dismissed EB-1C Case: Textiles

U.S. Citizenship 
and Immigration 
Services 
In Re : 17678943 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE 10, 2021 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner is a textile supplier that seeks to pay the Beneficiary $25,000 annually to permanently 
employ him as its "President/CEO" under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b )(1 )(C), 8 U.S.C. § 1153(b )(1 )(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 Nebraska Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that: (1) a qualifying relationship exists between the Petitioner and the 
Beneficiary's employer abroad; (2) the Beneficiary was employed abroad in a managerial or executive 
capacity; and (3) the Beneficiary will be employed in a managerial or executive capacity in his 
proposed position in the United States. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will dismiss the appeal because 
the Petitioner has not established that it would employ the Beneficiary in a managerial or executive 
capacity. Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline 
to reach and hereby reserve the Petitioner's appellate arguments regarding the remaining issues. See 
INS v. Bagamasbad, 429U.S. 24, 25 (1976) ("courts and agencies are not required to make finding; 
on issues the decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 
26 I&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
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 foratleast 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 ). The Form I-140 must also 
be accompanied by evidence demonstrating the Petitioner's ability to pay the Beneficiary's proffered 
wage at the time of filing. 8 C.F.R. § 204.5(g)(2). 
II. EXECUTIVE CAPACITY IN THE UNITED STATES 
The issue to be addressed is whether the Petitioner provided sufficient evidence demonstrating that 
the Beneficiary would be employed in an executive capacity. 1 
"Executive capacity" means 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) of the 
Act. 
To be eligible for L-1 A nonimmigrant visa classification as an executive, the Petitioner must show 
that the Beneficiary will perform 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 thatthe offered position meets 
all four of these elements, we cannot conclude that it is a qualifying executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitionermustprove that the Beneficiary will be primarily engaged in executive duties, 
as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family 
Inc. v. USCJS, 469 F.3d 1313, 1316 (9th Cir. 2006). The Petitioner must provide a job description that 
clearly describes the duties to be perf mmed by the Beneficiary and indicate whether such duties are 
in an executive capacity. See 8 C.F.R. § 204.S(j)(S). In determining whether a given beneficiary's 
duties will be primarily executive, we consider the petitioner's description of the beneficiary's job 
duties, the company's organizational structure, the duties of a 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 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, its staffing levels, and its organizational structure. 
1 The Petitioner does not claim thatthe Beneficiary's U.S. employmentwould be in a managerial capacity. 
2 
A. Factual Background 
The Petitioner provided a supporting cover letter from the Beneficiary, who explained that he is the 
Petitioner's "sole owner" and "President/CEO" and that he manages and directs the U.S. entity and 
employs a staff that includes a purchase manager, a sales and marketing manager, a sales executive, 
and a logistics executive. The Beneficiary stated that he seeks to expand his business by finding new 
customers for his products in the United States and listed his proposed job duties as follows: 
(1) develop and direct the Petitioner's daily business operations; (2) devise and develop business plans 
and strategies; (3) oversee company finances; ( 4) consult with employees in charge of purchase and 
sales; (5) set employee salaries; (6) and hire and fire employees. The Petitioner also provided 
employee job descriptions, an organizational chart, and 2019 employee payroll summaries. The 
organizational chart shows the Beneficiary at the top of the hierarchy overseeing a "purchase 
manager," a "logistics executive," and a "sales and marketing manager," who is depicted as overseeing 
a '·sales executive." The payroll summaries show that among the Beneficiary's support staff, the 
purchase manager was the highest-paid employee earning $14,975, while the sales and marketing 
manager was the lowest-paid employee earning $13,965. 
In a request for evidence, the Director infom1ed the Petitioner that the job descTiption it provided was 
overly vague and did not convey sufficient infmmation about the Beneficiary's daily tasks. The 
Petitioner was therefore asked to provide a more detailed job description listing individual duties and 
the percentage of time to be spent on each duty and to refrain from grouping tasks together. 
In response, the Petitioner resubmitted its organizational chart and provided a new job description in 
which it assigned a percentage of time to the broad job duties listed above in Nos. 2-6 andelabornted 
on each item with additional subsets of duties. The Petitioner stated that 30% of the Beneficiaiy's 
time would be allocated to devising and developing business plans, which would involve "setting the 
direction of the business" and making necessary changes, analyzing the textile lining market and 
looking for available product sources, reviewing competitor pricing, looking for new customers and 
developing proposals to be pitched by the sales staff, considering new products, and monitoring the 
market and adjusting products and pricing accordingly. The Petitioner allocated another 30% of the 
Beneficiary's time to consulting with the purchase and sales staff, which would involve daily and 
weekly meetings with "purchasing agents" to discuss purchasing options, quality and delivery of the 
goods, and credit terms, and having daily and weekly meetings with the "sales force" to discuss sales 
volume, pricing, customer satisfaction, credit issues, potential new customers, and performance of the 
sales employee. The Petitioner allocated20% of the Beneficiary's time to overseeing finances, which 
would include "conferring with accountants" and monitoring cash flow through daily and weekly 
reviews of on line bank statements; and the remaining 20% of the Beneficiary's time would be evenly 
divided between setting employee salaries and hiring and firing employees. 
The Director determined that the Petitioner provided a job description that lacked sufficient detail and 
did not establish that the Beneficiary meets the elements of the statutory definition of executive 
capacity. The Director also questioned whether the Petitioner's staffing composition was sufficient to 
support the Beneficiary in an executive position. 
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On appeal, the Petitioner argues that it offered an "extensively detailed and particular [job] 
description" and objects to the Director's consideration of the number of employees as a factor in 
making the decision to deny the petition. 
B. Analysis 
We disagree with the Petitioner's arguments and find that the record lacks sufficient evidence to 
warrant a favorable finding. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
an organization or major component or function of the organization, and that person's authority to 
direct the organization, major component, or function. Section 101 (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. Thus, 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 the broad goals and policies of the organization, major component, or function, 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 has adequately demonstrated that the Beneficiary has unfettered discretionary authmity 
to make business, financial, and personnel decisions by virtue of owning the entirety of the Petitioner's 
stock and assuming a position at the top of the organizational hierarchy. However, the Petitioner has 
not provided sufficient evidence demonstrating how the Beneficiary will "direct the management" of 
the organization or establishing that the Beneficiary would be relieved from having to primarily 
perform non-executive job duties under the given circumstances. Despite the managerial position 
titles assigned to the Beneficiary's subordinates, the 2019 employee payroll summaries show that no 
employee was compensated wages commensurate with those of a full-time employee in the time 
period that immediately preceded this petition's January 2020 filing. As noted earlier, the Petitioner's 
top-earning employee was paid an annual rate of $14,975, which is approximately $11,000 below the 
2019 minimum wage inl I where the Petitioner's business is located. 2 The record further 
shows that the Petitioner's sales and marketing manager was compensated the least, earning $13,965, 
which is approximately $12,000 below the required minimum wage and $300below that of the "sales 
executive" who is claimed to be subordinate to the sales and marketing manager. 
The Petitioner offers no explanation as to why the individuals who are claimed to hold the top 
management positions within its organization have been compensated wages which, at best, indicate 
that they are part-time employees receiving wages that appear to be inconsistent with their respective 
position titles. Although the Petitioner provided job descriptions for the positions listed in its 
2 
The New York State minimwn waJe schedule shows that the minimum wage requirement for small business with less 
than 10 employees irJ , in 2019 was $13.50 per hour. Sec https://www.ny.gov/new-york-states-minimum­
wa ge/new-york-states-minimum-wage. 
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organizational chart, we cannot overlook the low wages paid to the employees who occupy these 
positions, which leads us to question the reliability of the job descriptions and the likelihood that the 
Petitioner had the staffing necessary to relieve the Beneficiary from having to allocate his time 
primarily to non-executive job duties. 
Despite the Petitioner's objections on appeal, it is appropriate for USCIS 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-managerial or non-executive operations of the company or a company that 
does not conduct business in a regular and continuous manner. Family Inc. v. USCIS, 469 F.3d 1313 
(9th Cir. 2006); Systronics C01p. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Thus, in a totality of 
the evidence analysis, it is reasonable for us to consider factors that affect the Beneficiary's 
employment, including the fact that the Beneficiary would work within the context of a four-person 
support staff whose respective salaries are commensurate with part-time employment. We also take 
note of the Petitioner's office lease, which shows that at the time of filing, the Petitioner paid $400 
monthly to rent a 50-square-foot space whose corresponding photographs show that it contained one 
desk and chair and that the rest of the space was filled with hanging racks holding textile products. It 
is unclear how the rented space would accommodate the five employees the Petitioner claimed at the 
time of filing. If users finds reason to believe that an assertion stated in the petition is not true, 
users may reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § l l 54(b ); Anetekhai 
v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop,Inc. v. Nelson, 705 F. Supp. 7, 10 
(D.D.C. 1988);Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). These noted deficiencies 
regarding the Petitioner's staffing and business accommodations undermine the claim that the 
Beneficiary would be employed in an executive capacity. 
Further, despite providing a job description indicating that the Beneficiary would continue to have the 
highest level of discretionary authority over the financial, personnel, and business matters, the 
Petitioner has not adequately delineated the Beneficiary's daily tasks or established that the primary 
portion of his time would be spent performing executive-level job duties. Although the RFE asked 
the Petitioner to assign a percentage of time to individual job duties, the Petitioner did not comply 
with that request and instead assigned a percentage of time to the five broader categories, as described 
earlier in this decision. For instance, the Petitioner stated that 30% of the Beneficiary's time would 
be allocated to devising and developing business plans, but it did not specify what portion of time 
would be spent performing the underlying activities of that category, which includes ambiguous duties 
like "setting the direction of the business," making necessary changes, analyzing the textile lining 
market, and monitoring the market, as well as some potentially operational tasks, such as looking for 
available product sources and new customers and developing proposals. Further, although the 
Petitioner does not expressly state that the Beneficiary will perform non-executive job duties, the 
record shows that the Beneficiary attended multiple trade shows, presumably in an effort to market 
the Petitioner's offerings, and thereby performed marketing tasks, which would not qualify as duties 
of an executive nature. As the Petitioner did not specifically list the Beneficiary's trade show 
attendance in the provided job description, it is unclear precisely how much time he has and would 
allocate to this non-executive job duty. 
The Petitioner also claimed that 20% of the Beneficiary's time would be spent overseeing the 
company's finances, but it did not adequately elaborate on the underlying duties of this broadly stated 
responsibility, which is said to include "conferring with accountants" and monitoring cash flow 
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through daily and weekly reviews of online bank statements. Namely, the Petitioner did not elaborate 
on the specifics addressed in its daily or weekly communications with accountants, explain how its 
business needs are best served through such communications, or establish that reviewing on line bank 
statements is an executive-level task. Furthermore, the Petitioner did not specify which tasks are 
executive in nature and which are not, thus leaving us to question whether any of the Beneficiary's 
activities should not be considered executive. See Decor Team LLC v. McAleenan, 2021 WL 661974 
at *5 (D. Ariz. Feb. 19, 2021); see also Ren and Elizure International, Inv. v. USCIS, 2021 WL 
1784615 at *6 (E.D. Va. May 5, 2021 ). Itis critical to point out, however, thatthe burden of discerning 
between tasks that are executive and those that are not falls squarely on the Petitioner. See section 
291 of the Act, 8 U.S.C. § 1361. By neglecting to specify which of the Beneficiary's tasks are claimed 
to be executive in nature, the Petitioner has not met this burden. 
Lastly, although it is likely that the Beneficiary's ownership interest and top-most placement within 
the Petitioner's organizational hierarchy entitles him to have ultimate discretion in hiring and firing 
employees and setting their salaries, the Petitioner has not established that these are more than 
intermittent tasks performed on a need basis as opposed to ongoing tasks that the Beneficiary would 
perform daily or weekly to further its business goals as textile supplier. The Petitioner must support 
its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 
369,376 (AAO 2010). 
The fact that the Beneficiary will manage or direct a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 10 l(a)( 44) of the Act. By statute, eligibility for this classification requires that the 
duties of a position be "primarily" executive in nature. Section 101 (A)( 44) of the Act. While the 
Beneficiary may exercise discretion over the Petitioner's day-to-day operations and possess the 
requisite level of authority with respect to discretionary decision-making, these characteristics do not 
establish that the Beneficiary's actual duties will be primarily executive in nature. To make this 
determination, we rely on specific information about a beneficiary's actual daily tasks as an important 
indication of whether their 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), ajf'd, 905 F.2d 41 (2d. Cir. 1990). As discussed above, the Petitioner 
has provided a deficient job description that does not establish that the Beneficiary's time would be 
allocated primarily to executive job duties. 
In light of the deficiencies catalogued above, we conclude that the Petitioner has not established that 
the Beneficiary would be employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
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