remanded EB-1C Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-E-USA, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. II, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a manufacturer of aluminum foil, seeks to permanently employ the Beneficiary as its 
president and general manager 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 )(I )(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 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 an executive 
capacity. 
On appeal, the Petitioner discusses the changes that have taken place in its staffing structure and 
asserts that it has subcontractors and gets assistance from employees of its foreign parent entity. The 
Petitioner states that it disagrees with the Director's decision and contends that it needs an executive 
to manage the company and its assets. 
Upon de novo review of the record, we find that the Director did not offer an adequate analysis of 
the evidence submitted so that the Petitioner was afforded a fair opportunity to contest the decision 
and to allow us an opportunity for meaningful appellate review. See 8 C.F.R. § I 03.3(a)( I )(i); see 
also Muller of M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the 
reasons for denying a motion to allow the respondent a meaningful opportunity to challenge the 
determination on appeal). For example. the Director indicated that employee IRS Form W-2s were 
considered, noting that the Petitioner's staff appears to be comprised of full- and part-time 
employees. Based on this observation, the Director determined that the professional nature of the 
staff is in question. However, the Director did not explain why an employee's full- or part-time 
status should factor into a determination of whether they are a professional employee. Moreover. the 
Petitioner need only establish that those who are directly subordinate to the Beneficiary are 
supervisory. professional, or managerial employees. The Director appears to have erroneously 
placed upon the Petitioner an undue burden of establishing that its entire staff. including individuals 
who are not directly subordinate to the Beneficiary. are supervisory. professional. or managerial 
employees. 
Matter ofC-E-USA, Inc. 
Further, the Director referred to the Petitioner's submissions in response to a request for evidence 
(RFE) when concluding that the Petitioner did not establish that the Beneficiary would be employed 
in an executive capacity. While the Director's conclusion appears to be based on the Petitioner's 
RFE response, he did not offer specific findings about the evidence to explain why it was 
insufficient to meet the Petitioner's burden. Accordingly, we will withdraw the Director's decision 
and remand the matter for further proceedings consistent with our discussion below. 
I. LEGAL FRAMEWORK 
Section 203(b)(l)(C) of the Act makes an immigrant visa 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 atliliate. 
A United States employer may tile Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. The petition 
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. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
Although we will withdraw the Director's decision, the record as presently constituted is insutlicient 
to establish that the Beneficiary would be employed in an executive capacity as defined at section 
IOI(a)(44)(B) of the Act, 8 U.S.C. § IIOI(a)(44)(B). The Petitioner provided a broad list of the 
Beneficiary's responsibilities, indicating that she would report to "the Directive Board about the 
current situation of the company," ''establish good relations inside and outside the company," make 
discretionary decisions, stay informed about industry competitors, maintain "a direct line with all 
collaborators," and keep the company competitive to ensure that it remains profitable. The 
Petitioner did not, however, provide a sufficiently detailed list of the Beneficiary's specific job 
duties or include the estimated amount of time she would spend on those duties such that would lead 
us to conclude that the Beneficiary's duties would be primarily executive in nature. The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava. 724 F. 
Supp. II 03, II 08 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, the record does not include sufficient evidence to show that the Petitioner employed 
sufficient staff, when the petition was filed, to carry out routine operational tasks and thereby relieve 
the Beneficiary from performing non-qualifying duties. Although the Petitioner asserts that it had 
seven employees at the time of filing, the record indicates that several of those employees were 
employed on a part-time basis. While the Petitioner now claims that it relies, in part. on multiple 
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Matter ofC-E-USA, Inc. 
employees who work for the foreign entity to provide various operational tasks, the record lacks 
sufficient evidence to support this claim. The Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Matter of Chawathe. 25 I&N Dec. 369. 376 (AAO 201 0). 
Further, the Petitioner must establish that all eligibility requirements for the immigration benefit 
have been satisfied from the time of the tiling and continuing through adjudication. 8 C.F.R. 
§ 103.2(b)(l). That includes evidence to demonstrate that the Petitioner is sufficiently staffed and 
able to relieve the Beneficiary from having to allocate her time primarily to non-executive tasks. 
The definitions of executive and managerial capacity have two parts. First. the Petitioner must show 
that the Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. INS, 
940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991 ). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties. as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See. e.g. Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. The record as 
presently constituted does not meet these criteria. 
III. DOING BUSINESS 
In addition, while not previously discussed in the Director's decision, we note that the Petitioner did 
not establish, as required, that that it had been doing business for one year prior to filing this petition. 
8 C.F.R. § 204.5(j)(3)(i)(D). A petitioner may establish that it is "doing business" by demonstrating 
that it is providing goods and/or services in a regular, systematic. and continuous manner. 8 C.F.R. 
§ 204.5(j)(2). 
In the present matter, the Petitioner filed the Form 1-140 in August 2016. As such. in order to meet 
the regulatory requirements the Petitioner must establish that it started doing business in August 
2015. The petition indicates that the Petitioner operates as a manufacturer of aluminum toil. 
Evidence of its business transactions includes a packing list itemizing equipment and a 
corresponding March 2016 offer acceptance letter showing Petitioner's intent to purchase that 
equipment, presumably for the future manufacture of aluminum foil products. While the record also 
includes invoices showing that the Petitioner sold products in a regular. systematic. and continuous 
manner after March 2016, it does not show that the Petitioner either manufactured or sold its 
products prior to that date. In fact, the Petitioner states on appeal that 2016 was intended to be its 
"'first year of operations." While the Petitioner provided price quote letters from September and 
November 2015. both documents indicate that the Petitioner did not have the equipment it needed to 
actually start manufacturing the aluminum foil product it intended to sell and therefore it could not 
have started doing business in August 2015 as required. 
IV. CONCLUSION 
Although the Petitioner did not submit sufficient evidence to meet its burden of establishing that the 
Beneficiary will be employed in a managerial or executive capacity and that it had been doing 
business for one year prior to filing the instant petition, the Director's decision did not adequately 
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Matter ofC-E-USA, Inc. 
analyze the facts of the matter and apply the law. When denying a petition, the Director has an 
affirmative duty to explain the specific reasons for the denial; this duty includes informing a 
petitioner why the evidence did not satisfy its burden of proof pursuant to section 291 of the Act. 
8 C.F.R. § 103.3(a)(1)(i). As the Director did not satisfy this condition, we will withdraw the 
Director's decision and remand the matter for entry of a new decision. The Director should request 
any additional evidence deemed warranted and allow the Petitioner to submit such evidence within a 
reasonable period of time. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of'C-E-USA. Inc., ID# 881267 (AAO Jan. 11. 2018) 
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