dismissed EB-1C Case: Tile Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re : 7867604 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 20, 2020 
The Petitioner, describing itself as a manufacturer and seller of tiles, seeks to permanently employ the 
Beneficiary as its "executive manager /chief executive officer" under the first preference immigrant 
classification for multinational executives or managers . Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition concluding that the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity in the United 
States . On appeal, the Petitioner asserts that the Beneficiary would be employed in an executive 
capacity overseeing three subordinate departmental supervisors . 
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. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The first issue we will address is whether the Petitioner established that the Beneficiary would act in 
an executive capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in a managerial capacity. Therefore, we restrict our analysis to whether the Beneficiary 
would be employed in an executive capacity. 
"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. 
When examining the executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in an executive capacity. 
8 C.F.R. § 204.5(j)(5). Beyond the required description of the job duties, we examine 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 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. 
A. Duties 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove 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. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d 1533. 
The Petitioner submitted evidence indicating that it is an importer and seller of tile products and stated 
that the Beneficiary's U.S. position would be in the "executive position of CEO/COO." The Petitioner 
further indicated the Beneficiary would handle "all business and financial matters, contract 
negotiations, development of strategic advertising and marketing plans ... and [be] responsible for the 
hiring of a production management staff and senior production/team to run the day to day operations." 
The Petitioner also explained that the Beneficiary would implement and execute "business, 
advertising, and marketing plans," "recruit and hire staff for management, retail and wholesale job 
functions," "negotiate and approve contracts," "devise strategies and policies," and "oversee 
professional subordinates in developing long-range plans." In support of the petition, the Petitioner 
listed the following duties for the Beneficiary: 
• 50% - Identifying and assessing opportunities amongst [the Petitioner's] core 
business, new territories and markets, and new business/ventures. 
2 
• 25% - Responsible for staffing personnel management, including the hiring, 
training and supervision of staff, particularly a management team and a team of 
production specialists. 
• 10% - Execution of transactions, including leading analysis, due diligence efforts, 
structuring/negotiating deals, transaction documentation and coordination [ of] 
transactions, [and] contracts[.] 
• 15%-Execution of the US Company's financial business plan, including budgets, 
investment in new technologies, financial forecasting. 
In addition, the foreign employer submitted a letter in support of the pet1t10n stating that the 
Beneficiary was "responsible for market research and production strategies" and "marketing our 
Natural Stone products in the USA." It farther indicated that the Beneficiary is "the only person taking 
care of Bank Accounts of our company in the USA" and noted that he is responsible for "organizing 
the daily operations of our company," "meet[ing] with representatives of our customers regularly," 
"listen[ing] to their demands about Natural Stone," and "offer[ing] ... products to our customers in 
California and other states." 
Likewise, the Petitioner provided another support letter explaining additional duties for the 
Beneficiary and his claimed subordinates. This document stated that the Beneficiary was tasked with 
deciding "which materials to import from other countries" and providing "a list of customers to the 
Sales Managers to visit them and listen to their demands." Further, it indicated that the Beneficiary 
"is the representative of our company in our relations with the big customers," "offers the best material 
with the best price for each customer," decides on "whether to put a sample board in a store or not," 
and conducts "market research about Northern California's Natural Stone business." It also explained 
that the Beneficiary was "responsible for going to Northern California and organizing the operations 
to open a new warehouse," hiring more sales managers, visiting the Petitioner's "big customers in 
Florida State," and negotiating "the prices and rebate[s] with those big customers." 
Later in response to the Director's request for evidence, the Petitioner provided another duty 
description for the Beneficiary as follows: 
► Reviewing, asking for re-negotiation of contracts and approving long term 
contracts negotiated by the Petitioner's head of sales - 10% of his time 
• Negotiating the rebate rates and payment terms in the contracts and approving 
increases and decreases of rebate percentages and extending payment terms, 
and 
• Making sure the head of sales in negotiating long-term contracts according to 
the company's pricing policies and capabilities. 
► Reviewing weekly sales reports in detail and ensuring sales policy is implemented 
effectively - 10% of his time 
• Implementing company policy focused on wholesale customers that buy 
material in large volumes. 
► Overseeing the activities of the sales department during multi-unit project's bid 
proposals - 15% of the time 
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• The sales department requires the Beneficiary's approval before preparing a bid 
proposal for a large project and he strictly oversees and checks the sales 
department while they are preparing bid proposals. 
► Ensuring the accuracy of each upcoming order and global logistics contracts, 
reviewing and approving them- 15% of his time 
• Ensuring that the head of office and export employee with the foreign parent 
company are communicating effectively and regularly and has the final say on 
reviewing and signing shipping contracts. 
► Overseeing critical and high-cost decisions regarding the warehouse such as renting 
extra warehouse space, hiring more workers, buying more forklifts/trucks, etc. that 
the head of warehouse is not authorized to make - 8% of the time 
► Adjusting commission rates for sales representative and head of sales - 3% 
► Determining selling prices - 18% 
• Considers supplier costs, shipping costs, and market prices to determine 
competitive selling prices for each product category and regularly reviews final 
selling prices. 
► Monthly tax agent visits - 5% 
• Makes sure that the outsourced tax agent fixes errors and mistakes on 
accounting records and files quarterly sales tax returns on time. 
► Accounting services agreements - 5% 
• Handles the process of signing accounting services agreements and makes sure 
that company expenses, payroll information, inventory, and depreciation tax 
deductions are filed accurately. 
► Reviewing and approving vendor and factory agreements - 8% 
• Reviews and approves vendor contracts with factories in Turkey and makes 
sure that they are negotiated in a way that prioritizes the company's 
competitiveness and quality promises. 
► Reviewing and approving out-of-state logistics contracts - 5% 
• Reviews and approves long-term freight contracts. 1 
First, the Petitioner has submitted duty descriptions that materially conflict leaving question as to the 
Beneficiary's actual day-to-day tasks. For instance, the Petitioner stated in support of the petition that 
the Beneficiary would devote half of his time to "identifying and assessing opportunities amongst [the 
Petitioner's] core business, new territories and markets, and new business/ventures." However, later 
in response to the Director's RFE, this generic duty did not account for half of the Beneficiary's time. 
Similarly, the Beneficiary's initial duty description provided with the petition indicated that he would 
1 We note that the percentages allocated to the Beneficiary's RFE duties total 102%. 
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spend 25% of his time on staffing "hiring, training and supervision of staff, particularly management 
team and a team of production specialists." Again, this task is not listed amongst the Beneficiary's 
duties provided in response to the RFE. Further, the first duty description and other statements in 
support of the petition appeared to indicate that the Petitioner had not yet hired subordinate managers 
and operational staff, whereas the RFE duty description suggests that this staff was already in place. 
Meanwhile, the Beneficiary's first duty description stated that the Beneficiary would devote 10% of 
his time to executing and coordinating transactions and structuring and negotiating contracts and deals. 
However, the RFE duty description reflected that the Beneficiary was spending, and would spend, 
much more time on these order processing and contract negotiations tasks; specifically, that they 
would account for at least 38% of his time. The significant discrepancies between the Beneficiary's 
two duty descriptions leaves substantial uncertainty as to his actual daily tasks. The Petitioner must 
resolve discrepancies 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). 
Further, the Petitioner's varying duty descriptions also indicate the Beneficiary's wide involvement in 
the non-qualifying operational matters of the business rather than the broad goals and policies of the 
organization. For example, one support letter provided by the Petitioner suggested the Beneficiary's 
engagement in various non-qualifying operational tasks, such as responding to customers with the best 
material prices, determining where sample boards would be placed in the field, performing market 
research about Northern California's natural stone business, visiting customers in Florida, and 
negotiating prices and rebates with these customers. In addition, another letter from the foreign 
employer appears to set forth similar operational sales tasks, noting that the Beneficiary is responsible 
for "marketing our Natural Stone products in the USA," "communicat[ing] with customers regularly," 
"listen[ing] to their demands," and offering "products to our customers in California and other states." 
In sum, these support letters from the Petitioner and foreign employer are indicative of the 
Beneficiary's direct performance of operational sales functions and not his delegation of these tasks 
to subordinate sales managers and representatives as asserted elsewhere on the record. 
Similarly, the Beneficiary's later RFE duties also reflect his wide involvement in the operational 
matters of the business on a daily basis, rather than his primary delegation of these duties to his claimed 
subordinates. For instance, the RFE duty description discusses the Beneficiary's involvement in bid 
proposals, purchase order preparation, updating inventory levels, coordinating communication 
between shipping employees in the U.S. and Turkey, making decisions on the purchase of forklifts 
and trucks, and setting specific customer pricing on a case-by-case basis. Further, the Petitioner 
indicated that the Beneficiary "strictly oversees" bid proposals and that he is "the only person taking 
care of [its] bank accounts." 
In contrast, there is little detail and supporting evidence to substantiate that the Beneficiary primarily 
sets broad policies and goals for his asserted subordinates, including evidence of the long-term 
contracts with customers he approved through his head of sales, the pricing policies he set, order 
processing policies he implemented, shipping contracts he approved, high-cost decisions he made, or 
commission rates he set for his subordinates. In addition, it is also noteworthy that there is no 
supporting documentation reflecting that the Beneficiary coordinating and overseeing his asserted 
subordinates or demonstrating that he primarily delegates non-qualifying duties to them. In sum, the 
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Beneficiary's duty descriptions are more suggestive of an employee primary involved in the day-to­
day operational matters of the business rather than higher level executive duties. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See sections 10l(a)(44)(B) of the Act. 
Here, the Petitioner does not sufficiently document what proportion of the Beneficiary's duties would 
be executive functions and what proportion would be non-qualifying. Although the Petitioner lists 
some executive-level tasks within the Beneficiary's duty descriptions, it also provides tasks throughout 
the record indicating his direct involvement in providing goods and services and performing other 
lower level operational tasks. For this reason, we cannot determine whether the Beneficiary is 
primarily performing the duties of an executive. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. 
Supp. 2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational executive within the meaning of section 101(a)(44)(B) of the Act. 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; however, the position description alone is 
insufficient to establish that his actual duties would be primarily executive in nature. 
B. Staffing and Function Manager 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
As discussed, the Petitioner contends that the Beneficiary would act in an executive capacity. 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 10l(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 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 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. 
In support of the pet1t10n, the Petitioner submitted an organizational chart indicating that the 
Beneficiary supervised a chief financial officer (CFO), a sales manager, an office manager, and a 
warehouse manager. In addition, the chart reflected that the sales manager supervised two sales 
representatives, the warehouse manager three warehouse workers, and the office manager an 
accountant and a receptionist. 2 However, in apparent conflict, the Petitioner later submitted an 
2 The petition was filed on July 6, 2018. 
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asserted organizational chart in response to the RFE, also dated in July 2018, showing that the 
Beneficiary supervised a head of sales, head of warehouse, and head of office, but no CFO. The lack 
of a CFO in the latter organizational chart is notable considering the Petitioner stated that the 
Beneficiary was the only employees managing the company's bank accounts, indicating that he is 
likely engaged in all then bookkeeping matters of the business. Further, this chart included five sales 
representatives subordinate to the head of sales, as opposed to two; and five warehouse workers, 
compared to three in the first chart. Again, these discrepancies leave question as to the Petitioner's 
actual organizational structure as of the date the petition was filed and whether the Beneficiary is 
primarily performing executive-level duties. 
The Petitioner also did not submit sufficiently detailed and credible duty descriptions for the 
Beneficiary's claimed managerial subordinates to establish that he acts in an elevated position within 
a complex organizational hierarchy. For instance, the Petitioner stated that the head of sales was 
tasked within supervising sales representatives, assigning them to specific territories, negotiating long­
term contracts with large customers, overseeing sales policies, and preparing bid proposals for "multi­
apartment unit projects." However, the record includes few credible details to substantiate these 
activities on the part of the Beneficiary's claimed head of sales, such as the territories he assigned 
sales representatives to, the long-term contracts he negotiated, sales policies he implemented or set, or 
the bid proposals he prepared. 
Likewise, the Petitioner indicated that the head of warehouse was responsible for "making sure that 
warehouse employees are working efficiently, safely, and preparing orders accurately," ensuring that 
inventory is organized, and overseeing the day-to-day activities of the warehouse. Again, the 
Petitioner provided few specifics to properly corroborate this claimed managerial role, including the 
safety, order processing, or inventory policies this employee put in place. Similarly, the Petitioner did 
not sufficiently detail the duties of the subordinate office manager, such as the purchase order or 
packing issues they dealt with, the customer service they made sure was "fast and proper," the long­
term logistics contracts they coordinated and finalized, or the foreign export employee they 
coordinated with. 
Again, as noted, the Petitioner provided no supporting evidence reflecting the Beneficiary's delegation 
of tasks to subordinate managers as discussed in his RFE duty description. However, the Petitioner 
did submit duty descriptions suggesting the Beneficiary's direct performance of non-qualifying 
operational tasks and his involvement in seemingly all of the operational matters of the business; and 
otherwise, there is little evidence of him delegating these tasks and coordinating subordinate managers 
as claimed. Therefore, the Petitioner has not established that the Beneficiary would act in an elevated 
position within a complex organizational hierarchy and that he would primarily focus on the broad 
goals and policies of the organization rather than its day-to-day operations. 
For the foregoing reasons, the Petitioner has not demonstrated that the Beneficiary would act in an 
executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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