dismissed EB-1C Case: Wholesale Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-S- CORP . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 29, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , wholesaler of imported merchandise, seeks to permanently employ the Beneficiary as 
its president 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 that the Beneficiary would be employed in a managerial or executive capacity in the United 
States. 
On appeal, the Petitioner asserts that the Director erred in concluding that the Beneficiary duties must 
be exclusively managerial or executive in nature to qualify and contends that it need only establish that 
she would devote a majority of her time to managerial duties. The Petitioner states that the Beneficiary 
qualifies as a personnel manager based on her supervision of subordinate supervisors and asserts that 
these middle managers and their operational subordinates primarily relieve her from performing non­
qualifying operational duties. 
Upon de nova review, 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 
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 
Matter of N-S- Corp. 
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). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The first issue we will address is whether the Petitioner established that the Beneficiary would act in 
a managerial capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in an executive capacity in the United States. Therefore, we restrict our analysis to 
whether the Beneficiary would be employed in a managerial capacity. 
"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 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
When examining the managerial capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in a managerial 
capacity. 8 C.F.R. § 204.5(j)(5). Beyond the required description of the job duties, we 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. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary was performing certain high-level responsibilities. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary was primarily engaged in managerial 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. 
The Petitioner stated in a support letter provided with the petition that it is engaged in the "broad 
consumer discretionary sector" and indicated that it sells products such as specialty pillows, portable 
waterproof Bluetooth speakers, bicycles, as well as its "traditional product lines," including 
"commercial door products, raw material solutions, packaging tools, manufacturing equipment, and 
accessories." 
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Matter of N-S- Corp. 
The Petitioner indicated that the Beneficiary had been acting as its president since March 2016 and 
listed some of the following duties for her in a support letter provided with the petition: 
• formulate marketing and financial policies and strategies to obtain optimum 
efficiency, 
• direct the implementation and assigning projects, directives and instructions to 
subordinate managers to ensure high-quality services in a cost effective manner, 
• oversee marketing efforts to promote the Petitioner and maintain a consistent and 
positive vision with appropriate controls to assure compliance with brand 
standards, 
• determine progress and status in attaining corporate objectives and direct the 
revision of objectives and plans, 
• develop and maintain a network of top-level business relationships, 
• monitor the development of human resources policies and exercise authority over 
personnel actions, 
• supervise the planning and development of industrial, labor and public relations 
policies, and 
• oversee department budgets to ensure cost-effective and accurate budgets. 
Later, in response to a notice of intent to deny (NOID) issued by the Director, the Petitioner submitted 
an expanded duty description listing some of the following duties: 
• primarily supervise the operations manager for the administration, sales and 
marketing, purchasing, importing and exporting, customer service and logistics of 
the Petitioner, 
• continue to establish target goals for the business growth and set the monthly, 
quarterly, and yearly profit expectations, 
• direct the company's financial management including making strategic plans for 
the company including specific "business turnaround goals," 
• expand the company's operations into several other regions currently not covered 
by the Petitioner, 
• oversee the company's product sales, marketing, supply distribution, development, 
and after-sale customer service operations, 
• manage operational funds as well as the funds invested by the foreign parent, 
• adjust the annual financial budgets of the company and supervise subordinate 
manager to make detail the short-term financial plans and allocate the operating 
budget, 
• design the organization structure and corporate operation processes, 
• decide on the recruitment of key responsible persons according to the company's 
business development plan and the annual business objectives, 
• establish the company's own warehouse and logistics department and human 
resource department in the future, 
• assign specific work assignments to subordinate managers, professionals, and 
employees, 
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Matter of N-S- Corp. 
• supervise subordinate managers to follow the company's cost restructuring and 
reduction procedures and decide the annual financial budgets, 
• revise employees' key performance evaluation systems and evaluate subordinate 
managers, 
• make plans for and hold periodic training for subordinate managers enhancing their 
knowledge on furniture and home decor industry, 
• ensure the full implementation of the policies and strategic plans by the board of 
directors of the Petitioner, 
• direct the department managers to work together ifthere are certain operations and 
business activities which need inter-department communication, 
• review and approve terms, conditions and limitations of important contracts and 
agreement signed with customers and suppliers, and 
• exercises the authority to hire and fire employees and per the board of directors 
establish and make adjustments to the Petitioner's current organization structure. 
The Petitioner submitted duty descriptions for the Beneficiary including few credible details and it 
otherwise provided insufficient supporting documentation to substantiate the qualifying managerial 
duties she would perform on a daily basis. The Beneficiary's duty descriptions are generic, and could 
apply to any manager acting in any business or industry and they do not provide insight into the actual 
nature of her role. The Petitioner provided insufficient examples and little supporting documentation 
to demonstrate the Beneficiary's performance of qualifying duties, such as marketing and financial 
policies and strategies she formulated, projects, directives and instructions related to "high-quality 
services" she implemented, controls she put in place to assure compliance with brand standards, or 
objectives and plan she revised. In addition, the Petitioner did not provide sufficient detail or 
documentation to substantiate top-level business relationships the Beneficiary maintained, industrial, 
labor or public relations she developed, target goals she established for business growth, "specific 
business turnaround goals" she set, or regions she ordered expansion into. 
Likewise, the Petitioner did not describe or document after-sale customer service operations she 
oversaw, financial budgets she adjusted, organizational structure and operational processes she 
designed, cost restructuring and reduction procedures she assured compliance with, training she 
planned or conducted with her claimed subordinate managers, policies and strategic plans she 
implemented from the board of directors, or important contracts or agreements she approved. In fact, 
the Petitioner asserts that the Beneficiary oversees a subordinate operations manager and three other 
subordinate managers, but the record includes little evidence of her delegating duties to these claimed 
supervisors. This lack of detail and documentation specific to the Beneficiary's daily activities is 
particularly noteworthy since the Petitioner states that she acted as its president for approximately two 
years prior to the date the petition was filed in March 2018. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily managerial in nature, otherwise meeting the 
definitions would simply be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d41 (2d. Cir. 1990). 
The Beneficiary's duties also include discrepancies that leave question as to their credibility. For 
instance, the Petitioner regularly refers to the Beneficiary's coordination with a board of directors both 
in her duties and elsewhere on the record, noting her "full implementation of the[ir] policies and 
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Matter of N-S- Corp. 
strategic plans." However, there is no evidence on the record to demonstrate that the Petitioner has a 
functioning board of directors since the company is wholly owned by the foreign parent, which is 75% 
owned by the Beneficiary. In addition, the Beneficiary's latter duty description also twice refers to 
her providing training to his subordinate managers on "furniture and home decor;" however, there is 
no indication on the record that the company sells these products, only documentation reflecting the 
sale of pillows, Bluetooth speakers, bicycles, and other miscellaneous items. These discrepancies are 
particularly notable in light of the near complete lack of detail and references to its specific business 
and industry in the Beneficiary's duty descriptions. The Petitioner must resolve this discrepancies 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). 
In addition, to the extent the Petitioner submitted supporting documentation specific to the 
Beneficiary's activities, this evidence was not credible and probative in demonstrating that she would 
devote a majority of her time to qualifying managerial tasks on a day-to-day basis. For instance, the 
Petitioner provided three policies it asserts were implemented by the Beneficiary, including 
"Employee Conduct & Disciplinary Action," "Expense Management System," and "Bonus and 
Incentive" policies. 1 However, these policies were generic and lacked credible details specific to the 
Petitioner's business and it appeared that they could apply to any business acting in any industry. For 
example, the expense management system policy does not specify how the Petitioner would manage 
different expenses it regularly faces, only vaguely referring to the company's "approval process," 
"relevant company policies," "governing laws and regulations and the company's financial system," 
and its "travel policy." In other words, this policy only refers to other policies for which no specifics 
or documentation are provided. Likewise, the bonus and incentive policy also includes few actual 
guidelines as it only generically declared that "employees may be eligible to receive incentive 
payments which is 10% of their gross annual salary;" but beyond this, there is little information on 
how this is achieved or what the referenced "performance goals" are. Therefore, we did not find the 
submitted policies probative in demonstrating that the Beneficiary would devote a majority of her time 
to qualifying managerial duties on a day-to-day basis. 
The Petitioner also submitted meeting minutes from three meetings it asserts took place prior to the 
date the petition was filed; specifically minutes dating from October and November 2017 and another 
from February 2018.2 However, again, these minutes reflected few credible specifics regarding the 
Beneficiary's qualifying duties. Indeed, the claimed meeting minutes from October 201 7 did not 
reflect that the Beneficiary attended. Meanwhile, the meeting minutes February 2018 included only 
non-specific declarations from the Beneficiary lacking credibility, such as her agreeing that "more 
efforts should be given to advertorials on the social network" and "carried out on a larger scale," and 
her noting that she hoped that the company's asserted operations manager would "better monitor 
market responses and the performance of the sales department." However, these claimed meeting 
minutes reflect that no actual details were discussed, such as the actual advertisements that would be 
launched, on what platforms, how much this would cost, specifics as to the performance of the sales 
department or information on other market factors the business was facing. 
1 These policies were dated August 12, 2016, October 1, 2017, and September 1, 2017, respectively. 
2 The Petitioner also provided meeting minutes dated after the time the petition was filed. However, for the purposes of 
this decision, we will only consider those relevant to the date the petition was filed. 
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Matter of N-S- Corp. 
Likewise, the meeting minutes dated in November 2017 also reflect generic declarations by the 
Beneficiary such as her emphasizing "the importance of the promotions for the 2017 shipping season," 
the company giving priority "to products suitable as gifts," and noting that she asked the "purchasing 
department to communicate with the supplier, since "recently placed orders have not been shipped." 
However, there is little indication in these meeting minutes as to the products that would be featured 
during the holiday season, the promotions that would be used, actual purchasing that would take place, 
the increased costs or projected revenues, or which supplier was delayed in their shipping. Indeed, 
both the meeting minutes referring to the Beneficiary discuss promotions and advertising; however, 
there is no evidence on the record of these activities and the Petitioner's 201 7 and 2018 IRS Forms 
1120, U.S. Corporation Income Tax Returns include no apparent costs for marketing, promotions, or 
advertising. 
Therefore, the Petitioner asserts that the Beneficiary has been acting in a managerial capacity since 
March 2016, but it has only submitted vaguely worded meeting minutes that lack credible detail. The 
Petitioner sets forth duties for the Beneficiary indicating that she was, and would be, primarily tasked 
with establishing target goals, implementing strategic plans, directing the company's finances, 
assigning specific work assignments to subordinate managers, conducting training for them, and 
reviewing and approving important contracts; however, the submitted meeting minutes demonstrate 
few if any specifics related to these claimed qualifying activities. This evidence is not sufficient to 
establish that the Beneficiary primarily devoted her time to qualifying managerial tasks and that she 
was consistently delegating duties to a subordinate operations manager and three other department 
managers. 
Lastly, the Petitioner provided performance reviews it asserts the Beneficiary completed for her 
claimed subordinate operations, sales, purchasing, and office managers in late 201 7. But again, these 
performance reviews lacked detail and included suggestions for improvement that did not appear 
credible. For instance, viewed as a whole, these claimed performance reviews were nearly completely 
devoid of any numbers, targets, or financial information. For instance, the sales manager's review 
only vaguely stated that he "double[ d] sales volume in 2017," but it does not indicate what this actual 
sales number was. Further, the review indicated that the sales manager did or would "increase the 
marketing types from 30 skus last year to 90 skus this year;" yet, there is little indication as to what 
this means. Likewise, the purchasing manager's review stated that he would develop, or developed, 
12 new suppliers, and that he would establish sound relations and negotiate with them; but, there is no 
reference to the specific suppliers or any contracts this claimed manager negotiated. 
Further, the Beneficiary's asserted feedback to her managers lacked credible specifics to sufficiently 
corroborate his supervisory authority over them. For example, the Beneficiary suggested that her 
subordinate operations manager "be more patient and pay more attention to personality types" and 
noted that "when you encounter some tough situations which make you stressed and frustrated, I am 
suggesting you approach them with an innovative mindset." Assuredly, this may be useful advice 
which could be included in a subordinate's performance review, but it becomes questionable in light 
of the lack of other specifics and details included in the performance review, such as actual tasks and 
initiatives this manager would undertake during the next year or actual metrics they would improve 
upon. 
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Matter of N-S- Corp. 
Therefore, in sum, the Petitioner submitted a generic duty description for the Beneficiary which 
included few credible details as to her qualifying tasks. Further, to the extent it provided supporting 
documentation meant to establish the Beneficiary's qualifying duties, this evidence was also not 
probative; including questionably non-specific information and discrepancies. As such, the Petitioner 
did not submit sufficient evidence to demonstrate that the Beneficiary was likely devoting her time 
primarily to managerial duties as of the date the petition was filed. 
Even though the Beneficiary holds a senior position within the organization, the fact that she will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational manager within the meaning of section 101(a)(44)(A) of the Act. The Beneficiary may 
exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of 
authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that her actual duties would be primarily managerial in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
As previously discussed, the Petitioner asserts that the Beneficiary qualifies as a personnel manager 
overseeing subordinate supervisors. 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. 
Since the Beneficiary was not offered a position as a function manager, she must qualify as a personnel 
manager to be eligible for classification as a multinational manager. 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." 8 C.F.R. § 
204.S(i)( 4)(i). 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. § 204.5(i)(2). 
The Petitioner provided an organizational chart corresponding with the date the petition was filed 
reflecting that the Beneficiary supervised an operation manager and it stated that the Beneficiary 
"directly supervises one subordinate Operation Manager who in tum supervises nine employees." The 
accompanying chart indicated that the operation manager oversaw three subordinate supervisors; 
namely, office, sales, and purchasing managers. Further, the office manager was shown to supervise 
a web content editor and an office assistant and the sales manager two sales representatives. Lastly, 
the chart reflected that the purchasing manager supervised a logistics coordinator and a purchasing 
specialist. 
As a preliminary matter, the Petitioner initially indicated that the Beneficiary "directly" supervised the 
operation manager who in tum oversaw three subordinate managers. However, now on appeal, it 
emphasizes that the Beneficiary supervises the operation manager and all three subordinate managers. 
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Matter of N-S- Corp. 
Indeed, as we discussed, the Petitioner provided performance reviews from late 201 7 reflecting the 
Beneficiary's review of all the company's asserted managers. The Petitioner attempts to explain this 
discrepancy by referring to the organizational chart of the Department of Justice and noting that the 
depiction of its structure "is a commonly used convention for indicating that the Operations Manager 
is to serve on an organizational chart." We do not find this reasoning convincing, as the Petitioner 
previously stated on the record that the Beneficiary "directly supervises one subordinate Operation 
Manager who in tum supervises nine employees." In short, the Petitioner shifting assertions as to its 
organizational structure leave uncertainty that it has not sufficiently clarified on appeal. Again, the 
Petitioner must resolve inconsistencies and ambiguities in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 582, 591-92. 
Furthermore, the Petitioner submitted duty descriptions for the Beneficiary's claimed managerial 
subordinates which again were overly vague and generic and which do not sufficiently demonstrate 
that they acted as supervisors. For instance, the Petitioner vaguely stated that the operation manager 
was tasked with improving existing operation procedures for outgoing and incoming resources, 
developing and adhering to the company's annual operational budget, reviewing financial statements 
for discrepancies, and communicating with legal counsel and safety department to ensure all processes 
remain compliant with "OSHA." This duty description does not include sufficient specifics to 
substantiate the operation manager's role, such as what incoming/outgoing resources are being 
referred to, the operational budgets he set, or the safety issues he resolved. Indeed, the duty description 
dubiously refers to a "safety department" not included in the company's organizational chart. 
Likewise, the Petitioner stated that the office manager was responsible for developing organizational 
procedures and systems for filing, billing, and accounts payable, improving employee and client 
retention rates, managing employee schedules and troubleshooting conflicts, and establishing "team 
atmosphere through leadership and employee development." Yet again, this office manager duty 
description is devoid of meaningful details to sufficiently corroborate this claimed managerial role, 
such as describing the procedures and systems she implemented, the client she worked with, or 
employee development she focused on. In fact, the organizational chart indicates that the office 
manager supervised a web content editor and an office assistant; yet, this duty description includes no 
reference to a responsibility for web content or her supervision of subordinates. The office manager 
job duties also discuss her being tasked with "ordering supplies and equipment as needed," an apparent 
duty of an assistant and a responsibility not reflective of a subordinate manager. 
The Petitioner also indicated that the sales manager was tasked with managing the "sales program," 
monitoring "the program across all domestic ... and overseas sales to penetrate new market[s]," 
generating leads and closing new deals, meeting with customers to discuss their evolving needs, 
implementing new sales initiatives, strategies, and programs, and providing daily reports of field sales 
success to superiors. However, again, there is no discussion of what "sales program" the Petitioner 
refers to, nor does it credibly describe the new markets the sales manager penetrated, deals he closed, 
the customers he met with, or new sales initiatives he launched. In fact, the Petitioner refers to "field 
sales" reports, but the submitted evidence reflects that it exclusively sells items through the internet 
on Amazon and eBay. Further, the nature of the Petitioner's business also leaves question as to why 
it would require two sales representatives subordinate to the Beneficiary contacting customers, 
providing product information, and attending "expos" and "other business events." In other words, 
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Matter of N-S- Corp. 
the Petitioner claimed organizational structure and the duties of the members of its claimed sales 
department appear to reflect that they act as traditional field salesman, but the supporting 
documentation demonstrates that it is only selling items through the internet. It is also notable that the 
Petitioner's 2018 IRS Form 1120 included minimal expenses for travel ($6,562) and no other apparent 
sales related expenses, leaving further question as to its assertion that it was employing sales 
representatives deployed to the field. 
Lastly, the Petitioner stated that the claimed purchasing manager subordinate to the Beneficiary was 
responsible for proposing improvements to the current purchasing system, improving vendor 
relationships, collaborating with inventory control and sales to develop metrics for gauging inventory 
level needs, creating profitable ways to manage obsolete and slow moving stock, and developing more 
effective invoicing and collecting processes. However, the purchasing manager's claimed duty 
description did not include specifics such as the improvements he made to the purchasing system, the 
vendors he worked with, metrics he developed, slow moving stock he managed, or invoicing or 
collecting processes he implemented. In fact, the Petitioner regularly refers to vendors and suppliers 
on the record and throughout the duty descriptions of the Beneficiary, operation manager, and other 
claimed supervisors, but the record does not identify these suppliers or vendors nor is there 
documentation reflecting contracts with these parties. 
Therefore, the Petitioner provided duty descriptions for the Beneficiary's claimed subordinate 
managers that were overly vague and which included apparent discrepancies. It is also notable that 
despite asserting that the Beneficiary has been acting in her managerial role since March 2016 the 
record includes little credible evidence reflecting her delegation of duties to a subordinate operation 
manager and three other department managers on a daily basis. As such, the Petitioner has not credibly 
established that the Beneficiary would oversee subordinate supervisors, as claimed, to qualify her as 
a personnel manager. 
In conclusion, the Petitioner has not established that the Beneficiary would act as a personnel manager. 
The Beneficiary's duty description is generic and lacks credibly and probative value; and the record 
lacks credible supporting documentation of her claimed qualifying duties. The provided evidence is 
also not sufficient to demonstrate that the Beneficiary would oversee subordinate managers, as the 
duty descriptions for these claimed subordinates were also overly vague and did not sufficiently 
substantiate their asserted roles. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would act in a 
managerial capacity in the United States. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
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Matter of N-S- Corp. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-S- Corp, ID# 6093917 (AAO Oct. 29, 2019) 
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