entity, 
which took up 40% of his time. 
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On appeal, the petitioner submitted a letter restating counsel's assertions and corporate documents relating to 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary was 
employed in an executive or managerial capacity for at least one year during the three-year period preceding 
his admission to the United States. 
When examining the executive or managerial capacity of the beneficiary, the MO will look first to the 
petitioner's description of the job duties. See 8 C.P.R. § 204.50)(5). A detailed job description is crucial, as 
the duties themselves will reveal the true nature of the beneficiary's foreign and proposed employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N .Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The 
AAO will then consider this information in light of other relevant factors, including (but not limited to) job 
descriptions of the beneficiary's subordinate employees, the nature of the business conducted by the entities in 
question, the size of the subordinate staff of the entity in question, and any other facts contributing to a 
comprehensive understanding of the beneficiary's actual role within the foreign entity. 
The petitioner's description of the beneficiary's duties fails to establish that the beneficiary was primarily 
employed in a qualifying executive position. The petitioner provided a very broad and vague list of job duties 
for the beneficiary's position abroad that did not indicate what actual specific day-to-day tasks were involved 
with the completion of each overall duty. When asked to describe the duties in much greater detail, and 
advised not to group several tasks together, the petitioner again submitted the same list of duties and simply 
attached percentages to each of them. The petitioner did not break down the beneficiary's daily duties or 
elaborate on any of the groups of duties listed. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established. See 8 C.P.R. 
§ 103.2(b )(8). The information provided by the petitioner in its response to the director's request for further 
evidence did not clarify or provide more specificity to the original duties of the position, but rather simply 
allocated specific percentages to each grouping of duties. When asked to submit corporate records in support 
of the beneficiary's executive position, the petitioner submitted an employment agreement stating that the 
beneficiary would perform the duties listed in the job description; however, the job description referenced in 
the employment agreement was not submitted. On appeal, counsel and the petitioner claim that the list of job 
duties with percentages indicates that the beneficiary spent 60% of his time devoted to executive duties 
managing the overall operations of the foreign entity, and 40% of his time devoted to actual marketing 
functions and establishing in Japan. However, absent a clear and credible breakdown of the 
time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties 
would be managerial or executive, nor can it deduce whether the beneficiary is primarily performing the 
duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
In the instant matter, the petitioner indicated that the beneficiary spent 12 months in Japan establishing 
to perform the marketing functions of the foreign entity. The petitioner further indicated that 
the beneficiary was not only working on establishing but also continued to carry out his duties 
as general director of the foreign entity while in Japan , thus retaining his position in an executive capacity at 
the foreign entity. However, the lack of specificity for each of the beneficiary's listed duties raises doubts as 
to the actual tasks being carried out by the beneficiary. Although the organizational chart contains various 
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departments and managers, there are no employees listed to carry out any of the marketing and sales functions 
of the foreign entity. The list of job duties and corresponding percentages indicate that the beneficiary only 
devoted 25% of his time to duties related to marketing and sales; however, without detailing the tasks 
specifically associated with those duties, and without having any subordinate staff to assist with any tasks 
related to marketing and sales, it cannot be determined that the beneficiary's time is primarily devoted to 
executive duties. Furthermore, the broad duties determined by the petitioner to qualify as executive capacity, 
such as "oversee daily operation, reporting ... on revenues and sales growth" 35%; "direct and participate in 
acquisition and growth activities to support overall business plan" 10%; "research and review regular reports 
of company's financial transactions ... " 5%; and "manage and direct work of 15 subordinate managers, 
professionals, and staff ... " 25%, do not describe the beneficiary's actual role in the foreign entity with any 
specificity. Reciting the beneficiary's vague 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 
has failed to provide any detail or explanation of the beneficiary's activities in the course of his daily routine. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. !d. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
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 sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Due to the deficiencies outlined above, it cannot be determined that the beneficiary was employed in an 
executive or managerial capacity by a qualifying foreign entity for at least one year during the three-year 
period preceding his admission to the United States. Accordingly, the appeal will be dismissed. 
B. Employment in an Executive or Managerial Capacity in the United States 
The second issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in an executive or managerial capacity in the United States. 
In support of the petition, the petitioner submitted a letter describing the beneficiary's position in the United 
States as follows: 
[The beneficiary's] primary responsibility as the Chief Marketing Officer is to help [the 
petitioner] and the entire : meet the challenges we face in competing in the current 
economy. As the Chief Marketing Officer of [the petitioner], [the beneficiary] is responsible 
for all economic analysis and marketing issues, while also directing the implementation of 
marketing strategies. Reporting to the Chairman, he is responsible for 
researching and developing reports and strategies for domestic and foreign markets for [the 
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petitioner], and all of the companies of the . . and for directing the 
implementation of all marketing strategies. In the absence of the President and CEO, he is 
also responsible for directing the day to day affairs of the company. His job duties are as 
follows: 
• Research, prepare and review regular reports of fisheries stock, company inventory , and 
global market conditions to determine best sources of product and best markets for sale of 
product on a periodic basis (daily, weekly, monthly, quarterly, annually, and longer term); 
• Research, plan and direct implementation of day-to-day marketing operations of the 
company, including its employees, all financial planning for marketing operations, 
procurement and investment of funds; . 
• Research and plan economic and financial forecasts for marketing operations , including 
checking exchange rates between foreign currencies, both current and future markets; 
• Research and prepare periodic marketing analysis and economic forecast reports for Senior 
Management of [the petitioner], [sic]; and 
• Review and implement negotiating strategy for supply, marketing and distribution contracts 
and agreements with distributors in the U.S.A. and abroad, make recommendations with 
respect to pricing, including consideration of competitors pricing strategies. 
The petitioner went on to state that it has hired seven full-time employees to include: l 
and CEO; [the beneficiary], chief marketing officer; 
president 
general manager; 
receptionist. 
The petitioner submitted an undated organizational chart for the U.S. company depicting the beneficiary as 
vice president supervised by -. --- - --- --- -~ ---- r 
-------..., the general manager, who then supervises , the logistics manager. Parallel to the 
beneficiary is the chief financial officer, supervising . the senior accountant, 
who supervises l the receptionist. 
The petitioner provided a document dated May 2012, briefly listing the job duties for the president, vice 
president, chief financial officer, general manager, senior accountant, logistics manager, and receptionist. 
The beneficiary's duties as vice president were _described as follows: 
• Responsible for establishing the company's brand and presence within the marketplace for 
its products and/or services. 
• Plans, develop and enforce policies and objectives for the organization to [ e ]nsure it 
maintains its values and meets established goals. 
• Involved in representing the company and its future potential to a variety of potential and 
existing customers, investors, and others. 
• Establishes the company's product roadmap, given their intimate knowledge of needs, 
wants, and trends within the marketplace. 
• Directs, and manage company's sales, and may even include responsibility for ongoing 
customer support in some instances . 
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The director issued an RFE in which he specifically instructed the petitioner to submit a description of the 
beneficiary's proposed duties in the United States, to include what actual specific, day-to-day tasks are 
involved with the completion of each duty and an estimate of the percentage of time the beneficiary will 
dedicate to each specific duty. The director also specifically requested a detailed organizational chart for the 
U.S. company reflecting its structure at the time of filing the petition, including the names and detailed 
descriptions of the job duties for the beneficiary's immediate supervisor and subordinate employees. 
In response to the first RFE, counsel for the petitioner submitted a letter specifically describing the 
beneficiary's duties in the United States as follows: 
Since May 2008, Beneficiary has been employed by [the petitioner] as the Chief Marketing 
Officer and was also promoted to Vice President in July 2012. He is responsible for all 
economic analysis and marketing issues, while directing the implementation of marketing 
strategies for [the petitioner] and the companies. He also directs the day-to-day 
affairs of [the petitioner] in the absence of the President and CEO. His 
detailed job duties 
with an approximate percentage of time spent for each duty are as follows: 
Research, prepare and review regular reports of fisheries stock, company inventory, 25% 
and global market conditions to determine best sources of product and best markets 
for sale of product on a periodic basis (daily, weekly, monthly, quarterly, annually, 
and longer term as needed). 
Plan and direct implementation of day-to-day marketing operations of the company, 30% 
including its employees, all 'financial planning for marketing operations, 
procurement and investment of funds. 
Research and plan economic and financial forecasts for marketing operations, 10% 
including checking exchange rates between foreign currencies, both current and 
future markets. 
Research and prepare periodic marketing analysis and economic forecast reports for 10% 
Senior Management of [the petitionerl, 
Plan and implement negotiating strategy for supply, marketing distribution contracts 25% 
and agreements with distributors in the U.S.A. and abroad, make recommendations 
with respect to pricing, including consideration of competitions pricing strategies. 
The petitioner submitted the same organizational chart for the U.S. company and brief list of job duties for its 
employees in the United States. Both documents are identical to those previously submitted except that each 
document changes the beneficiary's title from "vice president" to "vice president and chief marketing officer." 
The director issued a second RFE in which he specifically instructed the petitioner to submit its records to 
support the claim that the prospective position will constitute employment in an executive capacity. The 
director also addressed the petitioner's claim that the beneficiary will also perform work for "other 
companies" and instructed the petitioner to submit corporate records from each such company in order to 
establish the amount of time required of the beneficiary in connection with that employment. 
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In response to the second RFE, the petitioner further described its current employee and staffing arrangement 
as follows: 
While [the petitioner] has only 6 employees, these employees are supported by a large group 
of employees of the two affiliates, one in and several hundred employees in 
[the foreign entity], as well as the other 6 companies of the In addition, we are 
supported by the large network of contractors, suppliers, and professionals who provide the 
day to day work of [the petitioner] and its sister companies . . . . · consists of 
three companies which are affiliates by the definition used by the immigration law - three 
companies, [the petitioner- -Japan, and [the 
foreign entity] - Russia, are owned in the same ratio by the same three shareholders: 
. . . [The petitioner] and were 
established to market and trade in the crab and other seafood caught or supplied by [the 
foreign entity] and our other companies which primarily own and operate Russian-flagged 
crab and other fish processing ships, and to purchase provisions and bunker fuel for the fleet, 
as well as spare parts, arrange repair and other support services for the fleet. The 
employs about 500 employees, primarily in the fleets, and enjoys gross annual revenues in 
excess of $50 million. 
In a letter submitted by the petitioner's counsel in response to the second RFE, counsel describes the 
beneficiary's position in the United States as follows: 
... [the beneficiary's] responsibilities are to manage the entire marketing function of [the 
petitioner] ($16 million a year), with the support of , and 
, the Senior Accountant, as well as a host of contractors who provide support 
services to the company, such as import certification and licensing, laboratories for testing 
and safety certification, international shipping, forwarding, storage, import support services, 
customs brokers, financial services, payroll services, printing, translation, media services, 
mail, transport, lawyers and CPAs. . 
. . [The beneficiary] is responsible for ensuring that the 
seafood fetches the best prices on the global markets. . . . He is required to travel frequently 
to visit the suppliers, to negotiate supply contracts, to attend trade shows around the world, 
while managing the operations staff, each of whom is a professional with a college degree. 
The day to day work that is described in the Service's RFE is performed by and 
_ who supervise and direct the staff of the many contractors, agents and service 
providers. 
* * * 
[The beneficiary] is employed by [the petitioner] as a full-time executive -in fact he regularly 
puts in 60-80 hours a week. Even while he serves as a director of other companies, 
he is at all times acting on behalf of [the petitioner] and coordinates with them on behalf of 
[the petitioner] .... Thus any time he spends on behalf of the other companies is incidental 
to his primary duties for [the petitioner], which as noted here require more than full-time (60-
80 hours a week) of his attention. [The beneficiary] manages an essential function of [the 
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petitioner], with the support of two professional staff, and numerous contractors and service 
providers. 
* * * 
[The beneficiary], the Chief Marketing Officer (CMO) assures the filing of all legal and 
regulatory documents and monitors compliance with relevant laws and regulations. He 
provides general oversight of all marketing activities, manages the day-to-day delegation of 
responsibilities, and ensures that operators [sic] are consistent with the policies made by : 
[The beneficiary] contributes to the development of annual goals and objectives. 
He is responsible for ensuring that the company operations flow smoothly and economically, 
and that necessary work is done properly and on time. nd [the beneficiary] share that 
same great knowledge of the fishing business, as a result, [the beneficiary] manages every 
aspect of marketing products to customers. Acting as the primary spokesperson for the 
company, [the beneficiary] frequently travels abroad to communicate with clients and 
operational staff from other companies within the [The beneficiary's] language 
abilities allow him to communicate with all [of the petitioner's] personnel and clients. [The 
beneficiary] communicates closely with _ _____ __ _ ______ regarding the 
operation of transportation of goods and finanbal functions outside of the United States. 
The petitioner submitted copies of pay stubs for all of its employees in the United States for 2012 and 2013. 
The petition was filed on June 26, 2012 and according to the pay stubs, the petitioner employed the following 
individuals at that time: --0 - -- ~-- . -, - · ------ _ ------ - - . , _ . 
and the beneficiary. The very first pay stub for~ · · was issued on April 22, 2013, and, 
although he appears on the very first organizational chart submitted by the petitioner, there were no pay stubs 
submitted for 
The petitioner submitted another list of duties for the beneficiary's position in the U.S. and which is almost 
identical to its response to the first RFE, which included percentages of time for each duty. Although the 
petitioner did not include the percentages in the new list of duties, it did add the following two duties to the 
previously submitted list: 
• Responsible for all economic analysis and marketing issues, while also directing the 
implementation of marketing strategies. 
* * * 
• Provide daily reports regarding the new loads and offloads from our fleet of Russian 
flagged crab and fishing vessels. 
The petitioner also submitted another brief list of job duties for the president and CEO, the chief financial 
officer, (listed as senior accountant in organizational chart), and · (listed as 
logistics manager in organizational chart). The list of job duties for the president and CEO and the chief 
financial officer are greatly elaborated from the previous list. The list of job duties for is 
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Page 13 
identical to the one previously provided except that one duty from the previous list has been removed. The 
list of job duties for ' is almost identical to the previous list; however , one duty has been 
removed from, and two duties have been added to, the current list. 
The petitioner submitted a new, undated organizational chart for the U.S. company depicting the beneficiary 
as chief marketing officer supervised by the president/CEO. The beneficiary appears to be 
linked to the foreign entity, -- - · ·~ " other crab and other seafood suppliers , 
, "global customers ," and "U.S. customers ." The beneficiary directly supervises 
the logistics manager, the senior accountant, and the following services: "marine 
documentation," "brokers/shipping agents ," "brokers/marketing agents," "forwarding agents," 
"importers/distributors," "technical advisors," "fishing boat/gear supplier & brokers," banks/financial 
services ," "lawyers," and "CPAs." It also appears that also supervise 
"banks/financial services," "lawyers," and "CPAs." Parallel to the beneficiary is < the chief 
financial officer, who also directly supervises directly supervises 
. the receptionist, and "lnsperity PEO," the payroll service company. 
The petitioner also provided a list of third-party brokers and agents it uses; however , failed to submit copies 
of any contracts or agreements with those parties to establish that they carry out day-to-day functions of the 
U.S. company. 
In a supplement al response to the July 8, 2013 RFE, the petitioner submitted a letter , dated October 7, 2013, 
specifically describing the beneficiary's duties in the United States as follows: 
[The beneficiary's] duties as Chief Marketing Officer is a full-time job which often requires 
that he work long hours- (60-80 hours a week) and travel extensively. Upon approval of his 
green card, we will ensure that any duties he performs on behalf of related companies will be 
incorporated into his duties with [the petitioner] and compensated through a service 
agreement. Reporting to [the president of the petitioner], [the beneficiary) is responsible for 
researching and developing reports and strategies for domestic and foreign markets for [the 
petitioner] (while considering the situation of . our sister company in Japan , and 
the many suppliers who are all companies of the . ), and for directing the 
implementation of all marketing strategies. He also serves on the Board of Directors of [the 
petitioner]. In my absence, he is also responsible for directing the day to day affairs of [the 
petitioner]. [The beneficiary) is assisted in the performance of his duties by 
the Logistics Manager and the Senior Accountant , 
each of whom is an experienced professional with a college degree. However, the day to day 
work of the company is performed not only by these two professionals, but by a whole host 
of service providers. 
In a separate letter , the petitioner adds the following to the above information: 
. . . a diagram showing the various functions managed by [the beneficiary], as Chief 
Marketing Officer , our product suppliers , and the many companies who provide the day to 
day functional support, under the immediate direction of under 
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NON-PRECEDENT DECISION 
[the beneficiary's] overall direction. These include seafood brokers, agents, distributors, 
customs brokers, forwarders, shippers, storage providers, quality and safety inspection 
laboratories and certifiers, packaging and documentation companies, financial· services, 
CPAs, and lawyers. 
The director denied the petition concluding, in part, that the petitioner failed to establish that the beneficiary 
will be employed in a primarily managerial or executive capacity in the United States. In denying the 
petition, the director found that based on the petitioner's statements and organizational chart, the beneficiary's 
position entails conducting research, planning, preparing reports, and making recommendations, which are 
primarily operational duties. The director observed that the petitioner's organizational chart does not include 
any marketing or sales staff to perform the day-to-day operational duties of the marketing and sales function, 
thus requiring the beneficiary to perform the actual duties required to carry out the function rather than 
managing it. Additionally, the director observed that the beneficiary will also perform duties on behalf of the 
petitioner's related entities within the • (some of whose affiliations to the petitioner have not been 
established). The director found that the evidence indicates that the proposed position at the U.S. company 
will entail significant non-qualifying duties, to include both day-to-day wholesale marketing/sales duties as 
well as work performed on behalf of entities other than the petitioner. The director noted that the record lacks 
corporate records of the foreign entities that document the duties the chief marketing officer will be obligated 
to perform on their behalf, in addition to those performed at the U.S. company and foreign entity. 
On appeal, counsel for the petitioner asserts that the beneficiary will be employed by the petitioner in an 
executive capacity. Counsel states that the beneficiary manages and directs the most important function of 
the company, the marketing function. Counsel states that the beneficiary "directs an internal professional 
staff ... consisting of a logistics manager, and the general manager (currently vacant) and senior accountant." 
Counsel further states that the beneficiary also "directs the work of a network of support staff at 
and [the foreign entity] ... as well as other affiliated companies." Counsel states that the beneficiary also 
"directs the work of his subordinate staff who direct the work of numerous contractors and service providers." 
Counsel states that the evidence shows that the beneficiary spends 55% of his time devoted to managing the 
marketing function of the U.S. company and the remaining 45% of his time collecting the necessary economic 
data needed to implement the marketing plans. Counsel contends that the U.S. company has sufficient 
support staff, affiliates, and independent contractors and service providers who support the marketing and 
financing functions of the petitioner. Counsel further contends that the beneficiary will not perform duties on 
behalf of the affiliated entities, but rather manage staff located at those entities to assist in carrying out the 
day-to-day tasks associated with the beneficiary's marketing function in the United States. 
Upon review, and for the reasons discussed herein, the petitioner has not established that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
Again, when examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.P.R. § 204.50)(5). As discussed above, a detailed job 
description is crucial, as the duties themselves 
will reveal the true nature of the beneficiary's foreign and 
proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. As stated above, the AAO 
considers this information in light of other relevant factors, including (but not limited to) job descriptions of 
the beneficiary's subordinate employees, the nature of the business conducted by the entities in question, the 
(b)(6)
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Page 15 
size of the subordinate staff of the entity in question, and any other facts contributing to a comprehensive 
understanding of the beneficiary's actual role within the petitioning entity. 
The petitioner's description of the beneficiary's duties fails to establish that the beneficiary will be employed 
in a qualifying executive position. The petitioner has not provided sufficient information detailing the 
beneficiary's duties at the U.S. company to demonstrate that these duties qualify him as an executive. At the 
time of filing the petition, the petitioner characterized the beneficiary as an executive and identified his job 
duties as: "responsible for establishing the company's brand and presence within the marketplace for its 
products and/or services"; "plans, develop and enforce policies and objectives for the organization"; "involved 
in representing the company and its future potential to a variety of potential and existing customers, investors, 
and others"; "establishes the company's product roadmap" ; "directs, and manage company's sales, and may 
even include responsibility for ongoing customer support in some instances." Such duties are not indicative 
of a position that is executive or managerial in nature. 
When asked to submit a detailed description of the beneficiary's duties, including the actual specific, day-to­
day tasks involved with the completion of each duty, the petitioner submitted a new list of job duties for the 
beneficiary's position in the U.S. and allocated percentages of time to each. The petitioner provided a broad 
and vague list of job duties that again did not indicate what actual specific day-to-day tasks were involved 
with the completion of each overall duty. The petitioner described the beneficiary's duties as: "research, 
prepare and review regular reports of fisheries stock, company inventory, and global market condition s" 25%; 
"plan and direct implementation of day-to-day marketing operations of the company , including its employees , 
all financial planning for marketing operations, procurement and investment of funds" 30%; "research and 
plan economic and financial forecasts for marketing operations" 10%; " research and prepare periodic 
marketing analysis and economic forecast reports for Senior Management" 10%; and "plan and implement 
negotiating strategy for supply, marketing distribution contracts and agreements with distributor s in the 
U.S.A and abroad, make recommendations with respect to pricing, including consideration of competitions 
pricing strategies" 25%. 
The petitioner did not break down the beneficiary's daily duties or elaborate on any of the groups of duties 
listed. Again, the purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established. See 8 C.F.R. § 103.2(b)(8). The information provided 
by the petitioner in its response to the director's request for further evidence did not clarify or provide more 
specificity to the original duties of the position, but rather provided a new set of job duties loosely related to 
those previously submitted . When responding to a request for evidence, a petitioner cannot offer a new 
position to the beneficiary , or materially change a position's title, its level of authority within the 
organizational hierarchy, or its associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm'r 1978). 
When asked to submit corporate records in support of the beneficiary's executive position, the petitioner 
simply stated that it provided the available documentation, but its companies are relatively small and thus run 
fairly efficiently without a great deal of bureaucracy or documentation. On appeal, counsel and the petitioner 
claim that the list of job duties with percentages indicates that the beneficiary spends 55% of his time devoted 
to executive duties managing the overall marketing operations of the U.S. company, and 45% of his time 
(b)(6)
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Page 16 
devoted to researching and preparing the necessary economic and business analysis required to prepare and 
execute the strategic plan. However, absent a clear and credible breakdown of the time spent by the 
beneficiary performing his duties, the AAO cannot determine what proportion of his duties would be 
managerial or executive , nor can it deduce whether the beneficiary is primarily performing the duties of a 
function manager. See /KEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d at 24. 
Furthermore, the broad duties determined by the petitioner to qualify as executive capacity, such as "plan and 
direct implementation of day-to-day marketing operations of the company, including its employees, all 
financial planning for marketing operations, procurement and investment of funds" 30%; and "plan and 
implement negotiating strategy for supply, marketing distribution contracts and agreements with distributors 
in the U.S.A. and abroad, make recommendations with respect to pricing " 25%, do not describe the 
beneficiary's actual role at the U.S. company with any specificity. Reciting the beneficiary's vague 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 has failed to provide any detail or explanation 
of the beneficiary's activities in the course of his daily routine . The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. !d. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
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 sections 101(a)( 44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
A company's size alone, without taking 
into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. See section 101(a)(44)(C) of 
the Act, 8 U.S.C. § 1101(a)(44)(C). However, in reviewing the relevance of the number of employees a 
petitioner has, federal courts have generally agreed that USCIS "may properly consider an organization's 
small size as one factor in assessing whether its operations are substantial enough to support a manager." 
Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with 
approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 
41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003) . 
Although the AAO does not find that the size of the petitioning entity served in any way as an obstacle to 
establishing eligibility , this factor can and should be considered for the purpose of determining who within 
the organization would be available to perform the necessary non-qualifying such that the beneficiary is 
relieved from having to allocate the primary portion of his time to tasks that are not within a qualifying 
managerial or executive capacity . Neither the petitioner's reasonable needs nor its stage of development can 
be used to justify a favorable finding when the petitioner is unable to establish that the beneficiary would 
spend his time primarily performing tasks within a qualifying capacity. 
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Page 17 
In the instant matter, counsel contends that the beneficiary specifically directs the marketing function of the 
U.S. company. In support of this claim, the petitioner asserts the beneficiary exclusively directs the function 
and does not perform the specific tasks necessary to carry out the function. The petitioner asserts that 
employees at its affiliate companies, along with third-party agents and service providers assist the beneficiary 
in carrying out the day-to-day operational tasks associated with the marketing function of the U.S. company. 
In support of this assertion, the petitioner merely submits a list of service providers and agents without any 
evidence of actual agreements or contracts with those parties. Absent any clear associations with those third­
party agents, by way of service contracts or agreements, the AAO cannot determine that they carry out any of 
the required operational tasks associated with the beneficiary's listed duties. Furthermore, the petitioner failed 
to list any subordinate employees in the U.S. or at its affiliated companies abroad that would relieve the 
beneficiary from performing such day-to-day operational tasks. According to the documentation in the 
record, the foreign entity does not have any marketing or sales staff that could assist the beneficiary with such 
tasks. The petitioner has not submitted any evidence of the existence of employees abroad that would carry 
out these tasks. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California , 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Further, as observed above, the petition was filed on June 26, 2012 and according to the petitioner's records, 
the petitioner employed - - o - -- , ___ ____ _ 
and the beneficiary at that time. The record does not include evidence that the petitioner 
employed when the petition was filed. Accordingly, these individuals 
could not relieve the beneficiary from performing non-qualifying duties when the petition was filed. A 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm'r 1971). 
On appeal, counsel refers to an unpublished decision in which the AAO determined that the beneficiary met 
the requirements of serving in a managerial and executive capacity for L-1 classification even though he was 
the sole employee. Counsel contends that the instant matter is similar in that "the executives of [the 
petitioner], each of whom performs a specific function, is assisted in the performance of their work by a 
concert of professionals, managers, employees of a large group of affiliated companies , unaffiliated 
contractors, service/product suppliers , and various professionals such as lawyers, bankers and CPAs." 
However, counsel has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in the unpublished decision as the petitioner failed to submit evidence of such assistance by other 
individuals. While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and his subordinate employees, the nature of the 
petitioner's business, the employment and remuneration of employees, and any other facts contributing to a 
complete understanding of a beneficiary's actual role in a business. The evidence must substantiate that the 
duties of the beneficiary and his subordinates correspond to their placement in an organization's structural 
hierarchy; artificial tiers of subordinate employees and inflated job titles are not probative and will not 
establish that an organization is sufficiently complex to support an executive or manager position. An 
(b)(6)
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Page 18 
individual whose primary duties are those of a first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
professional. See section 101(a)( 44)(A)(iv) of the Act. 
Here, the petitioner indicates that the beneficiary has two direct subordinates, a logistics manager and a senior 
accountant. The petitioner also claims that employees at its affiliate companies, along with third-party agents 
and service providers, will assist the beneficiary with non-qualifying operational duties. However, due to the 
broad position descriptions and lists of job duties for the beneficiary, the short and vague description of job 
duties provided for the beneficiary's subordinates, and the lack of contracts or service agreements with any 
third-parties or employees abroad, it remains unclear how the subordinates will relieve the beneficiary from 
performing non-qualifying operational duties in marketing and sales. 
Based on the inconsistencies and deficiencies described above, the petitioner has not established that the 
beneficiary will be employed in a qualifying managerial or executive capacity in the United States. 
Accordingly, the appeal will be dismissed. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.