dismissed EB-1C Case: Textile Trading

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-V-A-INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 19. 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. an entity that trades and sells yam and cotton. seeks to permanently employ the 
Beneficiary as its president under the first 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)(1)(C). This classification allows a U.S. employer to pem1anently transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition. concluding that the record did not 
establish. as required. that the Beneficiary will be employed in the United 
States in a qualifying executive or managerial capacity. and that he \Vas employed abroad in such a 
capacity. 
On appeal. the Petitioner submits a brief and asserts that the Director demanded an unrealistic and 
impermissible level of specificity in the evidence and erroneously concluded that the Beneficiary 
would not be performing in an executive capacity. 
Upon de novo 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 aftiliate. Section 203(b)( I )(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 tiling of the petition. that the beneficiary is coming to work in the United States t()f 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 o/A- V-A- Inc. 
II. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director determined that the Petitioner did not establish that the Beneficiary has been employed 
with the foreign entity in an executive capacity. and that he would be employed in the United States 
. h . I m t e same capacity. 
··Executive capacity" is defined 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 101(a)(44)(B) ofthe Act. 8 U.S.C. ~ 1101(a)(44)(B). 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity. U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization. in light of the overall purpose and stage of development of 
the organization. Section 101(a)(44)(C) ofthe Act. 
A. Foreign Employment in an Executive Capacity 
The Petitioner provided a list of the Beneficiary's duties with its Chinese parent company. and a 
corresponding organizational chart showing the names and titles of the individuals who work for the 
Beneficiary at the foreign entity. While the Director referenced the Beneticimfs job description for 
his employment abroad. it does not appear that the Director considered the totality of the evidence in 
determining whether the Beneficiary was employed abroad in an executive capacity. This 
adjudication requires a review of the foreign company's organizational structure. the duties of the 
Beneficiary's subordinate employees. the presence of other employees available to relieve him from 
performing operational duties. the nature of the business. and any other factors that contribute to 
understanding the Beneficiary's actual duties and role in the f(Jreign business. 
The Petitioner provided sufficient supporting evidence to establish that the foreign entity more likely 
than not employed the Beneficiary in an executive capacity. The foreign entity's organizational 
chart depicts the Beneficiary as the most senior employee in a company with seven chief ot1icers and 
directors responsible for running 13 oftices and factories in China and abroad. Further. the record 
contains the foreign entity's payroll records and employee lists corroborating the structure depicted 
in the organizational chart. Viewing the Beneticimfs job duties within the totality of the evidence 
submitted, the Petitioner established that the Beneficiary primarily directed the management of the 
foreign company as a whole. established the foreign company's goals and policies. exercised wide 
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The Director also found that the Petitioner did not establish that the Beneficiary was employed abroad. or would be 
employed in the United States. in a managerial capacity. However. the Petitioner does not claim that the Beneficiary has 
been or will be employed in a managerial capacity. Therefore. \ve restrict our analysis to whether the Beneficiary's 
employment has been and will be in an e:-.:ecutive capacity. 
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Matter ofA- V-A- Inc. 
latitude in discretionary decision-making, and received only general supervision or direction from 
the board of directors. consistent with the statutory definition of executive capacity at section 
101(a)(44)(B) ofthe Act. Nevertheless. the appeal will be dismissed for the following reasons. 
B. U.S. Employment in an Executive Capacity 
The remaining issue is whether the Petitioner established that it will employ the Beneficiary in an 
executive capacity. The Director found that the Petitioner did not provide sufficient information 
regarding the Beneficiary's day-to-day activities to establish that he would perform primarily 
executive duties. 
1. Proposed Duties 
When examining whether a beneficiary will be employed in an executive capacity. we will look first 
to the submitted description of the job duties. See 8 C.f.R. § 204.5(j)(5). 
Based on the statutory definition of executive capacity. the petitioner must first show that the 
beneficiary will perform certain high-level responsibilities. Champion World. lm:. v. INS. 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second. the petitioner must demonstrate that the 
beneficiary will be primarily engaged in executive duties. as opposed to ordinary operational 
activities alongside the petitioner·s other employees. ,)'ee Family Inc. v. USCIS. 469 F.3d 1313. 
1316 (9th Cir. 2006): Champion World. 940 F.2d at 1533. 
In its letter of support. the Petitioner explained that it was established tor the purpose of expanding 
its Chinese parent company's customer base into North and South America and to --vertically 
integrate'· its distribution operations. The Petitioner broadly stated that the Beneficiary will be 
responsible for planning. developing. and establishing policies and objectives for its business 
operations. presiding over the board of directors in his role as chairman to make sure they comply 
with policies and objectives. restructuring personnel, determining and evaluating current operation 
functions on behalf of the parent company. and reporting to the parent company for all business 
matters within the United States. In a separate chart. the Petitioner listed similar duties and assigned 
the percentage of time the Beneficiary would allocate to six general areas of responsibility. The 
Petitioner indicated that the Beneficiary"s primary duties would be establishing the company"s 
policies and objectives ( 40% ). and supervising and coordinating ··marketing strategies. financial 
planning. [and] business contracts among departments and managers .. (40%). 
After reviewing the record. the Director issued a request for evidence (RFE). advising the Petitioner 
that the initial description was too broad and ambiguous to establish what the Beneficiary does on a 
day-to-day basis. The Director instructed the Petitioner to list the Beneficiary"s specific daily job 
duties and the percentage of time he would allocate to each individual task. The Director advised the 
Petitioner against grouping tasks into categories. In response. the Petitioner provided the following 
breakdown of the Beneficiary"s daily job duties: 
Matter ofA- V-A- Inc. 
• 30%: Supervises activities of various departments of [the Petitioner]. Attending 
meetings with upper level management. Keep updated on developments within 
departments and coordinate activities as necessary. 
• 10%: Explore potential improvements in raw material sourcing. product distribution 
channels and potential major clients/business partners. Research and build 
connections in major North & South American textile markets in order to expand [the 
Petitioner's J customer base and business opportunities. 
• 10%: Determine structure of company and hire/fire management level employees. 
Set overarching policies. objectives. and protocols of [the Petitionerj. 
• 10%: Keeping updated on overall trends within the global textile industry so as to 
make appropriate business decision. 
• I 0%: Setting monthly import targets including product type. quantity. and other 
specifications. 
• I 0%: Develop sales and marketing goals and benchmarks for appropriate 
departments. 
• 5%: Preside over the Board of Directors and handle other corporate duties. 
• 5%: Coordinate business activities with parent company. 
The Petitioner also correlated the statutory definition of ··executive capacity" to the Beneficiary's 
claimed duties, noting that he: ··directs the management of all the various operational departments": 
establishes all organizational goals and policies": has ··total discretion in decision-making": and 
'·receives only general supervision" from the board of directors. 
Like the Beneficiary's initial job description, this revised description also discussed his proposed 
position in a general manner without conveying a meaningful understanding of his actual daily tasks. 
For instance, the Petitioner claimed that 10% of the Beneficiary's time would be allocated to 
supervising the activities of various departments. attending meetings with upper level management 
staying updated on the activities of various departments. and coordinating their activities. llowever. 
this description conveys a general sense of the Beneficiary's level of authority without adding 
practical understanding of the specific actions the Beneficiary would undertake to meet these 
broadly stated joh responsibilities. 
Next. the Petitioner stated that 10% of the Beneficiary's time would be allocated to exploring 
improvements in raw material sourcing. product distribution channels. and potential major 
clients/business partners. and that he would research and build connections in major North and South 
American textile markets. However. the Petitioner did not explain how the Beneficiary would 
explore improvements in raw material sourcing and distribution channels. what kind of potential 
clients and partners he is expected to identify. and how he would build connections in North and 
South American textile markets. The Petitioner provided shipping receipts as evidence that it is 
engaged in business: however, these reflect that the Petitioner is the shipping agent for textiles 
shipped from Pakistan to the foreign parent company in China. The record lacks evidence that the 
Beneficiary is developing contacts or a customer base in North and South America. as the Petitioner 
claimed. Moreover. it is not clear that these tasks. which arc part of the overall process of sourcing, 
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Matter of A- V-A- Inc. 
selling and trading the foreign entity's cotton and textiles. and finding more clients to sell those 
products to. can be deemed executive in nature. For example. the organizational chm1 shows that the 
Petitioner has a separate business development manager and a sales/marketing manager. but the 
Petitioner has not explained \vhy the Beneficiary will be perf(xming business and sales development 
duties that appear to fall under those departments. Further. the Petitioner does not claim to have 
subordinate statl engaged in raw material sourcing. 
The Petitioner also stated that the Beneficiary would spend a combined 20%> of his time determining 
the structure of the company. setting policies and goals. and staying updated on trends. but did not 
specify any issues. activities. hiring needs. or objectives with respect to these duties. Again. \vhile 
all of these sets of duties suggest the Beneficiary's heightened degree of discretionary authority over 
business activities. the Petitioner did not provide sufficient information about his actual daily tasks. 
Specifics are an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature: othenvise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co .. Ltd \'. Sava. 724 F. Supp. 1103. 1108 (E.D.N.Y. 1989). qj(d. 905 
F.2d 41 (2d Cir. 1990). The actual duties themselves reveal the true nature of the employment. !d. 
While it is likely that the Beneficiary \Vould hire and tire employees intermittently based on the 
needs of the organization. there is little evidence to suggest that the Beneficiary v-ould perform any 
of these duties in the routine course of his daily business. 
The Petitioner advised of the Beneficiary's role in setting monthly import and export targets. and 
developing sales and marketing goals and benchmarks for the appropriate departments. allocating a 
combined 30% of the Beneficiary's time to these duties. Hovvevcr. the Petitioner did not disclose 
any specific actions that \Vould be involved in setting import/export targets and sales and marketing 
goals: nor did the Petitioner provide further information to explain v,:hy the Beneficiary \vould be 
tasked with setting goals. and targets for departments that do not appear to have been staffed with the 
underlying accountants. and sales and investment staff In fact. the Petitioner has not assigned 
import- or export-related duties to any of the subordinate staff. Finally. although the Petitioner 
claimed that the Beneficiary would preside over the board of directors and report to the parent 
company, it is unclear how this responsibility would translate to approximately 10% of his daily 
activities. 
Based on the foregoing, we agree with the Director's determination that the Beneficiary's duty 
description \vas too vague to establish that he \vill perform primarily executive duties. Moreover. 
the description includes oversight of operational activities (including rmv material sourcing. import. 
and export) which have not been assigned to any subordinate staff. raising questions as to vvhether 
the Beneficiary vvould be directing the per1(mnance of these functions. 
On appeal. the Petitioner asserts that the Beneficiary does not have a set daily routine and that his 
duties are ever evolving. Nevertheless. the Petitioner contends that it has provided a description of 
the Beneficiary's proposed duties that satisfies the 1()ur prongs or the definition of executive at 
8 C.F.R. § 204.5(j)(2). The Petitioner also states that the Director's determination that the evidence 
is not sufficient appears to go beyond what is required by the law. and seems to require the Petitioner 
Matter ofA- V-A- Inc. 
to provide a level of detail that is complicated and contammg .. unnecessary minutiae." The 
Petitioner is not required to provide overly complicated and unnecessary details; however, it remains 
that the description of the Beneficiary's job duties is not detailed enough to provide insight into what 
his actual duties arc. and the evidence does not tend to support the Petitioner's general assertions. 
For example. as discussed, the Petitioner stated that the Beneficiary would be developing North and 
South American textile markets. but the supporting evidence lists the Petitioner as the shipping 
entity for textiles that are moved from Pakistan to China. The record lacks evidence that the 
Beneficiary is engaged in development of markets in North and South America. although that is the 
claimed basis for the Petitioner's business in the United States. 
Although the Beneficiary has authority over personnel and business matters based on his top-most 
placement within the Petitioner's organizational hierarchy. the issue is whether the job duties the 
Beneficiary would carry out in the process of running the U.S. operation would be primarily of an 
executive nature. As stated above. we find that the Petitioner has not submitted sufficient 
information about the Beneficiary's actual daily tasks and therefore 'Ne cannot determine whether 
such tasks would be primarily executive in nature. Based on the above discussion highlighting the 
various deficiencies in the job descriptions on record. the Petitioner's evidence lacks a sufficient job 
description which .. clearly describe[ s] the duties to be performed" by the Beneficiary. 8 C .F.R. 
§ 204.5(j)(5). 
2. Staffing of U.S. Entity 
Beyond the required description of the job duties. USC IS reviews the totality of the evidence when 
examining the claimed executive capacity of a beneficiary. including 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 an understanding of a beneficiary's actual duties and role in a business. 
On the Form I-140. the Petitioner claimed to have nine employees. but it initially submitted an 
organizational chart showing only six staffed positions: 
• President [the Beneficiary]: 
• CFO: 
• Business development manager; 
• General manager: 
• Marketing manager; and 
• Client/account manager. 
The organizational chart included the following untilled pos1t10ns: ottice manager, warehouse 
foreman, investment statl marketing staff~ sales representatives: otlice staff: and warehouse staff. 
The Petitioner provided duty descriptions. annual salaries. and educational/experience requirements 
for nine positions. 
.
Matter ofA- V-A- Inc. 
In response to the RFE, the Petitioner provided a second organization al chart which reflected that the 
following position s have been staffed: 
• CEO/Gener al Manager l the Benefici ary ]; 
• CFO: 
• Business development manager : 
• Vice general manager (previously identifi ed as general manager); 
• Financial manage r; 
• Investment manager: 
• Sales & marketing manager (previou sly identified as marketing manager): 
• Office manag er; 
• Marketing staff (one employee); and 
• Warehouse staff (one employee). 
This chart shows vaca ncies for a public relation s a nd client relation s manager. and for the third-tier 
positions of staff accountant, investment staff. sales staff: and office staff. The position s of 
client /account man age r and warehouse foreman were eliminated. and the Petitioner added the 
financial manager . investment manager. and staff accountant position s. which did not appear on the 
initial chart. The Petitioner also submitt ed position description s with salaries and educati onal 
requirements with the new chart. The job descriptions for the employees serving as vice general 
manager and CFO were substantially differ ent from those provided at the time of tiling. while the 
Petitioner also signific antly lowered the claimed salaries for a number of positions without 
exp lanation. 
We have compared the submitted organizational charts to the Petitioner· s internall y generated 
quarterly payro ll journals for 2016. The empl oyees who were on the payroll at the time of tiling 
included: all six emp loyees named on the initial chart: the financi al m anage r. office manag er and 
warehouse stafTwho were identified only on the seco nd chart: and a tenth individual who did 
not appear on either chart. The investment manager and ""marketing staff' employee were not on the 
payroll at the time of tiling. Although the Petitioner indicated that all of its employees were full­
time , many were not earn ing their stated salaries. and tive employees. including the warehouse staff. 
financial manager , sales and marketing manag er, acco unt manager , and the unid entified employee 
we re earning salaries that were not commensurate will full-tim e e mpl oyment, even at minimum 
) 
wage .-
Therefore, while the payroll evidence supports that the Petitioner had nine employees at the time of 
tiling, there are a numb er of anomalies with regard to the subordinat es' job titles, job duties. salaries, 
) 
- The Petitioner filed this petition in 2016, when the minimum wage in California was $ 10 per hour and a yearly salary 
based on a 40-hour work week at the minimum wage would have been $20,800. However. these five employees were 
eaming yearly salaries ranging fi·om $ 14,400 and $ 19,200. which does not comport with the Petitioner's claim that they 
were full-time employees . Histmy of Califhrnia Minimum Wage. http://www.dir.ca.gov/iwc/M ininwm WageH istory.htm 
(last visited on Dec. 13, 20 17). 
Matter o/A- V-A- Inc. 
and full-time status. Both charts show that the Petitioner is not yet fully staffed and only has one 
employee in the marketing department and one warehouse employee. To the extent that there are no 
sales employees yet the Petitioner provided evidence to show that it is engaged in business. it is 
unclear which employee is performing the daily duties of a salesperson. Further. as noted. the 
Petitioner claims that the Beneficiary performs higher-level duties related to raw materials sourcing. 
import and export activities. but it does not have employees who are responsible for performing 
duties related to these critical functions. 
The statutory definition of the term '"executive capacity" focuses on a person· s elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person· s authority to direct the organization. Section 1 01 (a )(44 )(B) of the 
Act. Under the statute. a beneficiary must have the ability to '"direct the management" and '"establish 
the goals and policies" of that organization. Inherent to the definition. the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and a beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day 
operations of the enterprise. An individual will not be deemed an executive under the statute simply 
because they have an executive title or because they '"direct" the enterprise as an owner or sole 
managerial employee. A beneficiary must also exercise '"wide latitude in discretionary decision 
making'' and receive only "'general supervision or direction hom higher level executives. the board 
of directors. or stockholders of the organization ... !d. 
The Petitioner claims that the Beneficiary directs the management of the organization through 
subordinate managerial statT. However. the presence of seven '"managers" and only two subordinate 
staff across all of the Petitioning entity's departments leads us to question the true nature of both the 
Beneficiary's job duties and the duties of his claimed management-level subordinates. For example. 
the Beneficiary's stated duties include setting sales directives and other benchmarks for each 
department and then reporting on their activities to the parent company. However. these high level 
duties would undoubtedly be affected by presence of only two non-managerial employees in the 
entire organization and the absence of additional statl to support the four remaining department 
managers and CFO. Of note. the Petitioner's most recent organizational chart indicates that it has no 
sales employees at all: therefore. it is unclear which employee. if any, is currently responsible for the 
sales transactions documented on the shipping invoices. As noted. the Petitioner does not have 
employees who are claimed to perform routine operational tasks related to sourcing raw materials. 
import and export. all activities which the Beneficiary is claimed to oversee. 
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 petition for classification as a multinational 
executive. See section l 01 (a)( 44 )(C) of the Act. However. it is appropriate f()r US CIS to consider 
the size of the petitioning company in conjunction with other relevant factors. such as the absence of 
employees who would perform the non-executive operations of the company. 5,'ee. e.g .. Family Inc., 
469 F.3d 1313: Systronics Corp. r. INS. 153 F. Supp. 2d 7. 15 (D.D.C. 2001 ). 
•\1a/1er o/A- V-A- Inc. 
While no beneficiary is required to allocate 100% of his time to executive-level tasks, a petitioner 
must establish that the non-qualifying tasks the beneficiary would perform are only incidental to the 
proposed position. Given the lack of non-managerial stafl and the number of staff who do not 
appear to be working full-time, it appears more likely than not that the remaining managers are 
required to perform the non-managerial duties of their respective departments. The evidence must 
substantiate that the duties of a beneficiary and his or her subordinates correspond to their placement 
in an organization's structural hierarchy. Managerial job titles alone arc not probative and will not 
establish that an organization is sufficiently complex to support an executive position. 
On appeaL the Petitioner refers to its organizational hierarchy, which shows seven positions 
reporting to the Beneficiary and asserts that the employees relieve him from having to carry out the 
organization's nonexecutive functions. Howevec without more information, we cannot conclude 
that the Beneficiary had adequate staff to support him in a position that would entail job duties that 
are primarily of an executive nature. The Petitioner's reliance on its organizational chart and 
employee job descriptions is insufficient given that several managers have no subordinate staff: and 
some company functions that the Beneficiary is claimed to oversee (such as purchasing and 
import/export) have not been assigned to any subordinate staff. Further. as noted, there are 
unexplained discrepancies in the record regarding some employees' job titles, job duties, salaries. 
and full-time status. Without further evidence or explanation, that the Petitioner has not established 
the Beneficiary would be relieved from being directly involved in carrying out the non-executive 
tasks that are currently allotted to his managers, or from performing other non-executive duties 
necessary to the company's day-to-day operations that have not been assigned to any staff. 
The Petitioner also asserts that the Director incorrectly determined that the Petitioner did not specify 
which employees the Beneficiary would supervise because the Petitioner had provided two 
organizational charts. Although the organizational charts show the names and titles of some of the 
Petitioner's employees, the Petitioner is not yet fully staffed and only has one employee in the 
marketing department, no sales employees, and one warehouse employee. Given the overall lack of 
non-managerial staff there is insutticient inf(mnation to show that any of the company's 
departments are staffed and operating at a level that requires the Beneficiary to supervise, 
coordinate, and stay updated on their activities or engage in hiring and tiring on a daily basis, as the 
Petitioner claims. 
We have considered the Petitioner's staffing needs within the scope of its development and sales­
driven operation: however, the lack of actual staff performing the underlying duties assigned to the 
Petitioner's departments detract from the its claims and lead us to question vvhether it was 
adequately staffed at the time of tiling such that it was ready and able to relieve the Beneficiary from 
having to allocate a significant portion ofhis time to non-executive duties. 
Based on the deficiencies addressed above, the Petitioner has not established that it vvill employ the 
Beneficiary in an executive capacity. 
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Matter ofA- V-A- Inc. 
III. CONCLUSION 
The appeal is dismissed as the Petitioner did not establish that it will employ the Beneficiary in an 
executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofA-V-A-Inc .. ID# 835558 (AAO Dec. 19. 2017) 
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