dismissed EB-1C Case: Steel Trading

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 30, 2023 In Re : 28184048 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a wholesale steel trading and exporting business, seeks to permanently employ the 
Beneficiary as its "President & CEO" under the fust preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that the Beneficiary will be employed in the United States in a managerial or 
executive capacity. The matter is now before us on appeal. 8 C .F.R. § 103.3 . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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 )(1 )(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 corning 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) . 
II. ANALYSIS 
The issue to be addressed in this decision is whether the Petitioner provided sufficient evidence 
demonstrating that the Beneficiary would be employed in an executive capacity. 1 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function as the owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. 
The Petitioner must establish that the Beneficiary will be employed in an executive capacity. See 
8 C.F.R. § 204.5(j)(3). Based on the statutory definition of executive capacity, the Petitioner must 
first show that the Beneficiary will perform certain high-level responsibilities. Section 10l(a)(44)(B) 
of the Act. The Petitioner must also prove that the Beneficiary will primarily be engaged in executive 
duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See 
Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
Beyond the Beneficiary's job duties, we examine the company's organizational structure, the duties 
of the Beneficiary's subordinate employees, the presence of other employees to relieve the Beneficiary 
from performing operational duties, the nature of the business, and any other factors that will 
contribute to understanding the 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 
prospective employer's business and staffing levels. 
A. Job Duties 
The petition in this matter was filed in November 2020 and was accompanied by a supporting cover 
letter in which the Petitioner was described as a stainless-steel exporter whose operation involves the 
use of metal service centers and a network of logistics, warehousing, and metal distributors located 
throughout the United States. The Petitioner discussed plans to expand its operation and provided 
information about.__ ________ ____, its U.S.-based subsidiary, including the subsidiary's 
anticipated role in the Petitioner's operations and the subsidiary's projected start in January 2021. The 
Petitioner stated that while it would focus on imports and exports, its subsidiary would focus on 
distribution of stainless steel within the construction, agriculture, and manufacturing industries. 
1 The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. 
2 
In discussing the Beneficiary's role within the U.S. organization, the Petitioner provided two job 
descriptions, including a job duty breakdown listing 17 job duties and their respective time allocations. 
The second job description states that the Beneficiary "exercises the ultimate executive duties" and 
discusses those duties within the context of the statutory definition of executive capacity. Although 
there is some overlap between the two job descriptions, the Petitioner did not explain how they 
correspond with one another and a number of job duties are listed in one job description or the other, 
but not both, thus precluding a clear understanding of the proposed job duties. For instance, of the 17 
duties listed in the job duty breakdown, none mention forecasting data, meeting with potential clients, 
creating and overseeing the execution of marketing plans, contracting for warehousing and logistics, 
or coordinating sales and purchases. 
The Petitioner also provided a business plan containing two additional iterations of the Beneficiary's 
job description. Of those job descriptions lists 15 job duties, which partly overlap with the job 
descriptions discussed above. The other job description in the business plan apportions a percentage 
of time to the following six job duties: 
• 25% to answering phone calls and emails from employees and from prospective and current 
"industry partners." 
• 20% to meeting with prospective steel buyers and sellers. 
• 20% to meeting with staff: individually and collectively. 
• 5% to hiring staff 
• 15% to training staff 
• 15% to traveling to conferences. 
In response to the Director's request for evidence (RFE), the Petitioner provided yet another iteration 
of the Beneficiary's job description, adding a seventh job duty - "motivating sales persons [sic] for 
new business development" - to the above list of six job duties. This new iteration also contains 
reconfigured time allocations for several of the duties, stating that 10% of the Beneficiary's time would 
be allocated to the seventh job duty that was newly added while reducing the time previously allocated 
to answering phone calls and emails from 25% to 20%, and similarly reducing the time allocated to 
attending conferences from 15% to 10%. We further note that the percentage breakdown that was 
comprised of 17 job duties allocated no time to answering phone calls and emails, meeting with 
prospective steel buyers and sellers, or training staff: thus identifying further inconsistencies among 
the various iterations ofjob descriptions. 
In order to demonstrate eligibility for the immigration benefit sought herein, the Petitioner is required 
by regulation to "clearly describe the duties to be performed" by the Beneficiary under an approved 
pet1t10n. 8 C.F.R. § 204.5(i)(5). Here, the Petitioner has provided multiple iterations of the 
Beneficiary's job duties, thereby confusing rather than clarifying what the proposed job duties would 
be. Although on appeal the Petitioner has resubmitted the 17 job duties that were listed in the initial 
supporting statement, the record contains unresolved inconsistencies that the Petitioner created by 
submitting different iterations of job duties to describe the Beneficiary's proposed employment. See 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988) (stating that discrepancies must be resolved 
through the submission of independent, objective evidence). Because the Petitioner has not adequately 
conveyed an understanding of the Beneficiary's proposed job duties, we cannot determine what tasks 
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will comprise the proposed position and thus we cannot conclude that the Beneficiary would be 
employed in an executive capacity performing primarily executive job duties. See section 
10l(a)(44)(B) of the Act (requiring that one "primarily" perform the enumerated executive duties). 
B. Staffing 
Next, we will address the Petitioner's staffing. In support of the petition, the Petitioner provided an 
organizational chart depicting its staffing hierarchy and that of its U.S. subsidiary. Although the 
Petitioner claimed eight employees in the petition form, it provided an organizational chart depicting 
a total of nine employees, including the Beneficiary, who is depicted as head of the petitioning 
organization and its subsidiary, whose operation is shown to be comprise of five positions below the 
Beneficiary. The organizational chart shows that the Petitioner's own staff at the time of filing 
included a trade manager who was overseeing a quality manager, a controller/CFO who was 
overseeing an accounts assistant, and an office manager who was overseeing a logistics coordinator 
and an "export documentation" position, the latter of whom is depicted as overseeing an office 
assistant. Although the Petitioner stated that it hired an employee to fill the vice president position at 
the U.S. subsidiary, it is unclear how the U.S. subsidiary would have impacted the Petitioner's 
operations at the time of filing given that the subsidiary was not scheduled to commence operations 
until January 2021. We note that only those facts already in existence as of November 2020 will be 
considered in determining the Petitioner's eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l) 
(mandating that all eligibility requirements for the immigration benefit must have been satisfied from 
the time of the filing and continuing through adjudication). 
Further, the Petitioner provided employee paystubs from August, September, and October 2020 
showing that seven paystubs were issued in August and eight were issued in September and October, 
respectively, even though the Petitioner's organizational chart listed nine positions, including the 
Beneficiary. Although the initial supporting statement continued to list I bs its "export 
documentation" employee, a paystub was not issued to this individual after August 2020, thus 
indicating that this position was either vacant or eliminated by November 2020, when this petition was 
filed. In response to the RFE, the Petitioner was given an opportunity to supplement the record with 
additional wage evidence, such as a payroll summary, Form W-2, wage and tax statements, or other 
wage evidence pertaining to the Beneficiary's claimed subordinates. Although the response included 
an updated organizational chart showing that it had undergone staffing changes since filing the instant 
petition, the Petitioner did not provide a payroll summary or other wage documents establishing 
precisely whom it employed and which positions were filled at the time of filing. 
On appeal, the Petitioner maintains the claim that it employed I I in the "export 
documentation" position at the time of filing and continued to do so until July 2021, when that 
individual's employment was terminated. However, as indicated above, the submitted paystubs do 
not show that the Petitioner paid wages to I I after August 2020 and no evidence was 
provided to substantiate the Petitioner's claim that it employed! lor that the "export 
documentation" position was still part of the Petitioner's staffing structure at the time of filing. See 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (establishing that supporting evidence is 
required to demonstrate that a claim is "probably true"). If the Petitioner did not employ an "export 
documentation" employee, as the record indicates, it is unclear how the operational duties that were 
previously assigned to that position were redistributed among the Petitioner's remaining employees 
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and whether such redistribution impacted the Beneficiary's proposed position at the time of filing. 
Although the appeal brief includes a list of the Petitioner's claimed employees and their respective job 
duties, the list indicates that several employees were hired after November 2020. The updated list 
therefore appears to reflect the Petitioner's staffing structure at the time of the appeal rather than at the 
time this petition was filed. 
While it is reasonable for an organization to undergo staffing and/or organizational changes after filing 
a petition, the Petitioner must establish that the petition merits approval based on the operation and 
staffing structure it had in place at the time of filing. 8 C.F.R. § 103.2(b)(l). Thus, despite any 
organizational developments or operational progress the Petitioner may have experienced since filing 
this petition, evidence of such developments is of limited probative value as it does not demonstrate 
that the petition merited approval at the time offiling. Id. 
Further, the fact that a beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as multinational executive who would be employed in an executive 
capacity within the meaning of section 10l(a)(44)(B) of the Act. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" executive in nature. Section 
10l(A)(44)(B) of the Act. While a beneficiary may exercise discretion over a company's day-to-day 
operations and possess the requisite level of authority with respect to discretionary decision-making, 
their actual duties may not be primarily executive in nature. Here, the Petitioner did not provide 
sufficient evidence establishing whom it employed at the time of filing. As such, we cannot conclude 
that at that critical time the Petitioner was adequately staffed and thereby able to relieve the Beneficiary 
from having to allocate his time primarily to non-executive job duties. 
III. CONCLUSION 
In light of the deficiencies discussed above regarding the Beneficiary's job description and the 
Petitioner's staffing, we conclude that the Petitioner did not establish that it was prepared to employ 
the Beneficiary in an executive capacity at the time this petition was filed. 
ORDER: The appeal is dismissed. 
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