dismissed EB-1C Case: Trucking And Transportation

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-C-L- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a trucking and transportation company, seeks to permanently employ the Beneficiary 
as its general manager 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). 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) it will employ the Beneficiary in the United States in a managerial 
or executive capacity; and (2) that it has the ability to pay the Beneficiary's proffered wage. 
On appeal, the Petitioner asserts that the Beneficiary will be employed in a managerial capacity 
based on his management of an essential function and responsibility for supervising subordinate 
managers and professionals. The Petitioner further maintains that it has demonstrated its ability to 
pay the Beneficiary's proffered wage.1 
Upon de nova review, we will withdraw the Director's adverse finding regarding the Petitioner's 
ability to pay the Beneficiary's proffered wage.2 However, as the Petitioner has not overcome the 
remaining ground for denial, 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 
1 The Petitioner's brief on appeal also discusses the Beneficiary's employment abroad in a managerial or executive 
capacity, but this issue was not addressed in the Director's decision as a basis for denial. 
2 The Director reviewed the Petitioner's tax returns and determined that the company's net income and net current assets 
were not sufficient to pay the Beneficiary's $45,000 annual salary. However, the Petitioner submitted reliable evidence 
showing that it has been paying the Beneficiary $42,000 annually, and it appears the Director did not consider this 
evidence. The Petitioner's 2016 net income, as reflected in its tax return, was sufficient to cover the difference between 
his current wage and the proffered wage. Accordingly, the Petitioner satisfied the ability to pay requirement at 8 C.F.R. 
§ 204.5(g)(2). 
Matter ofG-C-L- Corp. 
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 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. § 204.50)(3). 
II. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
"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) of the Act. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial or executive capacity. Champion World, Inc. 
v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must 
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. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue in this matter is whether the Petitioner established that it will employ the Beneficiary 
in a managerial or executive capacity in the United States. 
The regulation at 8 C.F.R. § 204.50)(5) requires the petitioner to submit a statement which clearly 
describes the duties to be performed by the beneficiary. Beyond the required description of the job 
duties, we review the totality of the evidence when examining a beneficiary's claimed managerial or 
executive capacity, including the company's organizational structure, the duties of a beneficiary's 
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Matter ofG-C-L- Corp. 
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, our analysis of this issue will focus on the Beneficiary's duties as well as the nature of the 
Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties 
The position description submitted at the time of filing, while lengthy, described the Beneficiary's 
duties as general manager in very broad and non-specific terms. The Petitioner listed generalized 
duties under 12 areas of responsibility that included "strategic plan," "rules & policies," "goals & 
objectives," "operations and procedures," "objectives & reports," '"'organization," "functions," and 
"cooperation," and stated that the Beneficiary would allocate 5 to 10% of his time to each area. The 
associated duties were described in vague terms and without context, and therefore did not provide 
insight into the nature of the Beneficiary's day-to-day tasks as the general manager of a trucking and 
transportation business. Rather, the duties described, such as "develop ... the company's strategic 
plan," "set guidelines and business scope and direction," and "draft ... company rules and policies," 
could describe any senior employee in any company. Reciting a beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F.2d 41 (2d. Cir. 1990). Here, the Petitioner did not provide the necessary detail or an 
adequate explanation of the Beneficiary's activities in the course of his daily routine. 
In response to the Director's request for evidence (RFE), the Petitioner stated that the Beneficiary 
will allocate a total of 60 percent of his time to "general corporate planning," and "general 
administration." These areas of responsibility were also described in vague terms without 
explanation of the nature of the Beneficiary's typical daily tasks. For example, the Petitioner stated 
that he "directs the entire U.S. entity," "establishes corporate objectives and policies," "is the 
ultimate decision maker," makes judgments about how the business will operate, and has authority 
over "other discretionary matters." The Petitioner did not provide explanations or evidence of the 
policies and objectives the Beneficiary is expected to implement, or information regarding the types 
of discretionary decisions he is required to make in support of its claim that these general duties, 
which resemble the definition of "executive capacity," require more than half of his time. 
Conclusory assertions regarding the Beneficiary's employment capacity are not sufficient. Merely 
repeating the language of the statute or regulations does not satisfy the Petitioner's burden of proof. 
Fedin Bros., 724 F. Supp. at 1108 (E.D.N.Y. 1989); Avyr Assocs., Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). 
The Petitioner indicated that the Beneficiary will spend an additional 35% of his time on "business 
development" and "marketing and sales of trucking and dispatching service." The Petitioner 
indicated that his "business development" responsibility will involve maintaining good relationships 
with direct shippers and brokers, but did not provide sufficient detail to establish that his business 
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Matter of G-C-L- Corp. 
development tasks will be performed at a managerial or executive level. Similarly, the Beneficiary's 
"marketing and sales" responsibilities include surveying clients, tracking competitors' prices 
assessing customer requirements, and evaluating potential services, duties that are not clearly 
managerial or executive in nature. The Petitioner states that he "supervises marketing policy," and 
supervises "marketing and logistics strategy"; however, as discussed further below, the Petitioner 
has not corroborated its employment of most of the employees who are claimed to staff its marketing 
and logistics departments. Finally, the Petitioner indicates that the Beneficiary would allocate his 
remaining time (5%) to the oversight of "investment" and GPS technology development activities 
carried out by subcontractors whose work for the petitioning company is not documented in the 
record. 
Overall, the job description submitted in response to the RFE did not provide additional insight into 
the nature of the Beneficiary's actual day-to-day duties. Whether the broad duties attributed to the 
Beneficiary qualify as managerial or executive in nature depends in large part on whether the 
Petitioner established that he would have sufficient subordinate staff to supervise and to perform the 
day-to-day company activities he is claimed to manage or direct. As discussed further below, the 
Petitioner has not shown its ability to relieve the Beneficiary from significant involvement in the 
operational tasks required to operate its business. 
The fact that the Beneficiary will manage a business as its senior employee does not necessarily 
establish eligibility for classification as a multinational manager or executive. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" managerial or executive in 
nature. Section 101(A)(44)(A) of the Act. Even though the Beneficiary may exercise discretion 
over the Petitioner's operations and possess authority with respect to discretionary decision-making, 
the position description alone is insufficient to establish his employment will be in a managerial or 
executive capacity. 
B. Staffing and Organizational Structure 
The Petitioner states that it operates primarily as a trucking company and receives work orders 
through direct shippers or through brokers with which it has signed carrier agreements. The 
Petitioner states that upon receipt of a work order, it dispatches its own company drivers or assigns 
the work to sub-contracted owner-operators. The Petitioner also states that it engages in the sale of 
imported truck tires, provides services to Chinese investors who are interested in the U.S. trucking 
industry, and is developing GPS and other technology services for drivers and fleet companies. The 
Petitioner's trucking activities and carrier agreements are well-documented in the record, but it is 
unclear to what extent it was engaged in tire sales, investment-related activities, or GPS development 
work at the time of filing in April 2016. 
The Petitioner claimed 17 employees on the Form 1-140 and submitted an organizational chart which 
identifies 21 individuals by name. The chart identified nine individuals claimed to be payroll 
employees, eight staff paid as contractors on IRS Form 1099 (including five drivers); two "HlB 
candidates ... working as intern graduates"; and two "sub-contractors." The Petitioner re-submitted 
the same organizational chart in response to a request for evidence (RFE), and again on appeal. The 
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Matter <?fG-C-L- Corp. 
chart shows the Beneficiary as general manager and indicates that he will directly supervise four 
department managers (identified as managers of the management, marketing, logistics, and 
investment departments). 
We agree with the Director's determination that the record does not establish that the structure and 
staffing levels depicted in the organizational chart were in place at the time of filing. Looking first 
at the Petitioner ' s nine claimed payroll employees, the supporting evidence shows the following: 
Name 
Beneficiary 
Title 
General Manager 
Vice GM, Logistics Mgr. 
Secretary/HR & Client Rel. 
Manager 
Financial Manager 
Dispatch & Coordinator 
Marketing Manager 
Paralegal 
Paralegal 
2015 wages 
$42,000 
$31,100 
$25,500 
$36,000 
$28,200 
$0 
$0 
$13,848 
$0 
2016 wages
3 
$42,000 
$2800 (paid in January only) 
$0 
$31,000 
$2500 (paid in January only) 
$5000 (January/February only) 
$1513 (paid in January only) 
$3,528 (January/February only) 
$14,112 
Therefore , at the time 
of filing in April 2016, the Petitioner had three payroll employees , not nine as 
indicated on its organizational chart. The evidence shows that it maintained this staff of three 
employees throughout 2016 before reducing its payroll to two employees during the second quarter 
of 2017. The Petitioner has not provided evidence of non-payroll payments made to these 
employees ( other than the "outside labor" already mentioned) and therefore has not established that 
it employed the vice general manager , logistics manager, "secretary/HR and client relations 
manager," financial manager, dispatcher , or marketing manager at the time of filing. 
With respect to the contractor and subcontractor staff members identified on the organizational chart 
(excluding drivers and interns), the Petitioner documented the following payments :4 
Name Title 
Investment Dept. Mgr. 
Maintenance & Repair 
Marketing Dept. Specialist 
2015 Form 1099 
$11,111 
$12,450 
$31,543 
2016 Form 1099 5 
Not issued 
Not issued 
$16,562 
3 The Petitioner reported additional payments of $2600 to and $4454 to as "outside labor" on its 2016 
tax return, but did not issue either employee a Form 1099. 
4 We acknowledge that the Petitioner issued a total of 16 IRS Forms 1099 in 2016, and that it reported 32 payments to 
"outside labor" on its 2016 tax return. However, many of these payments were made to persons and entities whose roles 
have not been identified and we cannot determine that they were providing services to the Petitioner as of April 2016. 
5 The Petitioner reported payments of $24,334 to and $55,551 to as "outside labor" on its 2016 tax 
return. It is unclear why these amounts did not match their Form I 099 payments. 
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Matter ofG-C-L- Corp. 
Truck Tires Sales Rep. 
GPS & OBD Support 
$7950 
Not issued 
$46,407 
Not issued 
Therefore, as with the Petitioner's payroll employees, there are discrepancies between the number of . 
contractors and subcontractors depicted in the organizational chart, and the Petitioner's evidence of 
payments made to these staff. The Petitioner must resolve these inconsistencies 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). Although the Director emphasized the discrepancies between the organizational 
chart and payroll/wage evidence in her decision, the Petitioner has not addressed the inconsistencies 
or the company's staffing on appeal and simply resubmits the same chart. 
Absent some explanation for the discrepancies, we have determined that the Petitioner's documented 
staff as of the date of filing included the Beneficiary, the manager of the "management department," 
one paralegal, a marketing department specialist, a tire sales representative, and a number of truck 
drivers. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. The term "function manager" 
applies generally when a beneficiary does not supervise or control the work of a subordinate staff 
but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary will 
manage an essential function, it must clearly describe the duties to be performed in managing the 
essential function. In addition, the petitioner must demonstrate that "(1) the function is a clearly 
defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the beneficiary will 
primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level 
within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary 
will exercise discretion over the function's day-to-day operations." Matter of G- Inc. , Adopted 
Decision 2017-05 (AAO Nov. 8, 2017). 
On appeal, the Petitioner asserts that its main function is "supplying transportation service and 
dispatch service," and it claims that the Beneficiary primarily manages this essential function by 
directing "the entire U.S. entity." While we do not doubt the Beneficiary's senior position in the 
petitioning company, the Petitioner has not established that he would primarily manage the 
company's essential function by virtue of being the general manager of the company. Further, the 
Petitioner's assertion that he is a function manager is predicated on its claim that the company has 
"marketing and logistics managers, dispatchers," and other "sub-managers" who perform the 
function of marketing, selling and providing the company's services. As already discussed, the 
Petitioner has not established that it employed most of the workers depicted on its organizational 
chart when it filed this petition and has not documented the various staff who are claimed to relieve 
the Beneficiary from involvement in the day-to-day, non-managerial activities of the company. In 
addition, as addressed above, the Petitioner has not provided a detailed position description for the 
Beneficiary sufficient to establish that he would primarily perform managerial duties. 
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Matter ofG-C-L- Corp. 
The Petitioner claims, in the alternative, that the Beneficiary qualifies as a multinational manager 
based on his supervision of "professional managers." Personnel managers are required to primarily 
supervise and control the work of other supervisory, professional, or managerial employees. 
Contrary to the common understanding of the word "manager," the statute plainly states that a "first 
line supervisor is not considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are professional. "6 Section 
101(a)(44)(A) of the Act. If a beneficiary directly supervises other employees, the beneficiary must 
also have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3). 
On appeal, the Petitioner asserts that the Beneficiary supervises two "professional team leaders," 
who work for the subcontractor claimed to assist the Petitioner with the design of 
OPS applications to assist the Petitioner's drivers and dispatchers. However, the Petitioner has not 
documented payments to ·or its employees, submitted a copy of its agreement with _ 
or otherwise submitted evidence to establish that the Beneficiary supervises these professionals as 
part of his day-to-day routine. In fact, the Petitioner stated that he would spend less than 5% of his 
time supervising the activities of this claimed subcontractor. 
The Petitioner also consistently claims that the Beneficiary will supervise four department managers 
who are claimed to have educational credentials ranging from "university graduate" to an MBA. 
However, as discussed above, only one of these employees - the "general management department 
manager" - was being paid by Petitioner at the time of filing, and the Petitioner has not shown that 
either of this manager's subordinates were still with the company as of April 2016. It is unclear 
what duties this employee would actually perform as the sole employee of her department, and the 
Petitioner has not established that she would be employed as a manager, supervisor, or professional. 
The Petitioner also provided evidence that the part-time paralegal in its "investment" department has 
an LLM degree, but did not provide a description of duties sufficient to establish that this individual 
would be employed in professional capacity. Further, this employee appears to have left the 
company in 2017 while the petition was pending. Again, while the Petitioner submitted an 
organizational chart that appears to show the Beneficiary's supervision of subordinate managers or 
supervisors , the Petitioner did not submit sufficient evidence to corroborate the structure and staffing 
depicted in that chart. 
We have also considered whether the Petitioner established that the Beneficiary would be employed 
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 
6 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession " to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation") . Section IO I (a)(32) of the Act, states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
Matter ofG-C-L- Corp. 
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. 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. Here, although the Petitioner consistently indicates that the 
Beneficiary develops its goals and policies, makes discretionary decisions, and directs the entity as a 
while, it has not supported its claim that he primarily performs these higher-level functions, and has 
not shown how he is relieved from involvement in the day-to-day operations of the company. 
The Petitioner correctly observes that we must take into account the reasonable needs of the 
organization and that a company's size alone may not be the only factor in determining whether the 
Beneficiary is or would be employed in a managerial or executive capacity. See section 
101(a)(44)(C) of the Act. However, it is appropriate 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. Family Inc. v. USCIS, 469 F.3d 1313 
(9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a 
company may be especially relevant when we note discrepancies in the record. See Systronics, 153 
F. Supp. 2d at 15. 
The Petitioner states that it provides trucking services through carrier agreements, acts as a 
dispatcher for truck owner-operators, markets and sells truck tires, develops GPS and on-board 
diagnostics (OBD) technology for drivers, and provides services to Chinese clients interested in 
investing in the U.S. trucking and transportation industry. Although it claims to have a staff of at 
least 16 employees and contractors (not including drivers), it has documented its employment of (or 
contract relationship with) only the Beneficiary, a "management department" manager, a paralegal, a 
marketing specialist, and a tire sales representative. It has not shown how it is able to operate three 
separate lines of business with this staff and has not shown that it requires the Beneficiary to 
primarily perform managerial or executive duties. 
Further, even if we consider only the Petitioner's primary business of providing truck transportation 
and dispatch services, the record does not demonstrate that it employed the logistic department 
manager, marketing department manager, dispatcher, or mechanic when it filed the petition. As the 
Petitioner repeatedly submits the same organizational chart even after being informed that the record 
does not corroborate the staffing or structure depicted in the chart, we are unable to determine how 
work is actually allocated among the Beneficiary and his four subordinate staff members. The 
Petitioner has established that it employs a sufficient number of drivers, but has not shown who 
performs most of the other operational, administrative, and other non-managerial tasks required for 
the company to do business. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufficiently relieved from involvement in the day-to-day operations of the company, despite his 
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Matter ofG-C-L- Corp. 
senior position in the company hierarchy. Accordingly, the Petitioner has not met its burden to 
show that his duties would be primarily managerial or executive in nature as of the date of filing. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in the United States in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofG-C-L- Corp., ID# 1520129 (AAO Sept. 19, 2018) 
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