remanded EB-1C Case: Gemstone Import

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 4, 2025 In Re: 36554651 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, an importer of gemstones and minerals, seeks to permanently employ the Beneficiary 
as its chief executive officer (CEO) under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) section 
203(b)(l)(C) , 8 U.S.C. § 1153(b)(l)(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 the Petitioner has been doing business for at least one year prior to the petition 's filing 
date, and that the Petitioner will employ the Beneficiary in the United States in a managerial or 
executive capacity. The matter is now before us on appeal under 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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for the entry of a new decision 
consistent with the following analysis. 
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 )(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 
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. ANALYSIS 
The Beneficiary served as president of the Petitioner's foreign parent company from March 2019 to 
June 2023, when she arrived in the United States as an L-lA nonimmigrant and began working as the 
Petitioner's CEO. 1 
A. Doing Business 
The 
Director determined that the Petitioner did not establish that it has been doing business for at least 
one year prior to the date of filing the petition. See 8 C.F.R. § 204.5(j)(3)(i)(D). Doing business means 
an entity's regular, systematic, and continuous provision of goods, services, or both, and does not 
include the mere presence of an agent or office. 8 C.F.R. § 204.5(j)(2). 
The Petitioner filed its articles of incorporation in June 2013. The Director cited public records 
showing that the petitioning corporation was suspended in October 2020 and reinstated on July 21, 
2022, less than a year before the Petitioner filed the petition on July 12, 2023. The Director therefore 
concluded: "the petitioner is unable to show that it was doing business at least one year before filing 
the petition on July 12, 2023." 
On appeal, the Petitioner asserts that it "submitted extensive documentation demonstrating continuous 
business operations since ... 2013 through the present." The Petitioner blames the suspension on its 
former accountant's failure to file a 2017 state tax return, and maintains that "the suspension did not 
disrupt [the Petitioner's] business activities." 
We agree with the Petitioner that the submitted documentation, including invoices and tax returns, 
shows that its business activity continued during the period of its suspension. The question of whether, 
and to what extent, the Petitioner violated California corporation law during the suspension period is 
outside the scope of this federal immigration proceeding. 
We therefore withdraw the above ground for denial of the petition, and conclude that the Petitioner 
has established that it has been doing business for at least one year at the time of filing. The remaining 
ground for denial, discussed below, requires further consideration. 
B. Executive Capacity in the United States 
The Director determined that the Petitioner did not establish that it seeks to employ the Beneficiary in 
an executive capacity in the United States. The Petitioner does not claim that it seeks to employ the 
Beneficiary 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 thereof; establishes the 
1 The prior approval of an L-1 nonimmigrant petition does not compel the approval of a subsequent petition for immigrant 
classification as a multinational manager or executive. See Mahalaxmi Amba Jewelers v. Johnson, 652 F. App'x 612,618 
(10th Cir. 2016). See also Elizur Int'/ Inc. v. USCIS, 2021 WL 1784615 (E.D.Va. 2021); Decor Team LLC, et al., v. 
McAleenan, et al., 2021 WL 661974 (D.Ariz. 2021). 
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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 10l(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. See generally 6 USCIS Policy Manual, supra, at F.4(C)(4). 
If staffing levels are used as a factor in determining whether an alien is acting in an executive capacity, 
we must 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. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" of an executive or managerial 
nature. Sections 10l(A)(44)(A) and (B) of the Act. 
A particular focus in this case is the requirement that an executive must direct the management of the 
organization or a function or component thereof. The Director concluded that the Petitioner had not 
established that the Beneficiary's U.S. position meets that requirement. But the Director did not 
adequately explain this conclusion. 
The Petitioner indicated that the Beneficiary oversees a "core management team." The Petitioner's 
July 2023 organizational chart shows four departments under the Beneficiary's authority, each with a 
manager and one or two subordinate staff: 
• E-Commerce, with one shipping & customer service clerk; 
• Key Account and Shipping, with one shipping clerk; 
• Local Store Development, with two local store sales representatives; and 
• Gem Show Development, with two sales representatives. 
In a separate statement, the Petitioner indicated that the Beneficiary oversees an Import Department 
Manager and an Export Department Manager in China. The Petitioner provided little information 
about these overseas positions and the Beneficiary's continued authority over them in the United 
States. 
The Director described the company's staffing and concluded that the Petitioner had not shown that 
the company "had reached the level of organizational sophistication in which the beneficiary could 
devote her primary attention to executive duties or managerial duties." The Director noted "the small 
number of other employees," and the apparent absence of "any administrative staff to relieve the 
beneficiary from performing non-executive duties." 
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On appeal, the Petitioner objects that the Director relied too heavily on the size of the company. We 
agree that size alone is not a determining factor. But within the company's small structure, other issues 
require attention. Whatever the size of a particular company, an executive must direct the management 
of the organization or a component or function thereof 
Directing the management in this way entails controlling the work of managerial or lower-level 
executive employees. This control could either take the form of direct supervision of those managers 
or executives or could be more indirect under some circumstances. See generally 2 USCIS Policy 
Manual, supra, at L.6(D). See also BlueStar Cabinets, Inc. v. Jaddou, No. 21-10116, 2022 WL 
4364734, at *7 (5th Cir. Sept. 21, 2022) (holding that "'[d]irect[ing] the management of the 
organization' necessarily includes directing managers of the organization.") 
The Director made a general reference to this requirement, regarding the Petitioner's low "level of 
organizational sophistication," but the Director did not pursue this reasoning to an extent that would 
have permitted the Petitioner to address the issue more fully on appeal. 
At the time of filing, the individuals whom the Petitioner calls "mid-level managers" each supervised 
one or two non-professional subordinates. The Petitioner must establish that the job descriptions for 
these claimed mid-level managers are accurate. See section 204(b) of the Act, 8 U.S. C. § ll 54(b), 
which permits approval of an immigrant petition only upon a determination "that the facts stated in 
the petition are true." Unresolved discrepancies in the subordinates' job descriptions may warrant 
reevaluating the reliability and sufficiency of the Petitioner's other assertions. See Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). 
The submitted job description indicates that the e-commerce manager "oversees and manages [the 
Petitioner's] online sales operations and strategy," "plans and executes digital marketing campaigns," 
and "set[s] sales targets," but the organizational chart does not show any sales or marketing staff under 
the e-commerce manager's authority. The only identified subordinate is a "shipping and customer 
service" staffer whose listed responsibilities do not include marketing, and whose sales duties appear 
to be limited to "process[ing] customer orders." 
The job description also indicates that the e-commerce manager "collaborates with the design and 
production teams" and "oversees website design and navigation." But the Petitioner has not identified 
any "design and production teams," and the job description for the only identified subordinate does 
not include website design. 
These apparent discrepancies between the e-commerce manager's job description and the Petitioner's 
claimed organizational structure raise broader questions of credibility that the Petitioner must address 
and resolve with independent, objective evidence pointing to where the truth lies. See Matter ofHo, 
supra. 
The Director does not appear to have considered the Beneficiary's claimed authority over the import 
department manager and export department manager in China. Oversight of non-U.S. personnel is 
permissible under some circumstances, as discussed in Matter ofZ-A-, Inc., Adopted Decision 2016-02 
(AAO Apr. 14, 2016). That precedent decision discussed "technical, sales, and administrative staff 
who are dedicated exclusively to supporting the growth of the group's business in the Americas." Id. 
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at 6. Here, the Director must consider whether the Petitioner has shown that the import and export 
departments in China are "dedicated exclusively to supporting" the Petitioner in the United States. 
There is some indication that the opposite is the case, with the petitioning U.S. entity's primary or 
perhaps sole function appearing to be supporting the foreign parent company by selling and shipping 
the foreign parent company's products. 
We note that materials submitted in response to a request for evidence, and discussed on appeal, 
include documents showing changes in the company's structure and staffing after it purchased the 
assets of another company in September 2023, two months after the petition's July 2023 filing date. 
A petitioner must meet all eligibility requirements at the time of filing the petition, and continuing 
throughout the adjudication of the petition. See 8 C.F.R. § 103.2(b )(1 ). Therefore, the Petitioner must 
establish that the Beneficiary's position qualified as an executive capacity as of July 2023. Only after 
the Petitioner meets that burden would we need to consider whether the position continued to qualify 
after the September 2023 expansion and reorganization. 
We will withdraw the Director's decision and remand the matter for a new decision, based on a more 
thorough analysis of whether the Petitioner has established that the Beneficiary's immediate 
subordinates constitute "management" as discussed above. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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