dismissed EB-1C Case: Security Products

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-D-A-G- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 3, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , which distributes gates, doors, and related security products manufactured by its 
foreign parent company, seeks to permanently employ the Beneficiary as its general manager under 
the first preference immigrant classification for multinational executives or managers. Immigration 
and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification 
allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work 
in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition , concluding that the record did not 
establish, as required , that the Petitioner will employ the Beneficiary in the United States m a 
managerial or executive capacity . 
On appeal, the Petitioner submits additional evidence and asserts that the denial decision contains 
several factual errors. 
Upon de nova 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 I-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). 
Matter of A-D-A-G-LLC 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner does not claim that the Beneficiary will be employed 
in an executive capacity. Therefore, we restrict our analysis to whether the Beneficiary will be 
employed in a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 
(9th Cir. 2006); Champion World, 940 F.2d 1533. 
When examining the claimed managerial capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 204.5(i)(5). Beyond the required description of the 
job duties, we examine the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
The Petitioner stated that the Beneficiary divides her time evenly between four areas of responsibility: 
• Develops strategic plan by studying technological and financial opportunities; 
presenting assumptions; recommending objectives. 
• Accomplishes subsidiary objectives by establishing plans, budgets, and results 
measurements; allocating resources; reviewing progress; making mid-course 
corrections. 
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Matter of A-D-A-G-LLC 
• Coordinates efforts by establishing procurement, production, marketing, field, and 
technical services policies and practices; and coordinating actions with corporate 
staff. 
• Builds company image by collaborating with customers, government, community 
organizations, and employees; and enforcing ethical business practices. 
The above description is vague and general, more resembling a template than a specific accounting of 
duties specific to the Beneficiary's job. For example, the Petitioner did not provide examples of the 
Beneficiary "collaborating with customers, government, [and] community organizations," or show 
how the Beneficiary spends 10 hours per week on such activities. 
The Director requested a more detailed job description, stating that the first version lacked "specific 
daily tasks to convey what the beneficiary will actually be doing." In response, the Petitioner 
submitted the following table of duties and the percentage of time devoted to each: 
Tasks Time 
Review commercial statements, automatic doors and gates services reports, and other 10% 
performance data to measure productivity and goal achievement and to determine areas 
needing cost reduction and program improvement, all prepared by the Operational Manager 
Manage staff: by hiring 9 employees, such as Operational Manager, Marketing Manager, 30% 
Warehouse Specialist, Administrative Assistant, Technical Support Representative 
and 3 Sales Representatives, and oversee the preparation of work schedules, assign 
specific duties to the employees, and personnel process 
Identify business opportunities with the Operational Manager 5% 
Direct and coordinate organization's financial and budget activities to fond operations, 20% 
maximize investments, and increase efficiency 
Acquisition of new clients and business relationships 10% 
Oversee activities of her subordinates and matters directly relate[ d] to providing the sales of 10% 
the company's products 
Monitor business to ensure that they efficiently and effectively provide the sale services 10% 
while staying within budgetary limits set for the Financial Manager 
Oversee preparation of annual budget made by the Financial Manager 5% 
The second version of the Beneficiary's job description is not simply a more detailed expansion of the 
first version. Rather, the two job descriptions bear little resemblance to one another. For instance, the 
first list did not mention subordinate personnel at all, but the second version showed staff management 
as the greatest demand on the Beneficiary's time. 
The Director denied the petition, stating that the Petitioner had not provided enough information about 
the Beneficiary's duties. On appeal, the Petitioner states: "the Beneficiary holds an important role in 
the company . . . . [T]he Beneficiary is the key person in the company structure ... [ and] has control 
and authority over the subordinate activities." 
The issue in this case is not the degree of the Beneficiary's discretionary authority over the petitioning 
company. Rather, the issue is whether the Beneficiary's duties are primarily managerial as the law 
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Matter of A-D-A-G-LLC 
requires. 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. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F.2d41 (2d. Cir. 1990). 
On appeal, the Petitioner submits a third job description for the Beneficiary. Like the second version, 
the third version does not simply expand upon the original description. Some of the elements are 
vague and general, such as "[p ]olicy development and documentation" and "[p ]rovide vision for 
overall financial health of the company." Other elements are newly claimed, such as the assertion that 
the Beneficiary and the operations manager will "write discussion papers, analyze documents and 
proposals as needed to assist the organization in determining and meeting its long and short-term 
goals." It is not evident what "discussion papers" the Petitioner's business entails, and the Petitioner 
does not elaborate. 
The Petitioner's submission of vague and changing job descriptions for the Beneficiary cannot suffice 
to meet the Petitioner's burden of proof. The Petitioner has not established that the Beneficiary's 
duties are, and will be, primarily managerial. 
B. Staffing 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act. 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." Section 101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 204.5(j)(4)(i). 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. 8 C.F.R. § 204.5(j)(2). 
The initial filing of the petition included an organizational chart with the following information: 
General Manager [the Beneficiary] 
Operations Manager Financial Manager 
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3 Sales Representatives Warehouse Specialist Administrative Assistant 
The Petitioner submitted job descriptions for the subordinate employees. The descriptions for the 
Beneficiary's two immediate subordinates read as follows: 
Operations Manager 
Required 3 years of experience 
• Locate, select, and procure merchandise for resale, representing management 
in purchase negotiations; 10 hours 
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Matter of A-D-A-G-LLC 
• Coordinate the production, pricing, sales, and distribution of the company's 
products; 10 hours 
• Oversee the operation and profitability of the company ensuring rapid response 
and high client satisfaction levels through the management of company 
operations and resources, in accordance with the direction of the General 
Manager[;] 20 hours 
Financial Manager 
Required 2 years of experience 
• Manage the preparation of the company's budget; 20 hours 
• Report to management on variances from the established budget, and the 
reasons for those variances; 10 hours 
• Assist management in the formulation of the company's overall strategic 
direction; 10 hours 
As with the Beneficiary's own job description, the above job descriptions are vague and generic and 
raise significant questions. The Petitioner has not shown, for example, how managing the preparation 
of the budget can occupy half of the financial manager's time. Furthermore, the phrase "[ m ]anage the 
preparation of the budget" implies that the financial manager delegates the actual preparation to a 
subordinate, but the financial manager's only claimed subordinate is an administrative assistant, whose 
listed duties do not include budget preparation. The Petitioner claimed that the operations manager 
coordinates production, but the Petitioner has no production facilities and no employees engaged in 
production. Also, statements such as "[ o ]versee the operation and profitability of the company" offer 
little information about the employees' actual, specific duties. 
The Director requested additional information, because the initial job descriptions lacked detail. In 
response, the Petitioner submitted an updated organizational chart, adding a marketing manager who 
reports directly to the Beneficiary and a technical support representative who reports to the operations 
manager. The marketing manager's job description reads as follows: 
• Responsible for creating and implementing marketing strategy plans, working 
closely with sales department to locate and establish customer/distributor base for 
full line of [ the Petitioner's] Products in the USA. 
• Develop and implement marketing budget and plans to penetrate new markets, 
increase sales and ensure adequate coverage for existing territory. 
• Ensure that distributors understand the [Petitioner's] value proposition. 
The job description for the technical support representative included the following duties: 
• Answer calls for technical questions, troubleshoots customers issues filtering them 
to technical support and reporting to operations and general managers as necessary. 
• Trained to be knowledgeable with [the Petitioner's] products and how to repair all 
the equipment. 
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Matter of A-D-A-G-LLC 
The Petitioner did not explain how the technical support representative would refer issues "to technical 
support," when the company has no other technical support staff The Petitioner did not explain who 
provided the above services at the time of filing, before it hired the marketing manager and technical 
support representative. 
In the denial notice, the Director noted that the Petitioner had added new positions and appeared to 
have changed the requirements for the financial manager position. The Director found that the 
operations manager apparently has significant non-managerial responsibilities. The Director also 
concluded that the Beneficiary does not appear to supervise managerial, supervisory, or professional 
employees. Instead, the Beneficiary appears to have the personnel responsibilities of a first-line 
supervisor, such as assigning tasks to individual workers. The Director also noted apparent 
discrepancies in the subordinate employees' compensation. 
On appeal, the Petitioner demonstrates that the apparent discrepancies resulted from personnel changes 
mid-year, resulting in annual salary totals that seemed to reflect lower rates of pay. Even setting these 
issues aside, however, the Petitioner has not shown that the personnel structure supported a managerial 
position at the time of filing. 
To determine whether the Beneficiary manages professional employees, we must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. 1 Initially, the Beneficiary did not claim that any of the subordinate positions requires such 
a degree. The Petitioner's revised employee list named a new financial manager, with the legend 
"Bachelor's Degree in Accounting." At the time, the Petitioner did not specify whether this degree is 
a minimum requirement for the position, or simply a statement of the academic credentials of the 
person holding the position. 
On appeal, the Petitioner states that it raised the minimum requirements for the financial manager 
position after it became apparent that the position demanded "an employee with better qualifications." 
Nevertheless, this change, along with the hiring of the marketing manager and technical support 
representative, occurred after the filing of the petition. A petitioner must meet all eligibility 
requirements at the time of filing. See 8 C.F.R. § 103 .2(b )(1 ). 
The Petitioner asserts that, at the time of filing, it was already planning to hire a marketing manager. 
Nevertheless, the position was unstaffed at the time of filing, and the Petitioner does not claim to have 
employed anyone previously in that capacity. Therefore, at the time of filing, the duties ascribed to 
that position must have rested elsewhere. 
The Petitioner submits new job descriptions for its employees. These descriptions reflect post-filing 
changes to the company's structure. At times, these descriptions are very general, with line items such 
as "[c]ontributes to team efforts" and "[f]ollow standard processes and procedures." 
1 Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation"). Section 101 ( a)(32) of the Act 
states that "[t]he term profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons. 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
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Matter of A-D-A-G-LLC 
Also, the descriptions are not entirely consistent. The Beneficiary's new job description, for instance, 
refers to an "annual audit performed by the Financial Manager," but the financial manager's own new 
job description does not refer to annual audits at all. As another example, the new job description for 
the administrative assistant bears little resemblance to the first version. Whereas the original job 
description focused on correspondence, scheduling, and customer contact, the new version on appeal 
heavily emphasizes financial responsibilities. The Beneficiary's own new job description lists several 
tasks that the Beneficiary is said to perform "along with [the] Operations Manager," but the operations 
manager's new job description does not include those tasks. 
The Petitioner has shown that it employs a number of employees subordinate to the Beneficiary, but 
the sometimes vague and conflicting information in the record does not establish that these employees 
relieve the Beneficiary from primarily performing non-managerial tasks. 
On appeal, the Petitioner claims that the Beneficiary qualifies as a function manager. The term 
"function manager" applies generally when a beneficiary's managerial capacity principally derives 
not from supervising or controlling a subordinate staff, but instead from primarily managing an 
"essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. If a petitioner 
claims that a beneficiary will manage an essential function, it must clearly describe the duties to be 
performed in managing the essential function. In addition, the petitioner must demonstrate that: 
(1) the function is a clearly defined activity; (2) the function is "essential," i.e., core to 
the organization; (3) the beneficiary will primarily manage, as opposed to perform, the 
function; ( 4) the beneficiary will act at a senior level within the organizational hierarchy 
or with respect to the function managed; and (5) the beneficiary will exercise discretion 
over the function's day-to-day operations. 
Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the Petitioner has 
not articulated a specific function that the Beneficiary will manage. The general assertion that the 
Beneficiary manages the entire U.S. company does not establish that the Beneficiary's responsibilities 
are primarily managerial as required by element (3) above. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it will employ the Beneficiary in a managerial or executive capacity in the United States. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-D-A-G- LLC, ID# 5600008 (AAO Sept. 3, 2019) 
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