dismissed EB-1C Case: Transportation

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-C-0-A- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 26, 2018 
APPEAL OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a transportation and freight forwarding company, 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)(I)(C), 
8 U.S.C. § 1153(b)(l)(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 Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity. 
On appeal, the Petitioner disputes the denial decision, asserting that the Director misinterpreted the 
evidence and did not consider the multinational business structure that helps to support the 
Petitioner's U.S. operation. 
Upon de novo review, we find that the Petitioner has not overcome the Director's findings. 
Therefore, we will dismiss the appeal. 
.I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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)(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 filing of the petition, that the beneficiary is coming to work in the United States for the 
same employer or a subsidiary or atliliate 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. § 204.5UJ(3). 
• Matter rifS-C-0-A- LLC 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that the Beneficiary will be 
employed in an executive capacity. The Petitioner did not claim that the Beneficiary would be 
employed in a managerial capacity; therefore, our analysis will address only the Petitioner's claim 
that the Beneficiary's proposed position would be in an executive capacity. · 
"Executive capacity" mearis 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 
IOI(a)(44)(B) of the Act. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's job description must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.F.R. § 204.50)(3). Beyond the required description of the job duties, 
U.S. Citizenship and Immigration Services (USCIS) examines 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. 
Based on the statutory definitions of managerial and 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 managerial or 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); Champion World, 940 F.2d 1533. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section 10 I (a)( 44)(C) of the 
Act. 
In a supporting statement, the Petitioner provided a comprehensive list of subordinate employees, which 
included a total of 13 positions; only 3 of those positions were identified as U.S. employees with the 
remaining I 0 identified as employees who work at one of the Petitioner's two affiliate offices in Brazil. 
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Matter r?fS-C-0-A- LLC 
The Petitioner provided its ow11 organizational chart, dated September 2016, as well as an organizational 
chart of its foreign atliliate depicting each entity's staffing structure. The charts show the Beneficiary at 
Ihe top ofboth hierarchies as the CEO and indicate that each entity has a finance manager, an operations 
manager, and a sales manager. The Petitioner's organizational chart indicates that the Beneficiary 
directly oversees these three positions along with the foreign entity's director. We note that the list of 
subordinates that was provided in the supporting statement is inconsistent with the Petitioner's 
organizational chart. Namely, while the organizational chart indicates that the Beneficiary's direct 
subordinates in the United States include a financial manager, an operations manager, and a sales 
manager, the supporting statement docs not list the sales manager position as one of the Beneficiary's 
subordinates and indicates that the Beneficiary oversees a director based in the U.S. office; according to 
the submitted organizational charts, the position of director is specific to the foreign entity and is 
exclusiveJy heJd by an individual who works for the Petitioner's Brazilian affiliate. 
In a request for evidence (RFE), the Director instructed the Petitioner to provide an organizational chart 
that identifies the Beneficiary's subordinates and lists their job duties. The Petitioner was also asked to 
disclose and provide evidence of the employees' educational levels as well as evidence of salaries and 
wages paid to all in-house employees and contractors. 
In response, the Petitioner provided an organizational chart depicting a multi-tiered staffing structure 
with the Beneficiary at the top as the "CEO/President," followed by a financial director, 1 an operations 
manager, and a sales manager in the United States and a director of the Brazilian entity as the 
Beneficiary's direct subordinates. Although the chart indicates that the foreign entity employed a sales 
manager and two employees subordinate to the sales manager~ the two sales positions within the 
Petitioner's own hierarchy are both shown as vacant. It is therefore unclear who wiH carry out the sales­
related tasks for the U.S. entity. The Petitioner also provided IRS Form W-2s for 2016 for the 
Beneficiary, the operations manager, the operations manager's subordinate, and for 
whom the original organizational chart identified as the sales manager. The Petitioner did not 
prm_ride a Form W-2 for its financial director, nor did it provide evidence of compensation paid to any of 
the 13 outsourced positions that were identified in the chart, including an accountant, a maritime 
operations coordinator, 3 warehouse workers, and 8 truck drivers. We note that the Petitioner submitted 
a 2017 quarterly tax return, which shows that the Petitioner paid wages to only three employees during 
the first quarter, immediately following the quarter during which this petition was filed. 
In the denial decision, the Director acknowledged that the Petitioner claimed six employees at the time of 
filing and listed the four employees. for whom 2016 Form W-2s were submitted. The Director 
questioned the Petitioner's ability to relieve the Beneficiary from having to primarily perform non­
executive functions and also noted that the Petitioner did not provide evidence to support the educational 
levels that were claimed for each of its listed employees. 
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The Petitioner's September 20 16 organizational chart indicates that the Petitioner employed in the position 
ol flnancial manager_ However. the organizalional chart submitted in response to lhe RFE indicates rhat the same 
individual occupied the position of financial director, As this incongruity in position titles is not material in the matter at 
hand. it need not be addressed further. 
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Matter o.fS-C-0-A- LLC 
On appeal, the Petitioner disputes the denial, contending that the Director's analysis is incorrect because 
it was conducted within the scope of the definition of managerial capacity, despite the Petitioner's claim 
that the Beneficiary would be employed in an executive capacity. We agree that the Director's 
contemplation of whether the Beneficiary's subordinates are professional employees indicates that he 
applied the definition of managerial capacity to parts of the analysis. However, we note that throughout 
the decision the Director consistently referred to both managerial and executive capacity and ultimately 
concluded that the Beneficiary does not qual ify.under either statutory definition. 
We also find that the Director considered other relevant factors that are common to both statutory 
definitions and are not exclusive to the detinition of managerial capacity. Most notably, the Director 
considered the Petitioner's staffing and organizational complexity , both of \Vhich are critical to an 
understanding of how the Petitioner would support the Beneficiary in his executive position and whether 
it bas the capacity to relieve the Beneficiary from having to allocate his time primarily to non-executive 
job duties and to elevate the Beneficiary to an executive position. 
The stanrtory definition of the renn "executive capacity " tocuses 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 101(a)(44)(B) of the Act. Under the statute, a 
beneticiary 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 they 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." /d. 
In the present matter, while the Director's consideration of the degree certificates of the Beneficiary's 
subordinates is not critical to our analysis, the Director correctly contemplated the number of employees 
the l'etitioner claimed on the petition and the documentation provided to support the claims being made. 
We tind that the Petitioner did not provide sut1icient evidence to establish that at the time the petition 
was tiled, it had either the stat1ing or the organizational complexity to elevate the Beneficiary to an 
executive level. As noted earlier, the Petitioner did not provide evidence to show that it had six 
employees at the time of filing. Based on the number of Form W-2s submitted, the Petitioner had no 
more than four in-house employees at the time of filing; this number included the Beneficiary and 
whom the September 2016 organizational chart identified as a sales manager and whose 
Form W-2 wages indicated that he was either employed for a brief time period or that he received wages 
that were commensurate with those of a part-time employee. We further note that the organizational 
chart that was provided in response to the RFE indicated that the positions of sales manager and sales 
representative were vacant. Thus, while the Petitioner may have employed a sales manager sometime in 
2016, it has not provided evidence to establish that this position was filled at the time of filing. The 
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Matter ofS-C-0-A- LLC 
Petitioner must support its asse11ions with relevant, probative, and credible evidence. See Maller of 
Chawalhe, 25 l&N Dec. 369, 376 (AAO 2010). The Petitioner has not explained who, if not the 
Beneficiary, would take over the sales-related job duties assigned to the sales manager and his/her 
subordinate. Likewise, the record does not establish that the Petitioner employed a financial manager at 
the time of tiling. Despite providing two organizational charts indicating that the Petitioner has 
employed the same individual to manage its finances, it has not provided evidence to show that it paid 
wages· to that individual. Again, it is unclear who, if not the Beneficiary, would assume the financial 
manager's job duties. 
On appeal, the Petitioner contends that the Beneficiary does not perform operational functions, claiming 
that a number of non-executive duties are performed by subordinates who are located in Brazil. The 
Petitioner's organizational charts are consistent with this claim, as both depict a director and a staff of 
nine subordinates, who are claimed to perfonn their work in Brazil. However, the Petitioner has not 
adequately explained how the foreign employees work with the U.S. staff as part of one organization, nor 
has it claritied how these foreign employees support the Petitioner's effort to relieve the Beneficiary from 
having to allocate his time primarily to non-executive job duties in the United States. 
In light of the evidentiary deficiencies described above, we find that the Petitioner has not provided 
sufficient evidence to show that at the time of filing it had the staffing and organizational complexity to 
relieve the Benet!ciary tram having to engage in the daily operational functions that are associated with 
operating a shipping and treight forwarding business. 
B. Duties 
Next, we will determine whether the Petitioner provided an adequate job description to support the claim 
that the Beneficiary would primarily perform executive duties. 
In the initial cover letter, the Petitioner stated that the Beneficiary's proposed posJ!lon involves 
developing and maintaining business contacts to increase business; directing the marketing strategy as 
well as the Petitioner's financial, operations, and sales departments; setting and overseeing the 
implementation of goals and objectives; conducting market research; analyzing investment data; and 
managing the company"s assets and cash flow. The Petitioner also provided a separate job duty 
breakdown with the following duties and time distributions: 
o 25% would be spent directing and coordinating functions and responsibilities, 
maximizing investment returns and productivity, and improving commercial strategies; 
o 20% would be spent directing and formulating financial strategies and relationships with 
customers, suppliers, and distributors; 
o 30% total would be spent directing financial management and developing new business; 
o 15% total would be spent conducting management studies and analyzing financial reports 
to determine which industries to target and collecting and interpreting financial data tor 
budget preparation; and 
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Muller ofS-C-0-A- LLC 
· • I 0% total would be spent on marketing activities, including media appearances, and on 
monitoring operations to ensure legal compliance and compliance with internal 
procedures and policies. 
The Petitioner also described the freight forwarding process, which commences when a shipping 
order is received: continues with shipping coordinators negotiating with transportation companies 
and communicating with customers and destination ports and then collecting and transporting the 
shipment through a carrier; and ends with the issuance of customer and carrier invoices as well as 
airway bills showing the shipping and handling details. The Petitioner did not specify the 
Beneficiary's role with respect to this process or state how the Beneficiary directs the management 
of a coinpany whose main source of revenue comes from participating in this process. 
In the RFE, the Director observed that the Petitioner did provide sufficient evidence to demonstrate 
that the Beneficiary would be employed in an executive capacity and instructed the Petitioner to 
provide a definitive statement describing the Beneficiary's specific daily job duties. The Director 
cautioned the Petitioner against grouping tasks together, and encouraged the Petitioner to list 
individual job duties and indicate the percentage of time the Beneficiary would allocate to each duty. 
In response, the Petitioner provided a statement explaining that it handles shipments of products that 
are imported into and exported out of the United States. Although the Petitioner provided a 
supplemental job description, it did not allocate a percentage of time to the Beneficiary's individual 
daily job duties, but rather grouped job duties together, contrary to the Director's express 
instructions in the RFE. The Petitioner indicated that 30% of the Beneficiary's time would be spent 
creating a weekly shipping plan, which would require the Beneficiary to review shipment orders and 
determine the best mode of transportation based on shipment destinations and the weights and sizes 
of the goods being shipped. The Petitioner stated that the Beneficiary's expertise allows him to 
develop optimal shipping strategies that will maximize profits and reduce operational costs and will 
be implemented by its export coordinators. The Petitioner also stated that 10% of the Beneficiary's 
time would be spent providing guidance in verifying shipment documentation for successful customs 
clearance, establishing a best practice approach to communicating with clients about receipt and 
shipment of products, and providing direction in resolving problems that occur during shipment. 
While we acknowledge that these are critical functions that requires an intimate understanding of the 
shipping industry and discretionary authority to make business decisions, the Petitioner has not 
established that mapping out a weekly shipping plan, navigating through the customs process, and 
ensuring customer satisfaction are executive-level tasks. likewise, we tind that promoting the 
company's business expansion, which would consume 15% of the Beneficiary's time, is a marketing 
and sales-based job duty that does not meet the criteria of executive capacity, despite its value to the 
overall business. 
While the Beneficiary is not required to allocate I 00% of his time to executive-level tasks to meet 
the statutory criteria, the Petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to the proposed position. An employee who "primarily" performs the 
tasks necessary to produce a product or to provide services is not considered to be "primarily" 
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Mauer ofS-C-0-A- LLC 
employed in a managerial or executive capacity. See. e.g., sections IOI(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); Matter of 
Church Scientolo&'Y Int'/, 19 I&N Dec. 593, 604 (Comm'r 1988). 
The job duties listed above and their respective time allocations indicate that the Beneficiary would 
spend his time primarily performing key functions of the shipping business and promoting that 
business within the United States, which are operational, rather than executive-level tasks. In 
addition, the Petitioner stated that another 30% of the Beneficiary's time would be spent directing 
the work of a financial manager by guiding and approving financial transactions and reviewing 
currency exchange rates and international news to instruct the financial manager on the optimal time 
to complete foreign exchange transactions for maximum financial gain. To the extent that the record 
lacks evidence to show that the Petitioner has actually employed a finance manager, the claim that 
30% of the Beneficiary's time would be spent directing a finance manager does not appear valid. If 
USCIS finds reason to believe that an assertion stated in the petition is not true, USCIS may reject 
that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § ll54(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). 
In light of the above analysis, we find that the Petitioner has not provided sufficient evidence to 
establish that the Beneficiary would spend the primary portion of his time performing tasks of an 
executive nature. 
III. ABILITY TO PAY 
Finally, while not addressed in the Director's decision, we find that the record does not contain 
sufficient evidence to establish, as required, that the Petitioner had the ability to pay the 
Beneficiary's proflered wage at the time this petition was filed. 
When filing a Form I-140, a petitioner is required to provide copies of its annual reports, federal tax 
returns, or audited financial statements to establish that it had the ability to pay the beneficiary's 
proffered wage at the time the priority date is established and continuing until the beneficiary obtains 
lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
In the present matter, the Petitioner tiled its Form 1-140 in October 2016. Although the Petitioner 
submitted its federal tax returns for 2014 and 2015, which preceded the year during which this 
petition was tiled, it did not provide any of the evidence specified in 8 C.F.R. § 204.5(g)(2) tor 2016, 
when the instant petition was tiled. In response to the RFE, the Petitioner provided corporate bank 
statements as evidence that it had the funds to pay the Beneficiary's proffered wage. However, as 
indicated above, the applicable regulation contains a list of three forms of acceptable documents that 
the Petitioner "shall" submit to establish its ability to pay; corporate bank statements are not 
included in that list. !d. Although the regulation allows for the additional submission of profit/loss 
statements, bank accounts records, or personnel records, the Petitioner has not provided the types of 
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Maller ojS-C-0-A- LLC 
documents that are specifically enumerated in the regulations. Therefore, the Petitioner has not 
established its ability to pay the Beneficiary's proffered wage as of the time of filing. 
IV. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in the United States in an executive capacity or that it had the ability to pay the 
Beneficiary's proffered wage at the time of filing. The appeal will be dismissed for these reasons. 
ORDER: The appeal is dismissed. 
Cite as Maller ofS-C-0-A- LLC, JD# 1083882 (AAO Mar. 26, 2018) 
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