dismissed EB-1C Case: Wholesale Diamond Business

U.S. Citizenship 
and Immigration 
Services 
In Re : 25493061 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 02, 2023 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner , a wholesale diamond business , seeks to pennanently employ the Beneficiary as its 
general manager under the first preference immigrant classification for multinational executive s 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 a managerial or executive capacity . 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that: ( 1) the Beneficiary would be employed in the United States in a managerial or executive 
capacity; (2) the Petitioner has the ability to pay the proffered wage ; and (3) the Petitioner has a 
qualifying relationship with the Beneficiary's last foreign employer. The Petitioner subsequently filed 
a combined motion to reopen and reconsider. The Director granted the motion, addressed the 
arguments and new evidence presented , and issued a new decision denying the petition on the same 
three grounds. 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 Christa 's, Inc., 26 I&N Dec. 537 , 537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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)(l)(C) of the Act. 
A petition for a multinational manager or executive must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has the 
requisite one year of employment abroad in a managerial or executive capacity , that the beneficiary is 
coming to work in the United States for the same employer or a subsidiary or affiliate of the foreign 
employer in a managerial or executive capacity, 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)(A)-(D). 
In addition, any petition filed for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective U.S. employer has the ability to 
pay the proffered wage. The petitioner must demonstrate this ability 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). 
II. ABILITY TO PAY 
The Director denied the petition, in part, based on a determination that the Petitioner did not establish 
its ability to pay the proffered wage. The Petitioner indicated on the Form I-140, Immigrant Petition 
for Alien Worker, that it will compensate the Beneficiary at an annual rate of $75,000 and must 
establish its continuing ability to pay this amount from the date it filed the petition in June 2021. 
Evidence of a petitioner's ability to pay must be in the form of copies of annual reports, federal tax 
returns or audited financial statements. See 8 C.F.R. § 204.5(g)(2). In determining a petitioner's 
ability to pay the proffered wage, we will first examine whether the Petitioner employed the 
Beneficiary at the time of filing. If a petitioner submits documentation demonstrating that it employed 
the beneficiary at a salary equal to or greater than the proffered wage, this evidence will be considered 
prima facie proof of a petitioner's ability to pay. 
The record reflects that the Beneficiary was in the United States in L-1 nonimmigrant status at the 
time of filing. The Petitioner provided a copy of its IRS Form 1065, Return of Partnership Income, 
for 2021, which indicates at Schedule K-1, Part III that the Beneficiary received $75,000 in 
"Guaranteed Payments for Services" in 2021. Other evidence in the record corroborates that the 
Petitioner made monthly payments to the Beneficiary equal to this amount in 2021 and that it continued 
to pay him $6,250 monthly in 2022. The Director did not consider this evidence in evaluating the 
Petitioner's ability to pay and based the determination solely on the net income and net current assets 
reported on its 2021 tax return. However, we find the evidence discussed above sufficient to establish, 
by a preponderance of the evidence, the Petitioner's ability to pay the proffered wage. Accordingly, 
the Director's determination with respect to this ground for denial is withdrawn. 
III. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director also denied the petition based on a determination that the Petitioner did not establish that 
it would employ the Beneficiary in a managerial or executive capacity. We note that the Petitioner 
has consistently asserted in its supporting statements that the offered position of general manager is in 
an executive capacity; it has not articulated a claim that the Beneficiary would be employed in a 
managerial 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 
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executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
To establish that a beneficiary is eligible for immigrant classification as a multinational executive, a 
petitioner must show that the beneficiary will perform all four of the high-level responsibilities set 
forth in the statutory definition at section 101(a)(44)(B) of the Act. If a petitioner establishes that the 
offered position meets all four elements set forth in the statutory definition, the petitioner must then 
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 the beneficiary's duties will be primarily 
executive, we consider the description of the job duties, the company's organizational structure, the 
duties of the 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 the beneficiary's actual duties and role in the business. 
At the time of filing, the Petitioner described the Beneficiary's duties as follows: 
• Manages the operation of [the Petitioner's] sale[s] and marketing departments; 
• Cooperates with the directors to grow the company ... ; 
• Represents [the Petitioner] during attendance of important functions, business events ... ; 
• Prepares annual budgets, completes risk analysis on potential investments; 
• Makes decision regarding hiring/firing staff, payroll, and benefit disbursement; 
• Develops [Petitioner's] expansion plan regarding new services, including e-commerce, at 
national and international levels; 
• Trains and manages the managers and assistants; 
• Performs financial analysis and review financial and non-financial reports . . . in 
cooperation with outsourced accountant; 
• Works with an outsourced legal counsel regarding any business questions involving legal 
issues; 
• Negotiates with landlords regarding commercial leases; 
• Endorses promotional and marketing strategies; 
• Establishes internal databases and record management systems ... ; 
• Manages inventory turnover. 
An organizational chart submitted at the time of filing indicates that the Petitioner had one employee, a 
sales executive, who reported to the Beneficiary. The Petitioner provided evidence that this employee 
was hired in December 2020 and earned $1800 that month but did not include a description of this 
individual's duties or evidence of wages paid to him in 2021. Without this evidence, we cannot determine 
whether or to what extent this employee was available to relieve the Beneficiary from involvement in 
administrative and operational tasks as of the date of filing. Further, notwithstanding the Petitioner's 
assertion that one of the Beneficiary's primary duties is managing the operation of its "sales and marketing 
departments," the organizational chart did not identify these departments. The Petitioner also did not 
provide evidence that it employs the "managers and assistants" mentioned in the Beneficiary's job 
description, or evidence that it had contracted the services of an "outsourced accountant" to assist with 
the company's finance-related activities. The Petitioner's reference to the Beneficiary's oversight or 
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collaboration with departments, employees, and contractors that are not otherwise documented in the 
record undermines the credibility of the submitted position description. 
While the initial evidence indicated that the Beneficiary had signed the Petitioner's lease agreement, the 
Petitioner did not indicate that the company was in the process of negotiating for additional locations or 
otherwise explain why he would be required to "negotiate with landlords" on an ongoing basis, nor did 
the Petitioner identify the nature or frequency of the Beneficiary's interactions with outsourced legal 
counsel. In addition, the Petitioner did not explain how duties such as managing inventory turnover and 
establishing internal databases are executive in nature. Finally, some of the remaining duties are stated 
in overly general terms that little insight into the nature of the Beneficiary's activities. For example, the 
Petitioner did not indicate what specific tasks he would perform to "endorse" promotional and marketing 
strategies or "cooperate with the directors." Reciting the 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. 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). 
The Director issued a request for evidence (RFE) advising the Petitioner that additional evidence would 
be needed to establish that the Beneficiary would be employed in the United States in a managerial or 
executive capacity. The Director observed that the initial description of the Beneficiary's duties was 
overly broad and that the initial evidence did not sufficiently document the company's staffing levels and 
structure. The Director requested that the Petitioner provide: a more specific description of the nature of 
its business; an explanation of the Beneficiary's specific daily tasks and the percentage of time allocated 
to each task; a detailed organizational chart identifying the company's structure and staffing levels; 
information regarding all employees and contractors who report to the Beneficiary; and evidence of wages 
paid to employees and contractors. 
The Petitioner's response to the RFE, submitted in July 2022, included: a letter from the Petitioner which 
includes a description of the Beneficiary's duties as general manager; a copy of the Petitioner's business 
plan dated November 2019, which includes the same job description; an updated organizational chart; 
and evidence of wages paid to employees for all four quarters of 2021 and the first two quarters of 2022. 
The Petitioner's updated organizational chart depicts the Beneficiary's oversight of an administrative 
assistant and an operations manager, who, in turn supervises a sales/marketing manager. The chart also 
depicts two full-time sales associates who report to the sales/marketing manager. However, the 
supporting payroll evidence confirms that the only employee on the Petitioner's payroll when the petition 
was filed in June 2021 was the individual identified as a "sales executive" on the initial organization chart. 
Further, the evidence indicates that the Petitioner employed this individual intermittently in 2021, as its 
state quarterly wage reports indicate that he was paid only during the months of January, April, May, 
June, and November. 1 The Petitioner documented that it hired a second employee (the sales and 
marketing manager) in November 2021 and that it briefly employed the administrative assistant during 
the first quarter of 2022. Finally, the evidence shows that the second sales associate and operations 
manager were hired in June 2022 and July 2022, respectively. 
1 The record reflects that the Petitioner made no wage or salary payments to employees ( other than guaranteed payments 
to the Beneficiary) during the third quarter of 2021 and similarly reported no payments to subordinate employees for the 
months of October and December 2021. 
4 
The Director's denial decision included a detailed discussion of the evidence related to the Petitioner's 
staffing. Specifically, the Director emphasized that the Petitioner did not demonstrate that the structure 
and staffing levels described in the RFE response were in place at the time the petition was filed, and that 
employees hired later would not be considered in evaluating whether the Beneficiary would be employed 
in an executive capacity when the petition was filed. See 8 C.F.R. § 103.2(b)(l) (stating that a petitioner 
must establish eligibility for the requested benefit at the time of filing and must continue to be eligible 
through adjudication). The Director also observed that the evidence did not corroborate that the Petitioner 
has consistently employed the sole subordinate employee who was on the payroll at the time of filing. 
Based on this evidence, the Director concluded that the Petitioner did not establish that the Beneficiary 
would be delegating operational, administrative, and other non-executive tasks to subordinate staff or that 
he would otherwise be able to allocate his time primarily to executive duties as defined at section 
10l(a)(44)(B) of the Act. 
In its subsequent combined motions to reopen and reconsider, the Petitioner contended that the Director 
did not consider its organizational hierarchy, the Beneficiary's position in that hierarchy, and the evidence 
of its overall ability to relieve him from having to primarily perform the day-to-day operational duties of 
the company. The Petitioner emphasized that the job description provided in response to the RFE was 
sufficient to establish that the Beneficiary's position is "100% executive in nature." It further maintained 
that it established that the Beneficiary occupies the senior position in a complex hierarchy, and that the 
company is "staffed with highly skilled staff members who are available to carry out non-qualifying 
duties." 
As noted, the Director affirmed the denial of the petition, emphasizing that the record does not establish 
that the subordinate staff who are claimed to relieve the Beneficiary from performing operational and 
administrative tasks were employed by the Petitioner when it filed the petition in June 2021. 
On appeal, the Petitioner asserts that "with respect to the varying number of employees while the petition 
was pending, the number ranges from O to 5 but part of that is due to the uncertainty of the approval of 
the petition." Nevertheless, the Petitioner asserts that the previously submitted description of the 
Beneficiary's job duties demonstrates that he performs primarily executive duties consistent with the 
statutory definition of"executive capacity." For the reasons discussed below, the Petitioner's assertions 
are not persuasive. 
We acknowledge the Petitioner's contention that the Director's decisions did not reflect full consideration 
of the submitted position descriptions. However, we note that the evidence does not establish that either 
of the submitted descriptions accurately describes the actual tasks he performed at the time of filing. As 
discussed above, the initial description of the Beneficiary's duties indicated that he would be directing 
the operations of separate sales and marketing departments that did not yet exist and overseeing the work 
of subordinate managers and other staff who had not yet been hired. Likewise, the position description 
submitted in response to the RFE was originally prepared for a business plan created in 2019 and therefore 
did not reliably reflect the actual duties the Beneficiary was performing at the time this petition was filed. 
That same business plan included staffing projections and indicated that the Petitioner would hire a 
subordinate operations manager, administrative assistant, purchasing/logistics assistant, and two sales 
representatives during 2020. As ofJune 2021, the Petitioner's staff consisted of the Beneficiary as general 
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manager and one sales employee who worked on an intermittent basis and received wages during only 
one month in the second half of 2021. 
Therefore, while the position description provided in response to the RFE was lengthy and included a 
breakdown with the percentage of time to be allocated to specific tasks, the claimed duties are not 
supported by other evidence in the record. For example, the Petitioner indicated that the Beneficiary 
would spend 45% of his time "directing the management of the organization," noting that this 
responsibility would include "overseeing the company's management team," "meeting with the 
management team weekly," "directing an operations manager who in turn oversees front-line employees 
and contract workers who are responsible for delivering the company's gem products," and other duties 
that including monitoring and overseeing staff Absent evidence that the Petitioner employed an 
operations manager, a "management team," and multiple front-line employees and contract workers, we 
cannot conclude that it provides is an accurate representation of the Beneficiary's duties. We must view 
the position description in the context of the totality of the evidence in evaluating whether the proposed 
employment is in an executive capacity. This position description was evidently intended to describe the 
duties the Beneficiary would perform when the company is fully staffed. The record does not contain a 
description of the Beneficiary's duties at the time of filing when his sole subordinate was a sales employee 
who worked only intermittently. 
USCIS must consider the reasonable needs of the organization in light of the overall purpose and stage 
of development of the organization if staffing levels are used as a factor in determining whether an 
individual is acting in a managerial or executive capacity. See section 10l(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. See Family Inc., 469 F.3d at 1316; Systronics Corp. v. INS, 153 
F. Supp. 2d 7, 15 (D.D.C. 2001). Here, the Petitioner indicates that it has a reasonable need for a staff 
of at least five subordinates and additional contractors to perform the day-to-day operational and 
administrative activities of its company and to support the Beneficiary in the claimed executive 
capacity, but the record indicates that the company had one employee at the time of filing in June 
2021, had no employees during most of the remainder of that year. 
While the record establishes that the Beneficiary is the managing member of the petitioning company and 
occupies the senior position, the fact that he will manage or direct a business as its owner or sole 
supervisory employee does not necessarily establish eligibility for classification as multinational 
executive as defined in the statute. By statute, eligibility for this classification requires that the duties 
of a position be "primarily" executive. Although the Petitioner asserts that the Beneficiary primarily 
performs the high-level duties described at section 10l(a)(44)(B) of the Act, it also claims that he does 
so through subordinate managers and other staff who have not yet been hired by the organization. As 
noted, the Petitioner must establish eligibility for the requested classification at the time of filing and 
must continue to be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). Accordingly, the 
Petitioner's claim that it is minimally staffed "due to the uncertainty of the approval of the petition" is 
not persuasive and does not exempt the Petitioner from its burden to demonstrate that the Beneficiary 
would be employed in an executive capacity from the date of filing. 
For the reasons discussed, the Petitioner has not established that the Beneficiary would be employed in 
an executive capacity in the United States. Accordingly, the appeal will be dismissed. 
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IV. ADDITIONAL ISSUES 
As noted, the Director also concluded that the Petitioner did not establish its qualifying relationship 
with the Beneficiary's foreign employer. Because the identified basis for denial is dispositive of the 
appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments regarding 
remaining ground for denial. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies 
are not required to make findings on issues the decision of which is unnecessary to the results they 
reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
Finally, although not addressed by the Director, the record does not establish that the Beneficiary has 
the required one year of employment abroad with a qualifying entity. Where, as here, a beneficiary is 
already working in the United States for the petitioner at the time of filing, the petitioner must 
demonstrate that the beneficiary's year of foreign employment occurred in the three years preceding 
his or her entry as a nonimmigrant. See 8 C.F.R. § 204.5(i)(3)(i)(B). 2 
The record reflects that the Beneficiary's initial entry to work for the Petitioner as an L-1 
nonimmigrant was on March 10, 2021. 3 Therefore his year of employment abroad must have occurred 
between March 10, 2018 and March 10, 2021. In its initial supporting letter, the Petitioner stated that 
the Beneficiary worked for its claimed affiliate in Hong Kong from July 2016 "until his departure for 
the United States in February of 2020." The foreign entity provided a letter indicating that it employed 
the Beneficiary in an executive capacity from July 1, 2016 until July 1, 2019. 
The record indicates that the Beneficiary graduated from an Indian secondary school in 2016 and 
enrolled as a foll-time undergraduate student atOUniversity in F-1 nonimmigrant student status 
beginning in the fall semester of 2016. The Petitioner provided evidence that he graduated in May 
2019 and was approved for F-1 post-completion optional practical training from July 2019 until July 
2020. The Petitioner submitted the Beneficiary's arrival and departure records indicating that he spent 
933 days in the United States between March 10, 2018 and his initial entry to the United States in L-
1 status on March 10, 2021. As he spent only 162 days outside the United States during the relevant 
three-year period, he did not accrue the required one year of employment abroad. 4 Further, the 
Petitioner has not otherwise explained how the Beneficiary worked overseas in a managerial or 
executive capacity while completing his undergraduate education and post-completion training in the 
United States. Accordingly, the record does not establish that he meets the one year of foreign 
2 In promulgating the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B), the former Immigration and Naturalization Service stated: 
The Service does not feel that Congress intended that nonimmigrant managers or executives who have 
already been transferred to the United States should be excluded from this classification. Therefore. the 
regulation provides that an alien who has been a manager or executive for one year overseas, during the 
three years preceding admission as a nonimmigrant manager or executive for a qualifying entity, would 
qualify. 
56 Fed. Reg. 30703, 30705 (July 5, 1991 ). 
3 The Petitioner filed an L-1 A nonimmigrant petition on the Beneficiary's behalf on July 13, 2020, and requested that the 
U.S. Consulate in Mumbai, India be notified upon approval so that the Beneficiary could obtain a visa and be admitted to 
the United States. The Beneficiary did not depart the United States to apply for his L-1 visa until February 2021. 
4 The arrival and departure records also indicate that the Beneficiary spent most of his time in the United States after 
commencing his studies in F-1 status in September 2016 and throughout 2017. 
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employment requirement for this classification. The Petitioner will need to address this issue in any 
future proceeding in which it seeks the requested benefit. 
V. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in an executive capacity in the 
United States. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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