dismissed EB-1C Case: Wholesale Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re: 10691597 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 23, 2020 
Form 1-140, Immigrant Petition for Multinational Executive or Manager 
The Petitioner, an importer and wholesale distributor, seeks to permanently employ the Beneficiary as 
its chief executive officer (CEO) 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 )(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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required that (1) the Petitioner has a qualifying relationship with the Beneficiary's foreign 
employer; (2) the Beneficiary would be employed in the United States in an executive capacity; and (3) 
the Petitioner has the ability to pay the Beneficiary's proffered wage. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review , the appeal will be dismissed as the 
Petitioner has not overcome two of the three grounds for denial. However, the Petitioner has 
established that it maintains a qualifying relationship with the Beneficiary's prior foreign employer 
and the Director's adverse determination with respect to this single issue is withdrawn. 1 
I. LEGAL FRAMEWORK 
An executive or manager who has worked abroad for at least one year may immigrate to the United 
States to continue to render executive or managerial services to the same employer, or a subsidiary or 
affiliate . Section 203(b)(l)(C) of the Act. If, as in this case, a beneficiary already works in the United 
States for a petitioner, the business must demonstrate that the beneficiary's year of foreign 
employment occurred in the three years preceding his or her entry as a nonimmigrant. 8 C.F .R. 
§ 204 .5G)(3)(i)(B). 
1 The Petitioner has submitted sufficient evidence to establish that it is a ualif in subsidia of the Brazilian entity that 
employed the Beneficiary abroad, ...._~-----------~-----__.b ased on that entity's 
ownership of75% of its issued shares. The Director acknowledged this majority ownership interest, but denied the petition, 
in part, based on a finding that the Petitioner and the foreign entity do not have an affiliate relationship based on common 
ownership and control by the same group of entities or individual s. The Petitioner did not claim that the two entities are 
affiliates. See 8 C.F.R. § 204.5(j)(2) (defining the tenns "subsidiary" and "affiliate"). 
A petitioner for a multinational executive or manager must submit a statement from an authorized 
company official demonstrating that a beneficiary meets the requirements discussed above. 8 C.F.R. 
§§ 204.5(i)(3)(i)(A)-(C). The statement must also establish that the petitioner has been doing business 
for at least one year. 8 C.F.R. § 204.5(i)(3)(D). Further, U.S. Citizenship and Immigration Services 
(USCIS) may request additional evidence. 8 C.F.R. § 204.5(i)(3)(ii). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The first issue to be addressed is whether the Petitioner established that it would employ the 
Beneficiary in an executive capacity. The Petitioner has not claimed that Beneficiaiy would be 
employed in the United States 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 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the Act. 
To be eligible for classification as a Multinational Executive, the Petitioner must show that the 
Beneficiary will perform the high-level responsibilities set forth in the statutory definition of executive 
capacity at section 101 (a)(44)(B)(i)-(iv) of the Act. If the record does not establish that the offered 
position meets all four of these elements, we cannot conclude that it is a qualifying executive position. 
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 beneficiaiy' s actual duties and role in a business. 
A. Job Duties 
The Petitioner states that it imports and distributes products as a sales representative for several 
Brazilian companies. At the time of filing, the Petitioner indicated that the Beneficiaiy, as CEO, would 
allocate his time to the following areas of responsibility: 
1. Establish growth strategy and strategic plans. (25%) 
2. Establish and review goals, policies and objectives. (20%) 
3. Establish and review procedures and human resources guidelines. (20%) 
4. Direct the team of subordinates. (10%) 
5. Perform full reviews of activities and results and evaluate team ( 10%) 
6. Control entire company and its results. (10%) 
7. Report the performance and results. (5%) 
2 
Although the Petitioner listed additional information under each area of responsibility, the description 
focused on the Beneficiary's level of authority while providing limited insight into the nature of the 
Beneficiary's day-to-day tasks within the context of the Petitioner's business. For example, the 
Petitioner indicated that the Beneficiary's responsibility to "[ e ]stablish and review goals, objectives 
and policies" would include defining "goals objectives and policies in accordance with strategic 
plans," changing these goals, policies and objectives as necessary, coordinating "preparation of 
documents related to goals, objectives and policies," and communicating "goals, objectives and 
policies." 
The Beneficiary's responsibilities for establishing growth strategy and strategic plans and establishing 
and reviewing procedures were described in similarly vague and repetitive terms. For example, the 
Petitioner indicates that the Beneficiary will "establish general plans to maximize investments and 
increase efficiency," "establish, communicate and review vision, mission, goals and strategies," and 
"make the company general strategy to happen [sic]." Additional references to strategies, goals, 
policies, and procedures appear throughout the description, but the Petitioner did not list the 
Beneficiary's specific tasks or provide examples in support of its claim that he would be primarily 
focused on the broad policies and goals of the company. 
Reciting a beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; 
the regulations require the Petitioner to clearly describe the duties to be perfmmed. Conclusmy 
assertions regarding the Beneficiary's employment capacity are also not sufficient. Merely repeating 
the language of the statute or regulations does not satisfy the Petitioner's burden of proof Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F. 2d 41 (2d. Cir. 1990). The 
actual duties themselves will reveal the true nature of the employment. Id. Here, the Petitioner did 
not provide the necessary detail or an adequate explanation of the Beneficiaiy's activities in the course 
of his daily routine. 
In a notice of intent to deny (NO ID), the Director advised the Petitioner that the initial description was 
overly broad and did not convey an understanding of what the Beneficiary would be doing on a daily 
basis. In response, the Petitioner submitted the same list of seven areas of responsibilities with the 
same time allocations and essentially the same additional information under each area of 
responsibility. The Petitioner made a few minor revisions. For example, the Petitioner indicated that 
the Beneficiaiy will "[p ]erform full reviews of activities and results and evaluate team" in part by 
receiving "reports from the General Manager." The Petitioner also added a few references to its clients, 
suppliers and its main product, but it did not further explain the nature of the Beneficiary's day-to-day 
tasks. 
In the denial notice, the Director emphasized that the Petitioner had placed undue emphasis on the 
Beneficiaiy' s discretionary authority and his position within the organizational hierarchy in support 
of its claim that the position is in an executive capacity. The Director found that the listed duties 
appeared to be "significantly inflated, generalized and vague" and lacked specifics about the types of 
tasks he performs. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish eligibility 
for classification as an intracompany transferee in an executive capacity within the meaning of section 
10l(a)(44)(B) of the Act. By statute, eligibility for this classification requires that the duties of a 
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position be "primarily" executive or managerial in nature. Section 10l(A)(44)(B) of the Act. While 
the Beneficiary may exercise discretion over the Petitioner's business and its day-to-day operations 
and possess the requisite level of authority with respect to discretionary decision-making, the position 
descriptions alone were insufficient to establish that his actual duties would be primarily managerial 
or executive in nature. 
On appeal, the Petitioner states that it is "taking this oppmiunity" to provide additional information 
regarding the Beneficiary's duties. It submits a new list of 14 responsibilities and the amount of time 
he will allocate to each. Where, as here, a Petitioner has been put on notice of a deficiency in the 
evidence and has been given an opportunity to respond to that deficiency, we will not accept evidence 
offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). The Petitioner was notified of deficiencies in the NOID 
and opted to submit essentially the same job description it its response. Further, the newly submitted 
description bears little resemblance to the description that the Petitioner submitted twice previously, 
and it appears to describe his duties as of September 2019, rather than his duties as of the date of filing 
in October 2017. The Petitioner must establish that all eligibility requirements for the immigration 
benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.F .R. 
§ 103.2(b)(l). 
As discussed, we also must consider the submitted position descriptions within the context of the 
Petitioner's business, which requires a review of the nature of the business, its structure, and its staffing 
levels. For the reasons discussed below, the Petitioner has not established that the staff in place at the 
time of filing were able to support the Beneficiary in a position in which he would be required to 
perfmm primarily executive-level duties. 
B. Staffing and Organizational Structure 
The Petitioner, as noted, indicates that it is engaged in the wholesale distribution of products 
manufactured by Brazilian companies, including 1 t decorative textile wraps designed for 
floral arrangements and bouquets. 2 The Petitioner, which was established in 2015, and appears to be 
doing business asl I provided evidence that it achieved $7,615 in gross receipts or sales 
in 2016 and $18,219.20 in sales through the first eight months of 201 7. 
The Petitioner submitted a business plan that was updated in September 2017 and included its 
organizational chart, which identified its current employees and proposed future positions. The 
Petitioner claimed four employees at the time of filing: a CEO (the Beneficiary), a general manager, 
an administrative manager, and a warehouse assistant. The submitted organizational chart indicated 
that its four employees are organized in a four-tier structure, with the Beneficiary supervising the 
general manager, the general manager supervising the administrative manager, and the administrative 
manager supervising the warehouse assistant. 
2 The Petitioner also submitted a "general contract for services" with.__ ________ _.indicating that it would 
"represent! I on international business transactions in the United States ... when needed." It also provided a 
"commercial agreement of re-sale and goods distribution" with.__ _______ ~in which it agreed to distribute 
beach-related clothing and accessories in North America, Central America and the Caribbean. The Petitioner did not 
establish that it had generated revenue from either of these contracts as of the date of filing. 
4 
The organizational chart also identified four vacant positions and their respective proposed hiring 
dates: an operations manager (November 2018), a sales specialist (June 2019), a logistics specialist 
(November 2019), an information technology specialist (June 2020), and a client service agent 
(November 2020). As noted, Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). The Petitioner's plans to hire additional staff in the future do 
not assist in establishing its ability to support an executive position when the petition was filed in 
October 201 7. Also, we note that as of September 2019, the Petitioner had not filled any additional 
positions. 
The Petitioner submitted evidence documenting its employment of the general manager, the 
administrative manager, and the warehouse assistant as of August 2017. However, the administrative 
manager and the warehouse assistant were not earning the salaries claimed in the business plan. 
Specifically, the business plan indicates that these employees were earning annual wages of $20,880 
and $16,920, respectively, as of September 2017. The Petitioner's payroll records indicate that the 
administrative manager was being paid $800 monthly ($9,600 annually) for 80 hours of work while 
the warehouse assistant was receiving $340 monthly ($4,080 annually) for 40 hours of work. 
The record also contains insufficient evidence to establish that the warehouse assistant position was 
filled when the petition was filed in October 2017. In response to the NOID, the Petitioner indicated 
that the warehouse assistant identified on its initial organizational chart I, ,I "has left the 
Company and was replaced during the year of 2017." However, the new employee I I did 
not appear on the Petitioner's 2018 payroll summary until March 2018. The record does not contain 
payroll or wage information for the months of September 2017 through December 2017 or copies of 
the Petitioner's IRS Fmms W-2 Wage and Tax Statement, for 2017. 
Therefore, the documented employees at the time of filing included the Beneficiary, a general 
manager, and the part-time administrative manager. The Petitioner included position descriptions for 
its staff with its initial evidence. The Petitioner indicated at that time that the general manager 
performed duties that largely overlap with the Beneficiary's own claimed responsibilities, including 
"direct the management and all administrative and operational activities of the business," 
implementing "goals objectives, policies and procedures, directing financial activities, performing 
"full reviews of activities and results" and evaluating "all the company's activities." The Petitioner 
did not explain why it required its only two full-time employees to perfmm similar functions. 
The Petitioner indicated that the '"administrative manager" implements departmental procedures, 
"manages the administrative, financial and commercial activities of the business," "coordinates sales 
and marketing activities, prepares and presents reports," supports the general manager on long-term 
administrative objectives and goals, and assigns duties to the warehouse and sales assistants. The 
Petitioner also submitted a copy of this employee's resume, in which he stated that he is "in charge of 
bookkeeping" for the petitioning company. 
In response to the NOID, the Petitioner submitted substantially different position descriptions for the 
general manager and administrative manager and offered no explanation for the earlier descriptions or 
the considerable changes made. The Petitioner noted that although the general manager supervises 
the other employees, "his princip[ al] goal is sales" of the I I floral decor and swimwear products 
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distributed by the company. The Petitioner also indicated that the employee initially identified as an 
administrative manager is an "administrative assistant" who handles office documentation, including 
invoices, authorizations and other documents related to sales transactions, and maintains the 
company's social media accounts. The Petitioner submitted copies of business e-mails exchanged by 
the Petitioner and prospective and current customers. These e-mails were written by both the 
Beneficiary and the general manager and indicate that both employees have been engaged in sales 
activities. 
In the denial notice, the Director determined that the Petitioner had not supported its initial claim that 
it has four full-time employees or that the Beneficiary would be directing the management of the 
company through subordinate managerial or supervisory staff. The Director concluded that the 
Beneficiary would more likely than not be significantly involved in operational tasks required to 
operate the business, and not primarily performing executive-level duties. 
On appeal, as noted, the Petitioner submits a revised job description for the Beneficiary and asserts 
that the new evidence establishes that the subordinate staff relieve him from performing operational 
and administrative tasks. It also submits new, expanded job descriptions for the staff that bear no 
resemblance to the descriptions provided for them at the time of filing. These revised duties suggest 
that the job descriptions provided for the Beneficiary and his subordinates at the time of filing did not 
completely or accurately reflect the nature of their actual day-to-day duties. Further, they reflect that 
the general manager is primarily acting in a sales capacity by dealing with current and prospective 
clients, given that the Petitioner has not yet hired any sales staff. The Petitioner now identifies the 
"administrative manager" as its "finance manager," but his major duties appear to be centered on 
invoicing and bookkeeping, organizing financial records, assisting at occasional trade shows, and 
handling tax requirements. The warehouse assistant hired in 2018, organizes the inventory and mails 
samples to customers. 
While the Petitioner has submitted additional copies of e-mails confirming the general manager's 
performance of sales duties and the administrative employee's issuance of invoices to clients, this 
evidence does not support a finding that the Beneficiary is relieved from significant involvement in 
the non-executive duties needed to operate the company. The Petitioner emphasizes that some of the 
emails serve as evidence that the Beneficiary directs the general manager to respond to customer 
inquiries. However, both the revised position description submitted for the Beneficiary and other 
submitted e-mails indicate that the Beneficiaiy himself is involved in sales transactions and also 
appears to be the primary person responsible for dealing with the Petitioner's suppliers. The Petitioner 
initially claimed that the Beneficiary spends 60% of his time on establishing strategies, goals, policies 
and objectives for the company but its new description of his day-to-day duties does not support this 
claim. 
As required by section 101 (a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, USCIS must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. However, it is appropriate for USC IS 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). 
6 
Here, the evidence reflects that the Petitioner, a wholesale distributor, had less than $20,000 sales in 
the first eight months of 201 7 and appears to have completed only four transactions during that period. 
The Petitioner initially claimed a four-tier organizational structure with four full-time employees, but 
the record reflects that the Beneficiary's direct subordinate, the general manager, is primarily engaged 
in sales activities, the "administrative manager" is a part-time administrative assistant, and the 
warehouse assistant, if this position was filled at the time of filing, works only IO hours per week. The 
Petitioner has not demonstrated how the general manager and part-time staff relieve the Beneficiary 
from engaging in the day-to-day operational tasks of the business alongside the general manager, nor 
has it shown how this structure supports an executive position. Although the Petitioner's business 
plan indicates that the company anticipates a substantial increase in sales revenue and the hiring of an 
operations manager, sales specialist, logistics specialist and customer service employee in the future, 
it likely required its existing staff to perfmm some of these functions at the time of filing. Even though 
the enterprise remained in a preliminary stage of organizational development, the Petitioner is not 
relieved from meeting the statutory requirements. 
Based on the evidence submitted with the instant petition, the Petitioner has not met its burden to 
establish that it would employ the Beneficiary in an executive capacity. 
III. ABILITY TO PAY 
The remaining issue in this matter is whether the petitioner established that it has the ability to pay the 
beneficiary's proffered annual salary of $36,000. 
The regulation at 8 C.F.R § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States 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. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In dete1mining the petitioner's ability to pay the proffered wage, we will first examine whether the 
petitioner employed the beneficiary at the time the priority date was established. If the petitioner 
establishes by documentary evidence 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 the petitioner's ability 
to pay the beneficiary's salary. The Petitioner provided evidence that it paid the Beneficiaiy $36,000 
in 2016 and provided a copy of its 2016 federal income tax return. However, it filed this petition in 
October 201 7 and must show its ability to pay his wage from that date onward. 
The Petitioner submitted copies of the Beneficiary's monthly pay statements demonstrating that it paid 
him $35,000 in 2017. The Petitioner has not provided an annual report, federal tax return or audited 
financial statement for 201 7 and instead seeks to rely on bank statements. However, the regulations 
specifically require the Petitioner to submit one of these three documents. Although the regulation at 
8 C.F.R. 204.5(g)(2) states that additional evidence such as profit/loss statements, bank account 
7 
records or personnel records may be submitted by the Petitioner or requested by USCIS, it specifically 
requires the Petitioner to provide an annual report, federal tax return or audited financial statement. 
Without the Petitioner's 201 7 tax return, we cannot determine whether it had the ability to pay the 
remainder of the proffered salary based on either its net income or net current assets in that year. 
Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the 
proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 
1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 
(9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. 
Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. 
Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). 
Based on the foregoing, the Petitioner has not established that it has the ability to pay the Beneficiary's 
proffered wage. 
IV. CONCLUSION 
The Petitioner has not established that it would employ the Beneficiary in an executive capacity and 
that it has the ability to pay the proffered wage as of the date of filing. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed. 
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