dismissed EB-1C Case: Wholesale Trade

U.S. Citizenship 
and Immigration 
Services 
In Re : 13119128 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : Jan. 8, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a wholesale trade company, seeks to permanently employ the Beneficiary as its 
"Executive Director" under the fust 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 Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in the United States in a managerial or 
executive capacity .1 The Director also discussed information that the Beneficiary provided in her 
2016 tax return, questioning how the Beneficiary can work for the entity named in that tax return while 
simultaneously occupying a managerial or executive position with the Petitioner. The matter is now 
before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S .C. § 1361. 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 )(1 )(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 
1 The Director also referred to information gathered at the Florida Department of State, which showed that the Petitioner 's 
marketing director was listed as an officer with other entities and that those entities shared the Petitioner 's business address . 
Because the Petitioner adequat ely addressed this issue on appeal, it need not be further addressed . 
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 MANGAGERIAL OR EXECUTIVE CAPACITY 
The issue to be addressed is whether the Petitioner provided sufficient evidence establishing that the 
Beneficiary's position in the United States would be in a managerial or executive capacity. 2 
"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. 
"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 L-lA nonimmigrant visa classification as a manager, the Petitioner must show that 
the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 10l(a)(44)(A)(i)-(iv) of the Act. Likewise, to be eligible for L-lA nonimmigrant visa 
classification as an executive, the Petitioner must show that the Beneficiary will perform the high­
level responsibilities set forth in the statutory definition at section 101(a)(44)(B)(i)-(iv) of the Act. If 
the record does not establish that the offered position meets all four elements of one statutory definition 
or the other, we cannot conclude that it is a qualifying managerial or executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in one of the statutory 
definitions, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial or 
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 managerial or 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 
2 The Petitioner has not consistently identified the Beneficiary's proposed employment as being either managerial or 
executive, but rather has alternated or combined these claims. We therefore cannot ascertain whether the Petitioner's claim 
is based on the statutory definition of executive or managerial capacity. 
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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. 
The 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 or executive capacity. See 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 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 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 
First, we will discuss the Beneficiary's position and duties to be performed. We note that 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). 
In a supporting statement, the Petitioner stated that the Beneficiary has been and will continue to be 
employed in an executive capacity. Although the Petitioner also referred to the Beneficiary's 
"requisite executive skills," it did not maintain this as its primary claim and instead stated that the 
Beneficiary will perform "various managerial and executive activities." The Petitioner also provided 
a job duty breakdown that did not clearly indicate whether the listed job duties fall within the definition 
of managerial capacity under section 10l(a)(44)(A) or executive capacity under section 10l(a)(44)(B) 
of the Act. Rather, the Petitioner stated that the Beneficiary will spend 20% of her time meeting with 
"high level clients," 20% supervising "the activities of the company," 21 % reviewing sales, objectives, 
and policy implementation, 27% establishing an annual budget and assessing prospective purchases, 
and 12% recruiting staff: participating in board meetings, and meeting monthly with employees "for 
verification of goals, policies, and objectives achieved." The Petitioner did not elaborate on the 
significance of "high level clients" or clarify whether there is a hierarchy among its clients and if so, 
how such a hierarchy supports the claim that the Beneficiary assumes the top role within the 
organization. The Petitioner also did not specify which "activities of the company" the Beneficiary 
supervises or identify the policies and objectives she reviews. 
Further, the Petitioner provided its 2017 annual report, which lists the Beneficiary's title as "Sales 
Manager," while indicating that I I who signed the annual report, and I I 
assumed the positions of president and vice president, respectively. 3 The position titles assigned to 
I I and I I indicate that their respective positions are above the Beneficiary in the 
Petitioner's organizational hierarchy, thereby undermining the claim that the Beneficiary is positioned 
at the top of the organization. The Petitioner must resolve this inconsistency in the record with 
3 Although the words "president" and "vice president" were not spelled out, it is reasonable to conclude that the letter "P" 
representing I I title and the letters "VP" representing I I title stand for "president" and "vice 
president," respectively. 
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independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
The Petitioner also provided the Beneficiary's resume, which states that the Beneficiary oversees an 
administrative manager, a logistics manager, a marketing manager, an accounting position, a 
warehouse coordinator, and an "assistant." The resume also states that the Beneficiary ensures "local 
programmatic excellence, rigorous program evaluation, and consistent quality of finance and 
administration, fundraising, communications, and systems" and makes recommendations for 
achieving "strategic goals." The Petitioner did not elaborate on the activities that fall under the realm 
of ensuring "programmatic excellence," nor did it elaborate on the role of fundraising within the scope 
of a wholesale trade business. Further, the Petitioner did not explain how the duties in the resume 
relate to and are consistent with the different set of job duties listed in the above job duty breakdown. 
In response to a request for evidence (RFE), the Petitioner provided a third iteration of job duties, 
which contained references to elements of the statutory definitions of executive and managerial 
capacity. On the one hand, the Petitioner referred to elements that are inherent to the definition of 
executive capacity, claiming that the Beneficiary has discretionary authority in decision-making and 
is responsible for directing the organization and establishing the organization's goals and policies. On 
the other hand, the Petitioner referenced the statutory definition of managerial capacity and claimed 
that the Beneficiary will "hold the highest managerial authority," "direct managerial employees and 
supervisors," and have authority to hire and fire personnel. See section 10l(a)(44)(A)-(B) of the Act. 
Although the Petitioner also cited the fourth prong of the definition of managerial capacity, which 
includes the exercise of discretion over daily operations, it stated that the Beneficiary "is exercising 
one of the highest degrees of discretion in her decision-making," which is also consistent with the third 
prong of the definition of executive capacity. See section 101(a)(44)(B)(iii) of the Act. A petitioner 
claiming that the beneficiary's position will consist of a mixture of managerial and executive duties 
will not meet its burden of proof unless it has demonstrated that the beneficiary will primarily engage 
in either managerial or executive capacity duties. See section 101(a)(44)(A)-(B) of the Act. While in 
some instances there may be duties that could qualify as both managerial and executive in nature, it is 
the petitioner's burden to establish that the beneficiary's duties meet each set of criteria set forth in 
the statutory definition for either managerial or executive capacity. A petition may not be approved if 
the evidence of record does not establish that the beneficiary will be primarily employed in either a 
managerial or executive capacity. 
The RFE response also included an additional job duty breakdown which stated that 40% of the 
Beneficiary's time will be spent meeting with an accountant regarding financial matters and meeting 
with attorneys regarding legal matters that affect the U.S. entity's management, establishing the 
managerial staff's responsibilities, "[ d]irect[ing] formulation of financial programs" for acquiring 
"new technology," and reviewing and signing contracts and "other relevant documents." For the 
remaining 60% of the time, the Petitioner stated that the Beneficiary will do the following: ensure that 
the "managerial staff and employees" implement the company's business plans, policies, and goals; 
develop business policies and goals and ensure their execution; and address human resources concerns, 
such as hiring and firing personnel and establishing the organizational structure and policies for 
"personnel conduct." Again, the Petitioner did not reconcile this job duty breakdown with the job 
descriptions that were included in the resume and initial supporting statement. As noted earlier, 
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discrepancies in the record must be resolved through the submission of independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
Further, in a separate statement,! I president of the foreign entity, stated that the 
Beneficiary's "key duties" as the Petitioner's "Executive Director" include fondraising, marketing, 
and community outreach. HoweverJ ldid not elaborate on the Beneficiary's specific role and 
activities with respect to these functions or explain how fondraising and community outreach are "key" 
to the Petitioner's wholesale trade business. 
In a notice of intent to deny (NOID), the Director observed that the Petitioner provided multiple 
iterations of the Beneficiary's job duties, finding that the job descriptions were generally vague and 
focused primarily on the Beneficiary's discretionary authority yet lacked sufficient information about 
the actual duties to be performed. The Director farther stated that although the Beneficiary's job duty 
descriptions include references to a board of directors as well as a business plan, objectives, and 
policies, the Petitioner did not identify a board of directors, provide a business plan, or point to specific 
policies or objectives. In light of these findings, the Director determined that the Petitioner did not 
demonstrate that the Beneficiary would primarily perform executive-level duties. 
In response, the Petitioner provided a statement containing another iteration of the Beneficiary's 
proposed job duties. In this version, the Petitioner claimed that the Beneficiary would spend 40% of 
her time on the following activities: reporting to the "Partner office" in Venezuela regarding the 
Petitioner's goals and objectives, organizational management, "development of employees," and 
"sales projects"; overseeing "the function of the organization" and attending board meetings in her 
capacity as a shareholder; establishing relationships with suppliers and reviewing and signing purchase 
orders, contracts, and "other relevant documents"; and recruiting "qualified personnel ... according 
to the hierarchical structure." As noted in the denial, the Petitioner did not identify its business goals 
and objectives or state who comprises the board of directors. The Petitioner also did not elaborate on 
what constitutes "sales projects" within the context of its wholesale trade business. The Petitioner 
stated that for the remaining 60% of her time, the Beneficiary will"[ d]irect the creation and execution 
of business expansion projects," review financial statements and reports for accounts payable and 
receivable, "[ m ]anage bank credits for the development of operations," and review inventory reports 
for incoming and outgoing merchandise. However, the Petitioner did not describe any "business 
expansion projects" or explain how such projects will be developed and what the Beneficiary's role 
would be in the course of such development. The Petitioner also did not clarify the significance of 
"bank credits" or explain how the said "credits" would assist in "development of operations." 
In general, despite highlighting the Beneficiary's managerial or executive level of authority in each 
iteration of the Beneficiary's job duties, the Petitioner submitted multiple job duty breakdowns, which 
are inconsistent with one another and lack substantive content about the Beneficiary's actual daily or 
weekly tasks within the context of a wholesale trade business. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise 
meeting the definitions would simply be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. at 1108. In this instance, the Director pointed to ambiguities and deficiencies in 
the original job description. However, instead of definitively stating whether the proposed position 
would be in a managerial or executive capacity and elaborating on the original set of job duties, the 
Petitioner offered additional job duty breakdowns with each iteration, each of which lacked 
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meaningful content about the Beneficiary's daily activity in the routine course of the Petitioner's 
wholesale trade business. Further, as noted earlier, the Petitioner's 2017 annual report, which was 
filed only three months prior to this petition, listed the Beneficiary's title as "Sales Manager" and 
named two other individuals as the president and vice president, respectively, thereby further 
detracting from the Petitioner's claim that the Beneficiary's proposed position fits the statutory criteria 
of managerial or executive capacity. The Petitioner must resolve the discrepancies described herein 
by providing independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. at 591-92. 
On appeal, the Petitioner restates significant portions of the NOID response, including the job duty 
breakdown, and claims that the Beneficiary performs executive job duties and meets with attorneys 
when the need arises. However, the Petitioner does not reconcile the inconsistencies perpetuated by 
its submission of competing job duty breakdowns, and despite claiming on appeal that the 
Beneficiary's duties are executive in nature, we cannot overlook the Petitioner's prior inconsistent 
categorization of the U.S. position as managerial and executive. It is also unclear why the Petitioner's 
201 7 annual report identified the Beneficiary as "Sales Manager" and indicated that I I 
signed the report in an officer capacity as the Petitioner's president if he is the Petitioner's marketing 
manager and occupies a position that is subordinate to the Beneficiary, as the Petitioner claims. The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
In light of the above-described inconsistencies and the deficient job duty breakdowns, we cannot 
conclude that the Beneficiary would primarily perform job duties that are managerial or executive. 
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 the overall purpose 
and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
The Petitioner claimed seven employees and provided an organizational chart that depicted a three­
tier staffing hierarchy and listed employee names, position titles, and job duties. The Beneficiary is 
depicted at the top of the hierarchy overseeing an administrative manager, a logistics manager, and a 
marketing manager, all positioned at the second tier of the hierarchy. The chart shows that the bottom 
tier of the hierarchy was comprised of four positions - "B.D. Account" and "B.D. Higienic" as 
subordinate to the administrative manager, a warehouse coordinator and purchasing coordinator as 
subordinate to the logistics manager, and a web developer as subordinate to the marketing manager. 
Although the purchase coordinator and web developer positions were both shown as vacant at the time 
of filing, the Petitioner did not explain how it would compensate for these vacancies or state who was 
performing the respective duties that would normally be assigned to these positions. 
In the denial, the Director questioned whether the Petitioner's staffing composition is sufficient to 
support a managerial or executive position, noting that although the Petitioner paid wages to six 
employees in 2017 when this petition was filed, it listed nine positions in the organizational chart. The 
Director also observed tha~ I whom the organizational chart depicts as the Petitioner's 
marketing manager, signed the Petitioner's 2016 tax return and indicated that he was signing in the 
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capacity of"executive director," the position that the Beneficiary has occupied and would purportedly 
continue to occupy under an approved petition. 
On appeal, the Petitioner provides a 2017 organizational chart that is nearly identical to the one 
originally submitted at the time of filing. 4 However, we note that the evidence must substantiate that 
the duties of a beneficiary and his or her subordinates correspond to their placement in an 
organization's structural hierarchy; artificial tiers and inflated job titles of subordinate employees are 
not probative and will not establish that an organization is sufficiently complex to support an executive 
or managerial position. An individual whose primary duties are those of a first-line supervisor will 
not be considered to be acting in a managerial capacity merely by virtue of his or her supervisory 
duties unless the employees supervised are professional. Section 101(a)(44)(A) of the Act. Here, the 
Petitioner does not elaborate on the operation of its wholesale trade business or explain how the 
organizational structure that was in place at the time of filing would have supported the Beneficiary 
in a managerial capacity, where she would primarily manage the organization and supervise and 
control the work of supervisory or professional employees, or in an executive capacity, where she 
would primarily direct the management of the organization and focus on establishing the 
organization's goals and policies and making discretionary decisions. Sections 101(a)(44)(A) and (B) 
of the Act. 
Further, the Petitioner does not dispute the Director's observation thatl I rather than the 
Beneficiary, signed its 2016 corporate tax return. Nor does the Petitioner explain wh~ I 
position title was listed as "executive director," the position that is claimed to have been held by the 
Beneficiary both at the time the tax return was signed and at the time this petition was filed. As with 
the previously noted anomalies, this ambiguity in the record must also be resolved with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
In sum, the Petitioner has not demonstrated that its organizational hierarchy at the time of filing was 
sufficient to support the Beneficiary in a managerial or executive capacity. 
C. Full-Time Employment 
Lastly, as noted earlier, the Director questioned the likelihood that the Beneficiary can occupy a 
managerial or executive position with the petitioning entity while simultaneously being employed by 
the separate entity that was named in the Beneficiary's 2016 personal tax return. We note that USCIS 
may reject an assertion in the petition if it finds reason to believe that the assertion to be untrue. See, 
e.g., Section 204(b) of the Act, 8 U.S.C. § 1154(b); Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 
1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In Part 6, No. 4 of the petition, the Petitioner stated that its employment offer was for a foll-time 
position. The Petitioner also claimed that it has employed the Beneficiary in a managerial or executive 
position under a previously approved L-lA petition. As such, the Director had reason to question the 
validity of the Petitioner's claims given the information that the Beneficiary provided in Schedule C 
4 The notable difference between this chart and the chart that was provided in support of the petition is that the position 
previously listed as "B.D. Higienic" is now listed as "Higienic/Janitor." The rest of the content remains the same. 
7 
of her 2016 tax return, where she indicated that she was the proprietor of and generated income from 
I I" 
On appeal, the Petitioner merely claims that the Beneficiary's duties with its organization are executive 
in nature and refers to the Director's concern about the employment information contained in the 
Beneficiary's 2016 tax return as a "red herring" that should not be considered in determining the 
Beneficiary's eligibility. However, because the Petitioner does not elaborate on the Beneficiary's 
position with I I or discuss the Beneficiary's responsibilities as the proprietor of 
this entity, we cannot conclude that the Petitioner adequately addressed the Director's concern, which 
points to a possible inconsistency between information that the Beneficiary provided in her 2016 tax 
return and the Petitioner's claim that it currently employs, and seeks to continue to employ, the 
Beneficiary permanently and on a foll-time basis as its "Executive Director." 
III. CONCLUSION 
In sum, the Petitioner did not resolve noted inconsistencies or provide sufficient evidence in support 
of its claim that the Beneficiary would be employed in a managerial or executive capacity. Therefore, 
this petition cannot be approved. 
ORDER: The appeal is dismissed. 
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