dismissed EB-1C Case: Telecommunications And Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 17775049 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 08, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a company stating that it is engaged in the telecommunications and information 
technology industry, seeks to permanently employ the Beneficiary as its president in the United States 
under the first preference immigrant classification for multinational executives or managers. 
Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S.C. § 1153(b )(1 )(C). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did establish, 
as required, that the Beneficiary was employed in a managerial or executive capacity abroad prior to 
his entry into the United States as a nonimmigrant . The matter is now before us on appeal. 
On appeal, the Petitioner states that the Director erred in concluding that the Beneficiary's employment 
with another foreign employer was a discrepancy calling into question his asserted employment abroad 
in a qualifying executive-level capacity. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. 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 )(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 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. FOREIGN EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary was employed 
in a managerial or executive capacity abroad. The Petitioner does not claim that the Beneficiary was 
employed in a managerial capacity abroad. Therefore, we restrict our analysis to whether the 
Beneficiary was employed in an executive capacity. 
The statute defines an "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 10l(a)(44)(B) of the Act. 
The regulation at 8 C.F.R. § 204.5(i)(5) requires the Petitioner to submit a statement that clearly 
describes the duties performed by the Beneficiary abroad. 
A. Duties 
To be eligible immigrant classification as a multinational executive, the Petitioner must show that the 
Beneficiary was employed abroad in a position involving the high-level responsibilities set forth in 
the statutory definition at section 101(a)(44)(B)(i)-(iv) of the Act. If the record does not establish that 
the foreign position meets all four of these elements, we cannot conclude that it was a qualifying 
executive position. 
If the Petitioner establishes that the foreign position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary was primarily engaged in executive duties 
abroad, as opposed to ordinary operational activities alongside the foreign employer's other 
employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether 
a given beneficiary's foreign duties were primarily executive, we consider the description of the 
foreign job duties, the foreign employer's organizational structure, the duties of a beneficiary's 
subordinates employees abroad, the presence of other employees to relieve the beneficiary from 
performing operational duties, the nature of the foreign business, and any other factors that will 
contribute to understanding a beneficiary's actual duties and role in a business abroad. 
The Petitioner stated that the foreign employer was an "industry leader in design and construction of 
transmission and distribution infrastructure for the telecommunications sector." The Petitioner 
indicated that the Beneficiary was employed abroad as the foreign employer's president and chief 
executive officer beginning in January 1995 until September 2011, when he entered the United States 
as an L-lA intracompany transferee. The Petitioner asserted that the Beneficiary oversaw a staff 
composed of"several managerial and professional positions," including "engineers, project managers, 
architects, analysts, and department managers." The Petitioner listed the following duties for the 
Beneficiary abroad: 
• Preside at annual meeting and executive board meetings. Meets with executive 
staff and accounting firm once per month. Responsible for scheduling the meeting 
2 
and preside over board meeting. Among other duties. He spent about 10% of the 
time on this duty; 
• Serve as spokesperson for the company. This includes negotiating and entering 
into agreements with client. Negotiate contracts on behalf of [the foreign 
employer]. He has a wide latitude in contracts negotiation. Among other duties. -
15% 
• Formulates sales policies. Works with the Operations Director and Marketing and 
Sales Manager to formulate company's sales/projects policies, including setting 
prices. -15% 
• Review project/investment proposals and determine methods and procedures for 
accomplishment of the projects, including staffing requirements and allotment for 
funds to various phases of projects. Among other duties. -30% 
• Plan and develop labor and public relations policies designed to improve the 
company's image and relations with customers, suppliers, employees, and the 
public. -10% 
• Review activity reports and financial statements to determine progress and status 
in attaining objectives. Meets with accounting firm to review activity reports and 
financial statements. -10% 
• Supervise executive staff activities. -10% 
• He has the authority to hire, dismiss and recommend the appropriate personnel 
actions. 
• Review evaluation reports from managers regarding project progress and personnel 
assessment. 
In the request for evidence (RFE), the Director requested that the Petitioner submit documentary 
evidence to demonstrate the Beneficiary's performance of qualifying executive-level duties abroad, 
including an explanation of his specific daily tasks. In response, the Petitioner provided a weekly 
routine for the Beneficiary indicating that he was tasked with "following up with all area managers," 
and reviewing and approving "budgets and administrative expenses," "project budgets and expenses," 
and "corporate budgets." It further stated that the Beneficiary was weekly responsible for "relationship 
building with clients," approving "payments to contractors involved in projects," reviewing contracts 
with suppliers, as well as establishing "general business strategies," "tactics to achieve strategies," and 
"global sales, operational and administrative objectives." 
The Beneficiary's foreign duty description does not sufficiently demonstrate that he primarily devoted 
his time to qualifying executive-level duties abroad. Despite asserting that the Beneficiary acted in an 
executive capacity abroad from 1995 until his entry into the United States as a nonimmigrant in 2011, 
there is little detail and no supporting documentation to substantiate his performance of executive­
level tasks abroad. The Beneficiary's asserted foreign duties are generic and could apply to any 
executive acting in any company or industry. 
For example, the Petitioner did not detail or document the contracts the Beneficiary negotiated on 
behalf of the foreign employer, the sales or project policies he formulated, project methods and 
procedures he implemented, labor or public relations policies he put in place, or "customers and 
suppliers" he worked with. Likewise, the Beneficiary's weekly routine submitted in response to the 
RFE added little additional probative value in demonstrating the Beneficiary's position abroad, such 
3 
as the budgets and expenses he regularly reviewed and approved, the clients he built relationships 
with, contractors he managed, or "general business strategies," and "operational and administrative 
objectives" he implemented. Again, the Beneficiary's asserted weekly routine as an executive abroad 
includes no credible details and could apply to any executive acting in any company in any industry. 
The Petitioner did not credibly explain the Beneficiary's duties in the context of the foreign employer's 
asserted telecommunications and information technology business. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive in nature, otherwise meeting the 
definitions would simply be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Although we do not expect the Petitioner to detail and document all the Beneficiary's executive-level 
tasks abroad, it is reasonable to expect it to submit sufficient detail and supporting documentation to 
substantiate his actual qualifying tasks abroad. For instance, the Petitioner provided documentation 
related to the foreign employer's operations, but none of it dates to the time of the Beneficiary's foreign 
employment or substantiates his performance of duties during his claimed qualifying employment with 
the foreign employer. 
The fact that the Beneficiary managed or directed a portion of the foreign business does not necessarily 
establish eligibility for classification as a multinational executive. By statute, eligibility for this 
classification requires that the duties of a foreign position be "primarily" executive in nature. Sections 
10l(A)(44)(B) of the Act. Even though the Beneficiary may have exercised discretion over some of 
the foreign employer's day-to-day operations and possessed some authority with respect to 
discretionary decision-making, the position descriptions alone are insufficient to establish that his 
foreign position was primarily executive in nature. 
B. Staffing and Operations 
If staffing levels are used as a factor in determining whether an individual was acting in an executive 
capacity, the reasonable needs of the foreign organization are taken into account in light of the overall 
purpose and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
As discussed, the Petitioner asserts that the Beneficiary was employed in an executive capacity abroad 
for over 15 years. The statutory definition of the term "executive capacity" focuses on a person's 
elevated position. Under the statute, a beneficiary must have had 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 "direct[ed] 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 was managed and demonstrate that the beneficiary 
primarily focused 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[ ed]" the organization, major component, or function as the owner or sole 
managerial employee. A beneficiary must have also exercised "wide latitude in discretionary decision 
making" and received only "general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization." Id. 
4 
In support of the petition, filed in June 2018, the Petitioner stated that "as of today, the [foreign 
employer] maintains a staff of thirty-four (34) employees" and it also provided an untranslated 
organizational chart, with the Beneficiary at its head. Later in response to the RFE, the Petitioner 
submitted another undated foreign organizational chart listing just over 20 employees, and farther 
reflecting that the Beneficiary supervised a director of operations, general manager, finance director, 
and a legal consultant. Beyond this, the general manager was shown to oversee a "vacant" engineering 
manager position, a human resources manager, and an administrative manager. The chart also showed 
that the engineering manager position supervised seven project coordinators, a network coordinator, 
two technicians, two "draftsman," and a "general services" employee. Lastly, the HR manager and 
administrative assistant were both shown to oversee assistants. 
The Petitioner did not sufficiently substantiate the foreign employer's asserted organizational structure 
and operations during the time of the Beneficiary's foreign employment. First, the foreign 
organizational chart provided in response to the RFE was undated. Further, this organizational chart 
listed 23 employees, including the Beneficiary. However, the Petitioner submitted asserted foreign 
employee bi-weekly payroll documentation dating from August 2010 through September 2011, but 
none of these reports included 23 employees, ranging only from 11 to 16 employees during this time. 
The most recent foreign payroll document prior to the Beneficiary's entry into the United States as a 
nonimmigrant from September 2011 listed only 11 individuals and did not include two of his claimed 
subordinate managers, the director of operations and finance director. These discrepancies leave 
substantial uncertainty as to the foreign employer's asserted organizational structure during the 
Beneficiary's time of foreign employment and whether he acted in an executive capacity. In addition, 
as we have noted, it is not clear from what time the submitted foreign organizational chart dates. The 
Petitioner must resolve this inconsistencies and ambiguities in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Furthermore, there is little supporting evidence on the record to corroborate the foreign employer's 
asserted operations during the Beneficiary's claimed time of foreign employment. For example, in a 
support letter from the foreign employer's general manager, they stated that the company "was 
dedicated to the sale and execution of turnkey projects in the area of telecommunications based on 
fiber optic networks and the creation of videoconference rooms, including Design, Procurement ... , 
Engineering ... and construction." This letter from the foreign employer also stated that the Beneficiary 
was responsible for "managing the projects," making decisions on "the objectives and policies of the 
company," ensuring that objectives for implementation and commissioning were achieved, and 
handling staffing, contingencies and scope changes on these projects. 
However, in each case, there is no supporting documentation to substantiate the foreign employer's 
operations in information technology and telecommunications projects or evidence of the company's 
finances during the period of the Beneficiary's foreign employment, or at any other time. In addition, 
there is no supporting evidence to corroborate the Beneficiary's performance of tasks for the foreign 
employer during his asserted time of his foreign employment, and more importantly, his performance 
of executive-level tasks related to its broad goals and policies, rather than its day-to-day operations. 
In fact, the foreign employer's discussion of the Beneficiary's project focused activities abroad is more 
indicative of his performance of non-qualifying operational duties directly related to the provision of 
goods and services, rather than his broad setting of goals and policies from an elevated position within 
the organization. 
5 
Lastly, the Director pointed to the Beneficiary's Form I-485, Application to Register Permanent 
Residence or Adjust Status and his other visa applications reflecting that the Beneficiary was also 
employed abroad by al I from August 2005 to September 2011 during 
his time of asserted employment with the foreign employer. The Director indicated that this 
"unresolved inconsistency" casted doubt on the Beneficiary's qualifying employment. On appeal, the 
Petitioner contends that the Director did not properly consider the Beneficiary's employment with 
both companies during this time and asserts that this claimed dual employment does not invalidate his 
qualifying employment abroad with the foreign employer. 
Although the Beneficiary's purported dual employment does not form our primary basis of dismissing 
this appeal, it was notably not discussed by the Petitioner in support of the petition. Further, this 
executive employment with another foreign employer leaves further uncertainty as to the Beneficiary's 
qualifying foreign employment, particularly in light of the lack of supporting documentation to 
substantiate his performance of duties for the foreign employer and this company's operations during 
that time. To illustrate, in a letter submitted on appeal, the Petitioner stated that the Beneficiary 
devoted approximately 40 to 45 hours per week to the foreign employer, and around 15 to 20 hours to 
I I However, there is no supporting evidence to substantiate this assertion, beyond the Petitioner's 
generic statements. Again, the Petitioner must resolve this inconsistencies and ambiguities in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, at 591-92. 
Therefore, in conclusion, the Petitioner did not establish that the Beneficiary was employed in an 
executive capacity abroad. As noted, the Petitioner submitted a generic foreign duty description for 
the Beneficiary that does not credibly demonstrate he was primarily performing executive-level duties 
while employed abroad. Further, there is little supporting documentation to substantiate the 
Beneficiary's performance of executive-level duties abroad, such as evidence reflecting his setting of 
broad goals and policies for the organization and his oversight of subordinate supervisors and 
managers as reflected in his duty description and the foreign organizational chart. Further, the 
Petitioner did not submit sufficient evidence to overcome apparent discrepancies in the foreign 
employer's organizational chart and payroll records, nor did to properly corroborate its claimed 
operations or the Beneficiary's asserted executive-level role within the company. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary was employed in an 
executive capacity abroad. 
ORDER: The appeal is dismissed. 
6