dismissed EB-1C Case: Warehousing And Logistics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : NOV . 30, 2023 In Re: 28841659 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a warehousing and logistics services company, seeks to permanently employ the 
Beneficiary as its general manager I under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ 1153(b )(1 )(C). This classification allows a U.S. employer to 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 record did not 
establish that the Beneficiary's proposed U.S . employment would be in a managerial or executive 
capacity. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(C) of the Act makes an immigrant visa 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. 
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). In addition, a petition for a multinational 
manager or executive must be accompanied by evidence that the prospective United States employer has 
1 Although the Beneficiary's position is identified as "general manager" on the Form I-140 petition, the Petitioner also 
identifies the Beneficiary 's position as CEO throughout the record. 
the ability to pay the proffered wage from the time the petition 1s filed and continuing through 
adjudication. See 8 C.F.R. § 204.5(g)(2). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that the Beneficiary 
would be 
employed in the United States in an executive capacity. 2 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. 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 its broad 
goals and policies, 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. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must 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). In determining whether a given beneficiary's 
duties will be primarily executive, we consider the petitioner's description of the 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 and its staffing levels. 
A. Job Duties 
The Petitioner's initial supporting letter claimed that its company, a subsidiary ofl II l3 provides trucking and delivery services for U.S. based 
distributors. According to the Petitioner, I I is located in the same warehouse facility as the 
Petitioner. The Petitioner stated that the Beneficiary "will be asked to preside over both over the 
operations of both [the Petitioner] and I l" noting that the Petitioner is the sponsoring entity 
because it "has greater financial strength." 
2 The Petitioner did not claim that it seeks to employ the Beneficiary in a managerial capacity. 
3 The record demonstrates thatl lis a subsidiary o~ lthe Beneficiary's foreign employer. 
2 
The Petitioner also summarized the Beneficiary's proposed duties as follows: 
% of Time Job Duties 
25% Upon developing the business plan, the CEO will have extensive 
conversations with his direct subordinates (i.e. department managers) to 
share his vision and the short-term and long-term target. The CEO and 
departmental managers together will brainstorm on what actions to take 
to realize these targets. For example, the CEO will prioritize the 
improvement of the company's service quality. The marketing manager 
will then propose ways to improve customer communication, product 
trackability, and customs clearance so that the incremental gains result in 
the large jump in service quality. Subsequently, the CEO will have 
weekly meetings with the direct reports to follow up and the progress 
being made in these areas. 
20% Based on directives from the foreign parent company and I I the 
CEO will develop strategic plans to advance [the Petitioner's] mission to 
become a reliable and trusted provider of logistics and warehousing 
services. Initially, the CEO will have extensive conversations with his 
direct reports to understand the operational, financial and labor conditions 
of [the Petitioner]. Based on this information, the CEO will conduct 
SWOT analysis and leverage the company's strength to capture greater 
business growth. The CEO will report back to the foreign parent 
company and I I on his strategies and the progress that [the 
Petitioner] has been making. 
15% On a daily basis, the CEO will also indirectly oversee the warehousing 
and dispatching activities of [ the Petitioner] by staying in constant contact 
with the operations manager through instant messaging systems. During 
these communications, the CEO will give inputs and directives to 
remediate any emerging and urgent issues. The CEO will also consider 
and adopt ideas submitted by subordinates that can improve the 
company's bottom line. 
15% In conjunction with establishing the business plan, the CEO will also 
determine the annual budget of the company and regularly communicate 
with the Accountant to monitor any significant budget variances. The 
CEO will also direct the Operations Manager and Accountant to identify 
the bottlenecks in [the Petitioner's] logistics operations and take proactive 
measures to reduce losses due to scheduling, demand, and cost 
fluctuations. 
10% Based on the CEO and [the Petitioner's] foreign parent company's 
professional and business relationships in Asia, the CEO will reach out to 
potential customers, such as vendors and manufacturers, to bring in 
additional business into the petitioner to boost its growth. Business 
development activities that the CEO would participate in include[e] 
personally hosting and negotiating with executives of potential customers 
in their visits to the petitioners offices. 
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10% The CEO will evaluate the performance of management-level employees 
with informal job assessments and quarterly evaluation reports. During 
these evaluation periods, the CEO will give his direct subordinates insight 
on areas that the subordinates are exceeding expectations and areas that 
require greater effort. The CEO will also consider the direct reports' 
recommendations on employee hiring and promotion and give consent 
when merited. 
5% The CEO will work with the direct subordinates and outside consultants 
to develop employee policy handbooks and safety standards. In 
particular, the CEO will inspect the warehouse premises on a weekly 
basis to determine that all product handling and storage processes [ are 
conducted] in a professional, efficient, and safe manner. 
The Director issued a request for evidence (RFE), noting that the initial description of duties and 
supporting evidence was insufficient to establish that the Beneficiary would be employed in a 
primarily managerial or executive capacity. In response, the Petitioner provided additional 
documentation, including an updated description of duties, which expanded on the Beneficiary's U.S. 
position as follows: 
% of Time Job Duties 
25% Duty: Develop high quality business strategies and plans ensuring their 
shipment with short-term and long-term objectives. 
Sample Tasks: 
Based on directives from the directors of the foreign parent• 
company and I Ithe CEO will develop strategic plans to 
advance [the Petitioner's mission to become a reliable and 
trusted provider of logistics warehousing services. 
In order to come up with the plan, the CEO will have extensive • 
conversations with his direct reports to understand the 
operational, financial and labor conditions of [ the Petitioner], the 
target market, competitors offerings and pricing, and relationship 
with shipping partners. 
Based on this information, the CEO will conduct a SWOT• 
analysis to better assess [the Petitioner's] competitive position 
within the industry. 
• The CEO will then resent f° other stakeholders of the foreign 
parent company and on his SWOT analysis and present 
his short-term and long-term goals that contain both quantitative 
(sales, profit margins) and qualitative (service quality, company 
culture) measurements. 
On a quarterly basis, the CEO will have follow-up strategy• 
sessions with the stakeholders where he reports on the major 
financial and operational milestones of [ the Petitioner] and 
discusses areas for improvement. 
4 
25% Duty: Determine strategies to achieve long term objectives and analyze 
short term problematic situations and occurrences and provide solutions 
to ensure company survival and growth. 
Sample Tasks: 
• Pursuant to its business plan, the CEO will have frequent 
conversations with his direct subordinates (i.e. the department 
managers) to share his vision and the short-term and long-term 
expectations. 
• In these conversations, the CEO and his subordinates will 
brainstorm on ways to utilize the company's available resources 
to realize these targets. For example, the CEO will prioritize the 
improvement of the company's service quality. The Marketing 
Manager will then propose ways to improve customer 
communication, product trackability, and customs clearance so 
that the incremental gains result in the large jump in service 
quality. The CEO will also seek inputs from operations manager 
on how to increase profit margins, which may include proposals 
to negotiate better rates with customers through strengthening of 
business relationships, and better forecasting. 
• To measure the performance of each department, the CEO will 
instruct his direct subordinates to create KPis to better assess the 
operational efficiencies of the business. For example, the CEO 
will work with the Operations Manager to monitor the 
company's performance on areas of order and inventory 
accuracy, product defect rate, and price competitiveness. With 
the Marketing Manager, the CEO will track the Company's 
customer order cycle and inventory turnover, the fulfillment 
accuracy rate. With the Accountant the CEO will track current 
ratio and accounts receivable turnover. 
• To track the company's performance, the CEO will have weekly 
meetings with the director reports to follow up on the progress 
being made in these areas as measured by KPis. During these 
m-person meetings, the direct subordinates ( department 
managers) will summarize the notable progress within their 
respective departments. The CEO will then offer constructive 
feedbacks to empower his direct subordinates to resolve any 
impediments that they encounter in their daily management of 
their respective departments. 
15% Duty: Oversee all operations and business activities to ensure they 
produce the desired results and are consistent with the overall strategy 
and mission. 
Sample Tasks: 
• The CEO will monitor the warehousing and dispatching 
activities of the petitioner by staying in constant contact with his 
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direct subordinates through instant messaging systems such as 
W echat or by phone. 
• During these conversations, the department managers often bring 
up issues encountered in their management of the department's 
operations and possible solutions. 
• Communications, the CEO will give inputs and directives to 
remediate any emerging and urgent issues. The CEO will also 
consider and adopt submitted by subordinates that can improve 
the company's bottom line by incorporating them in the 
company's business plan. 
15% Duty: Review financial and non-financial reports to devise solutions or 
improvements. 
Sample Tasks: 
• In conjunction with establishing the business plan, the CEO will 
also determine the annual budget of the company based on input 
from key subordinates on the fiscal needs of each department and 
regularly communicate with the Accountant to monitor any 
significant budget variances. 
• During CEO's regular communications with department 
managers, he will monitor the departments financial position to 
ensure that it is consistent with the budget. 
• The CEO will weigh in on the needs to raise funds, as well as 
how to make the best use of the surplus capital - including 
making ultimate decisions on when to accelerate repayment of 
debt, make distribution to shareholders, or reinvest in capital 
projects. 
• The CEO will also assess market and investment opportunities, 
such as acqumng competitors or assets to accelerate the 
company's growth. 
10% Duty: Build trust relations with key partners and stakeholders and act as 
a point of contact for important shareholders. 
Sample Tasks: 
• Based on the CEO and [the Petitioner's] foreign parent 
company's professional and business relationships in Asia, the 
CEO will reach out to potential customers, such as vendors and 
manufacturers, to bring m additional business into [the 
Petitioner] to boost its growth. 
• Business development activities that the CEO would participate 
in including personally hosting customers in their visits to [the 
Petitioner's] offices. 
10% Duty: Review internal reports pertaining to job performance, 
qualifications and contributions, the assess personnel needs. 
Sample Tasks: 
6 
• The CEO will evaluate the performance of management-level 
employees with job assessments and quarterly evaluation reports. 
During normal business operations, the CEO will note particular 
contributions made historic subordinates. During quarterly 
evaluation, the CEO will spend time with his direct subordinates 
to commend on areas where they are exceeding expectations and 
the areas that require greater effort. 
• When the department's performance exceeds the goals previous 
established, the CEO will be at discretion to offer performance 
bonuses to both the department managers and allocate bonus 
pool for the departments' employees. 
• The CEO also will consider the direct reports' recommendations 
on employee hiring and promotion and give consent when 
merited. 
5% Duty: Establish, update and enforce adherence to legal guidelines and 
in-house policies to maintain the company's legality and business ethics. 
Sample Tasks: 
• The CEO will work with the direct subordinates and outside 
consultants to develop employee policy handbooks and safety 
standards and instruct his department managers to disseminate 
these materials to employees. 
• The CEO will inspect the warehouse premises on a weekly basis 
to determine that all product handling and storage processes [ are 
conducted] in a professional, efficient, and safe manner. When 
the warehouse operations do not meet such standards, the CEO 
will give instructions to the Warehouse Manager to take 
immediate corrective actions. 
In denying the petition, the Director determined that the Petitioner's description of the Beneficiary's 
duties was insufficient, noting that the duties as stated were general and vague and did not convey the 
true nature of the Beneficiary's position. On appeal, the Petitioner asserts that Director's decision was 
arbitrary and capricious, and again emphasizes that the duty description was sufficient. 
The Petitioner also claims on appeal that the Director failed to apply the preponderance of the evidence 
standard and contends that it is clear that the Beneficiary will be employed in a primarily executive 
capacity. However, the Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. at 376. For the reasons outlined below, the Petitioner 
did not demonstrate that the Beneficiary's role will be primarily executive in nature, as the job 
description the Petitioner offered contains generalities that preclude a meaningful assessment of the 
Beneficiary's actual tasks in the course of the Petitioner's daily operation. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that his duties are "primarily" executive. See section 10l(a)(44)(B) of the Act. 
Here, the Petitioner provided job descriptions for the Beneficiary's proposed U.S. position, 
7 
I 
highlighting his top-level placement within both the Petitioner's and I I organizational 
hierarchies and underscoring his discretionary authority over each entity's operations, personnel, and 
finances. The information pertaining to the Beneficiary's role within the petitioning entity, however, 
failed to distinguish the job duties the Beneficiary intends to perform in his position with the Petitioner 
from those he plans to perform in his position withl Ithe Petitioner's U.S.-based parent entity. 
The Petitioner indicated that the Beneficiary would develop business strategies and plans for and in 
conjunction withl Iand claimed that the Beneficiary will preside over the operations of both 
companies simultaneously. The Form 1-140 petition, however, clearly namesl 
Das the petitioning entity. A corporation is a separate and distinct legal entity from its owners or 
stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite 
Investments Limited, 17 I&N Dec. 530 (Comm'r 1980); and Matter ofTessel, 17 I&N Dec. 631 (Act. 
Assoc. Comm'r 1980). Here, the Petitioner is the intended permanent U.S. employer and it must show 
that it can support an executive position independent from I I The Beneficiary may intend to 
perform duties for both entities, but cannot rely on his duties forl Ito establish his qualifying 
employment with the Petitioner. As constituted, the record is unclear with regard to what percentage 
of time will be devoted to the direction and management ofl Iand what percentage of time will 
be performed in directing and managing the Petitioner. Given the lack of a detailed account of the 
Beneficiary's job duties and oversight of subordinates within the context of the Petitioner's business, 
we cannot conclude that the petitioning entity has either the need or the capability to employ the 
Beneficiary in a capacity that is executive such that the primary portion of his time would be spent 
performing tasks of a qualifying nature. 
USCIS cannot approve a petition without a clear explanation of the job duties the Beneficiary would 
be expected to perform. Reciting a beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient. The actual duties themselves 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). While the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and 
possesses decision-making authority, the position description does not establish that his day-to-day 
duties would be primarily executive in nature. 
B. Staffing and Organizational Structure 
Beyond the required description of the job duties, we also 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. 
On the Form 1-140 petition, the Petitioner claimed that it was established in 2019 and had 10 
employees. The Petitioner provided a general overview of its staffing, and in its organizational chart 
it indicated that the Beneficiary was supported by an accountant, a marketing manager, an operations 
manager, a dispatcher, a warehouse supervisor, two customer service representatives, and two 
warehouse operators. The Petitioner also claimed that it outsourced drivers. 
Again, the statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
8 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. 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 its broad 
goals and policies, rather than on its day-to-day operations. An individual will not be deemed an 
executive under the statute simply because they have an executive title or because they "direct" the 
organization as the owner or sole managerial or executive employee. 
The Petitioner provided a copy of its IRS Forms 941, Employer's Quarterly Tax Returns, for the first 
and second quarters of 2021, indicating that the Petitioner employed only four people during the first 
quarter and five people during the second quarter. Although copies of paystubs for July 2021 were 
also submitted, the Petitioner submitted no additional Form 941 records for the third and fourth 
quarters of 2021. The Petitioner also submitted copies ofIRS Forms W-2, Wage and Tax Statements, 
for 2021, demonstrating that through the course of the year it employed 15 people. The Petitioner also 
submitted copies of Forms W-2 forl Iemployees, indicating that the company employed 10 
individuals in 2021. 
It is unclear how many individuals were employed by the Petitioner at the time the petition was filed. 
While the record contains quarterly tax returns and payroll records through July 2021, the Petitioner 
did not submit pay stubs or payroll records demonstrating how many individuals it employed at the 
time this petition was filed in January 2022. Moreover, the organizational chart submitted indicates 
that four of the Petitioner's claimed employees were actually employees ofI I as evidenced by 
their Forms W-2 for 2021. Therefore, although the Petitioner claimed to employ 10 individuals at the 
time of filing, the record contains contradictions and insufficient evidence to support this assertion. 
The Petitioner must resolve this discrepancy in the record with independent, objective evidence 
pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
On appeal, counsel contests the Director's determination that its claimed staffing of 10 individuals 
"cannot support any position that can satisfy the EBlC regulatory requirements." 4 We acknowledge 
the Director's conclusory statement and agree with the Petitioner that such a conclusion was 
misplaced. However, we exercise de novo review of all issues of fact, law, policy, and discretion. See 
Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). This means that we look at the record anew and 
are not required to defer to findings made in the initial decision. 
With respect to the size of the company, section 101(a)(44)(C) of the Act permits "staffing levels [to 
be] used as a factor in determining whether an individual is acting in a managerial or executive 
capacity," so long as we "take into account the reasonable needs of the organization, component, or 
function in light of the overall purpose and stage of development of the organization, component, or 
function." In this instance, the Petitioner has not established that the company, at the time it filed the 
petition, had a sufficiently complex organizational structure to have a reasonable need for an executive 
position in which the Beneficiary would direct the management of all or part of the organization. 
4 The Petitioner also asserts that the Director's conclusion that the Petitioner operates as a de facto remote worksite for a 
predominantly foreign based production entity is misplaced. While the Director's conclusion may be improper. the record 
as constituted does not establish that the Petitioner possessed the organizational complexity at the time of filing to employ 
the Beneficiary in an executive capacity. 
9 
Here, despite claiming to employ at least 10 employees, the Petitioner did not submit evidence 
establishing its actual employment of these individuals at the time of !ling, aid in fact submits 
evidence that at least four of these claimed employees were employees of not the Petitioner. 
Again, in this matter we examine the organizational structure of the Petitioner, not I I In the 
absence of evidence such as pay stubs and payroll records, the Petitioner has not corroborated its 
claimed organizational structure, nor has it established that it employed a subordinate staff that would 
relieve the Beneficiary from performing non-qualifying duties. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 
376. 
While the definition of "executive capacity" does not require the Petitioner to establish that the 
Beneficiary supervises a subordinate staff comprised of managers, supervisors and professionals, it is the 
Petitioner's burden to establish that someone other than the Beneficiary carries out the day-to-day, 
non-executive functions of the organization. Here, the Petitioner did not demonstrate that a subordinate 
staff was available at the time of filing to perform the non-qualifying operational and administrative 
duties of the business, nor does the submitted position description establish that his duties are primarily 
executive in nature. Accordingly, the Petitioner has not established that the Beneficiary would be 
employed in the United States in an executive capacity as defined at section 10l(a)(44)(B) of the Act. 
III. CONCLUSION 
For the 
reasons discussed above, the Petitioner has not established by a preponderance of the evidence 
that the Beneficiary would be employed in the United States in an executive capacity. Accordingly, 
the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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