dismissed EB-1C Case: Steel Trading

U.S. Citizenship 
and Immigration 
Services 
In Re : 7721879 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 27, 2020 
Form 1-140, Petition for 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). 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 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. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Section 291 of the Act; Matter ofChawathe, 25 l&N Dec. 369,375 (AAO 2010). The Administrative 
Appeals Office (AAO) reviews the issue in this matter de nova. See Matter of Christo 's Inc., 26 I&N 
Dec . 537, 537 n.2 (AAO 2015) . Upon de nova review , we agree with the Director that the Petitioner 
did not establish that it would employ the Beneficiary in a managerial or executive capacity. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity , and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R . § 204.5(j)(3) . 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAP A CITY 
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 foreign 
employer's business and staffing levels. 
A Relevant Facts 
In a supporting cover letter, the Petitioner stated that the Beneficiary "directs all operations," "has final 
decision-making authority" over sales, marketing, business development plans, and personnel matters, 
and is "subject only to direction from the [foreign] parent company's Board of Directors." The Petitioner 
focused on the Beneficiary's "networking skills" and his continued effort "to establish new relationships" 
with companies that process stainless steel and provide logistics, warehousing, and custom forwarding 
services. The Petitioner also claimed that the Beneficiary "recruited an experienced team of specialists 
in the area of sales [ and] purchasing, export and import documentation and customer services," has and 
would continue to train staff on inspection requirements, coordinated trading with U.S. suppliers, and 
focused on maintaining relationships with existing clients as well as establishing relationships with new 
clients while delegating "non-managerial" duties to his two support employees. 
1 The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. 
2 
In addition, the Petitioner provided a job duty breakdown stating that the Beneficiary will allocate his 
time in the following proportions: 
• 20% to collaborating with the foreign parent entity to coordinate sales and purchasing in the 
United States and set a strategy for expanding the U.S. business; 
• 20% to attending steel industry conferences to connect with managers and executives of potential 
clients; 
• 20% to devising and overseeing the implementation of marketing plans, selecting service 
providers, and coordinating sales and purchasing activities with warehouse, logistics, and customs 
clearing service providers; 
• 15% to setting strategies for brand promotion; 
• 5% to monitoring the Petitioner's banking activities and compliance with applicable trade 
regulations; 
• 5% to establishing and overseeing programs to train and appraise a "sales force"; 
• 10% to reviewing budgets and forecasting revenues; and 
• 5% to holding staff meetings. 
The Petitioner also stated that it seeks to expand its three-person staff, which it claimed was comprised of 
the Beneficiary, an administrative assistant, and a controller at the time of hiring. It stated that it seeks to 
further hire a "steel specialist," an office manager, and an accountant in the future. The Petitioner 
provided an organizational chart that contains a somewhat different illustration of its staffing. Most 
notably, the chart names only two employees - the Beneficiary and an administrative assistant - and 
indicates that the remaining six positions - including that of controller - are "prospective" hires. The 
chart shows the Beneficiary directly overseeing a controller and three managers, who would oversee 
trade, logistics, and administrative matters. 
The Director subsequently issued a request for evidence (RFE) to which the Petitioner responded with 
another job description with hourly increments describing how the Beneficiary would allocate his time 
among his assigned job duties. The job description indicates that the Beneficiary's work week would 
consist of 41-46 hours and that"[ u ]ntil [the Petitioner is] able to hire additional employees" with "proven 
ability" to negotiate rates for buying and selling steel and steel products, the Beneficiary would be 
"intimately involved" in this process, which would consume 20-22 hours of his time on a weekly basis. 
The Petitioner also stated that the Beneficiary would allocate his time to other operational tasks, including 
spending four to six hours weekly attending conferences "to network" and "to grow" the customer base, 
four hours weekly overseeing the transportation of products from "various points in the U. S [. ]" to the 
Petitioner's U.S. warehouses, four hours per week training employees to inspect and examine steel, and 
five to six hours weekly on "intermittent follow-up with employees" regarding sales targets and 
addressing deficiencies. The Petitioner added that the Beneficiary "actively engaged in all aspects of the 
employment process," including hiring and firing staff: negotiating salaries, and maintaining "ultimate 
decision-making authority for staffing levels." The Petitioner also provided a list of conferences that the 
Beneficiary attended and printouts of email communications showing the Beneficiary as the point of 
contact for the Petitioner's various purchase and sales activities. 
The Petitioner did not further discuss its staffing structure at the time of filing, which took place in March 
2017; rather, it provided an updated organizational chart reflecting its staffing structure as of June 2018, 
3 
when the RFE response written. The Petitioner also provided paystubs and 2017 Form W-2s for the 
Beneficiary, who was compensated $145,342, and for five other employees, only one of whom - the 
Petitioner's controller/CFO - appears to have been employed at the time the petition was filed. The 
remaining employees were hired after the March 2017 filing date, and one other employee's offer of 
employment letter and pay stub shows a hiring date in 2018. 
In denying the petition, the Director found that the Beneficiary would not primarily direct the management 
of the organization or oversee subordinates who would relieve the Beneficiary from having to perform 
non-qualifying job duties. 
On appeal, the Petitioner disputes the Director's decision, contending that the Director did not correctly 
apply the statutory definition of executive capacity and that the non-executive job duties do not 
comprise the majority of the Beneficiary's time. 
B. Analysis 
We disagree with the Petitioner's assertions. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" executive in nature when claiming that a beneficiary's past or 
proposed employment is in an executive capacity. Section 101(A)(44)(B) of the Act. Here, the job 
descriptions the Petitioner provided indicate that the Beneficiary would allocate at least 3 7 of a 
possible 46 working hours performing operational, and thus non-executive, job duties, including 
attending conferences to grow the Petitioner's customer base, continuing to engage in rate negotiation 
for steel products until the Petitioner is able to hire employees with "proven ability to handle these 
transactions," overseeing the transportation of steel products to the Petitioner's U.S. warehouses, 
training its employees to examine steel, and "intermittent follow-up with employees to achieve sales 
targets" and resolve operational deficiencies. Although the Petitioner claimed that the Beneficiary's 
visits with vendors involves meeting with top executives at the vendor companies, this job duty, even 
if it were deemed executive, would consume only four hours of the Beneficiary's time and thus would 
not be deemed an activity to which the Beneficiary would allocate the primary portion of his time. 
Further, the fact that the Beneficiary occupy a top placement within the Petitioner's organizational 
hierarchy and serve as the manager or director of the petitioning entity does not necessarily establish 
that the Beneficiary would be employed in an executive capacity within the meaning of section 
101(a)(44)(B) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" executive in nature. Id. Thus, while the Beneficiary may be "actively 
managing" the business and while he may possess the requisite level of authority over the company's 
personnel, growth, vendors, and practices and procedures, his discretionary decision-making over 
these business matters is not sufficient to establish that his actual duties would be primarily executive 
in nature. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in an executive capacity. See, e.g., id. 
(requiring that one "primarily" perform the enumerated managerial or executive duties); Matter of 
Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988). 
Here, the Petitioner admits that the Beneficiary actively engaged in negotiating rates because it lacked 
employees with "proven ability to handle these transactions" at the time this petition was filed. This 
operational activity alone would comprise approximately 50% of the Beneficiary's time, which would 
4 
be spent performing other non-executive tasks, as previously indicated. Further, despite claiming that 
the Beneficiary would train employees to examine steel and "follow-up with employees" regarding 
various sales and operational concerns, the Petitioner did not establish that it had employees for the 
Beneficiary to train or oversee at the time this petition was filed. According to the Petitioner's 
originally submitted organizational chart, the Beneficiary and an administrative assistant were its only 
two existing employees; the remainder of the positions listed in the chart were deemed "prospective" 
hires, thus indicating that most positions were still vacant at the time of filing. Although these staffing 
deficiencies would explain the Petitioner's need to have the Beneficiary carry out the various operational 
tasks to support the needs of its operation, the Petitioner must establish that all eligibility requirements 
for the immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). 
On appeal, the Petitioner submits "the most recent version" of its business plan pointing to the 
Beneficiary's contribution to the company's increased revenue and acquisition of new warehouses, 
claiming that these advances will result in the hiring of more employees. The Petitioner also makes 
references to its current staffing structure, which is more developed than the staffing structure it had 
at the time this petition was filed. As noted earlier, the Petitioner's updated staffing for the purpose 
of determining its eligibility at the time this petition was filed. Id. Although the Petitioner now claims 
that it relies on its parent company "for daily office work," it does not state precisely which tasks 
comprise "daily office work," nor does it detail its claimed use of the foreign entity's employees to 
supplement its staffing deficiencies. Moreover, the Petitioner does not explain why it did not raise 
this claim in its RFE response, but rather waited until the appeal process to offer this information. 
When, as here, the record shows that a petitioner was put on notice of an evidentiary deficiency and 
was given an opportunity to address that deficiency, we will not accept evidence regarding that 
deficiency when offered for the first time on appeal. See, e.g., Matter of Soriano, 19 I&N Dec. 764 
(BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
Lastly, the Petitioner states that although some of the Beneficiary's job duties "fall outside of the scope 
of the executive capacity definition," such job duties do not comprise the majority of the Beneficiary's 
proposed position. We disagree and point to the job duty breakdown delineated above, where the 
Petitioner allocated hourly time increments which show that the primary portion of the Beneficiary's 
time would be assigned to job duties that are operational, rather than executive, in nature. Despite the 
Beneficiary's critical role to the Petitioner's business expansion, we cannot overlook the Petitioner's 
lack of support personnel to relieve the Beneficiary from having to take an active role in performing 
primarily non-executive functions in order to expand its client base and achieve greater revenues. 
In light of the deficiencies discussed above, we conclude that the Petitioner did not establish that the 
Beneficiary will be employed in an executive capacity and therefore we cannot approve this petition. 
ORDER: The appeal is dismissed. 
5