remanded EB-1C Case: Trucking

U.S. Citizenship 
and Immigration 
Services 
In Re: 15368078 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 27, 2021 
Form I-140, Petition for Multinational Manager or Executive 
The Petitioner, a trucking company, seeks to permanently employ the Beneficiary as its president under 
the first-preference, immigrant classification for multinational executives or managers. See Immigration 
and Nationality Act (the Act) section 203(b )(1 XC), 8 U.S.C. § 1 l 53(b)(l)(C). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner had been doing business for at least one year prior to filing 
the petition. We dismissed the Petitioner's subsequent appeal on the same grounds. We further 
observed that the record before us did not establish that the Beneficiary would be employed in the 
United States in an executive capacity. 
The matter is now before us on a motion to reopen. Upon review, we will grant the motion and remand 
the matter to the Director of the Texas Service Center for further review and entry of a new decision. 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). The regulation at 8 C.F.R. § 103.5(a)(l )(i) limits our authority to reopen or reconsider 
to instances where the Petitioner has shown "proper cause" for that action. Thus, to merit 
reconsideration, a petitioner must not only meet the fonnal filing requirements (such as submission of 
a properly completed Form I-290B, Notice of Appeal or Motion, with the correct fee) , but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See8 C.F.R. § 103.5(a)(4). 
II. 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 I-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(i)(3). The petition must also be 
accompanied by evidence demonstrating the Petitioner's ability to pay the Beneficiary's proffered 
wage at the time of filing. 8 C.F.R. § 204.5(g)(2). 
III. ANALYSIS 
The Director denied the petition, and we dismissed the Petitioner's subsequent appeal, based on a 
conclusion that the Petitioner did not submit sufficient evidence to establish that it had been doing 
business as defined in the regulations for at least one year at the time it filed this petition on November 
6, 2017. See 8 C.F.R. § 204.5(i)(i)(3)(D). The issue before us on motion is whether the Petitioner 
has submitted new facts sufficient to establish that it satisfied this regulatory requirement when the 
petition was filed. 
A. Motion to Reopen 
In support of its motion to reopen, the Petitioner has provided additional documentation ofits business 
activities. Specifically, this evidence includes business invoices issued to clients which are dated more 
than one year prior to the date of filing, along with complete copies of its bank statements which 
demonstrate the Petitioner's receipt of payments that conespond with the billed amounts indicated on 
the invoices. With this new evidence, the Petitioner has established, by a preponderance of the 
evidence, that it satisfied the doing business requirement at 8 C.F.R. § 204.5(i)(i)(3)(D). 
As this issue was the sole basis for the denial of the petition and dismissal of the appeal, our prior 
decision, and the Director's decision, are withdrawn. 
B. Basis for Remand 
Although the Petitioner has overcome the sole ground for denial, the evidence of record is not 
sufficient to establish that the Beneficiary would be employed in the United States in an executive 
capacity as defined at section 101 ( a )(44)(B) of the Act. Accordingly, the matter will be remanded to 
the Director for further review and entry of a new decision. 
In our prior decision, we observed that the record did not establish that the Beneficiary's proposed 
employment would be in the claimed executive capacity. Specifically, we noted that there were 
unexplained inconsistencies in the record regarding the number of employees working for the 
company at the time of filing and further noted that some of the documented employees appeared to 
be working on a part-time basis. We emphasized that a beneficiary employed in an executive capacity 
must primarily focus on the broad policies and goals of the business rather than on its day-to-day 
operations, and determined that, based on the small number of employees, the observed 
inconsistencies, and other factors, the Petitioner did not meet its burden to establish that it would 
require the Beneficiary to work in such a capacity. Although we did not deny the petition based on 
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this separate ground, we advised the Petitioner that any future filing in the matter should "explain the 
inconsistencies of record" and "included independent objective evidence that the Beneficiary would 
work in the claimed executive capacity." 
On motion, the Petitioner has attempted to resolve the inconsistencies we observed with respect to its 
staffing levels. For example, we emphasized that although the Petitioner stated on the Fonn I-140 that 
it had six employees atthe time of filing, the most recent quaiierly wage report provided indicated that 
the Petitioner had only four employees. 1 The Petitioner now exp la ins that its staff of truck drivers 
"has a high percentage of rotation, so it is difficult to keep them on a fixed payroll for a long period 
of time" and notes that its drivers generally prefer to be paid as independent contractors on Form 1099. 
The Petitioner submits copies of all IRS Forms W-2 and 1099 it issued in 201 7, showing that it paid 
four employees and five contractors. 2 
While this evidence reflects the total number of employees who worked for the Petitioner in 2017, it 
does not establish who was employed at the time of filing in November 2017. Further, the record 
reflects that the Petitioner claimed to employ exactly the same personnel when responding to the 
Director's request for evidence (RFE) in October 2018 as it did in November 2017, notwithstanding 
the Petitioner's claim that it experiences regular turnover among its staff of drivers. 
In response to our observation that one of its drivers appeared to work part-time based on his reported 
2017 W-2 earnings ($8050), thePetitionerprovides a copy of the employee'sIRSFormI-9 as evidence 
that he joined the company in May 2017 and states that he worked only through November 2017. 
While this explains his relatively low wages earned in 201 7, the Petitioner does not explain why this 
same employee was listed among the company's drivers when it responded to the RFE in 2018. 
The new evidence submitted on motion also raises questions as to whether the Beneficiary's direct 
subordinate, a business operations manager, remained with the company while the petition was 
pending. The record reflects that this employee I ,I was paid $3800 in the first quarter of 
2017, $6900 in both the second and third quarters of 2017, and, according to his IRS Form W-2, 
$19,900 in 201 7. Based on this evidence, we can conclude thatl I earned only $23 00 in the 
last quarter of 201 7, which suggests that he either left the company during that quarter or significantly 
reduced his work hours. As noted, the Petitioner claimed thatl lcontinued to serve in the 
business operations manager position at the time it responded to the RFE in October 2018 but did not 
submit evidence that would corroborate his ongoing employment. 
For these reasons, the additional evidence provided on motion does not resolve the deficiencies in the 
evidence relating to the Petitioner's staffing levels at the time of filing, and also raises questions as to 
whether it maintained the structure depicted in its initial organizational chart while the petition was 
~- The initial organizational chart identified the Beneficiary as the company president,D 
L___Jas business operations manager, a logistics manager (reporting tol L and three 
drivers, at least one of which is now claimed to have left the company 
1 In its initia I letter in support of the petition, the Petitioner indicated that it "currently possesses a structure of 6 direct 
employees, as well as 1 independent contmctor(thecompany'sAccountant)." 
2 Three of the individuals who received IRS Forms 1099in 2017 were not claimed to be workingforthe company asof 
November2017when the petition was filed. 
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In order to classify the Beneficiary as a multinational executive under section 204.5(j) of the Act, the 
Petitioner must show that he will perform the high-level responsibilities set forth in the statutoty 
definition at section 10l(a)(44)(B)(i)-(iv) of the Act. The Petitioner must also prove that the 
Beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational activities 
alongside its other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
In dete1mining 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 beneficiaty 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. The fact that the Beneficiary will 
manage or direct a business as its majority owner and senior-most staff member does not necessarily 
establish eligibility for classification as a multinational executive within the meaning of section 
101(a)(44) of the Act. 
Here, the Petitioner indicates the Beneficiary's responsibilities include: planning and developing the 
company's "operational policies and procedures," "management structure," "budget and financial 
strategies," "marketing and sales strategies," and "financialinvestmentplans"; hiring managerial staff; 
securing agreements with accountants, outside corporate legal representation, and financial advisors; 
and researching current and projected U.S. market trends. The Petitioner further states that the 
Beneficiary would spend 35% of his time on "discretionary decisions related to business and 
operations policies and procedures, 30% of his time to "discretionary decisions related to investment 
and new business opportunities," and 35% of his time "discretionary decisions related to financial 
affairs." The job duties the Petitioner lists under each of these areas are repetitive and overlapping, 
with many activities related to long-range planning, undefined "expansion plans," capital raising 
strategies, and investment portfolio management. 
While lengthy, the job description provided for the Beneficiary is so general that it could describe a 
senior position within any company. It lacks references to specific tasks the Beneficiary would 
perform on a day-to-day basis within the context of the Petitioner's business, a trucking company 
which is still at an early stage of development. Reciting a beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), {~ff'd, 905 F.2d 
41 (2d. Cir. 1990). Here, the Petitioner has not provided the necessary detail or an adequate 
explanation of the Beneficiary's activities in the course of his daily routine. 
The job duties attributed to the Beneficiary's direct subordinate, the business operations manager, are 
described in similarly vague terms. For example, the Petitioner states that this employee spends 10% 
of his time overseeing activities performed by the logistics manager and 20% of his time "managing 
the day-to-day operations of the business in terms of sales strategies, marketing goals and monitoring 
of sales results" but the Petitioner does not claim to have any staff dedicated to sales or marketing 
activities. The Petitioner further states that the business operations manager spends the majority of his 
time (the remaining 70%) on general budgetary and finance-related matters, such as coordinating 
financial, credit and collections matters, analyzing budgets/forecasts, and preparing forecasts and 
reports. Therefore, although the employee's title is business operations manager, it is unclear how he 
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relieves the Beneficiary from performing operational tasks related to the day-to-day running of a 
trucking business. 
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 and that they are consistent with the nature 
and scope of the business and its current stage of development. Submitting an organizational chart 
with multiple tiers of subordinate employees with managerial job titles is not sufficient to establish 
that an organization is sufficiently complex to support an executive position. Even if the evidence 
established that the company continued to employ all staff listed on the Petitioner's initial 
organizational chart, the record as presently constituted does not establish the company's ability to 
support the Beneficiary in a position that is primarily executive in nature. 
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. Moreover, 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. § I 03.2(b )(1). A petitioner's burden is not discharged 
until the immigrant visa is issued. Tongatapu Woodcraft of Haw., Ltd. v. Feldman, 736 F.2d 1305 
(9th Cir. 1984). 
On remand, the Director should provide notice of the evidentiary deficiencies addressed herein with 
respect to the Beneficiary's proposed U.S. employment in an executive capacity and provide the 
Petitioner a reasonable opportunity to respond. At a minimum, the Director should request detailed 
job descriptions for all staff employed at the time of filing, evidence to corroborate the Beneficiaiy's 
perf01mance of the claimed executive-level duties, evidence documenting the company's payroll fmm 
the fourth quaiier of 2017 until the present time, and evidence related to the company's current 
staffing, including an organizational chart and job descriptions for current employees. 
In addition, the Director should request additional evidence as appropriate to determine whether the 
Petitioner maintains a qualifying relationship with the Beneficiary's foreign employer, thatthe foreign 
and U.S. entities continued to do business as defined in the regulations, and that the Petitioner 
continues to have the ability to pay the Beneficiary's proffered wage. 
IV. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration. 
ORDER: The motion to reopen is granted, and the matter is remanded for the entry of a new 
decision consistent with the foregoing analysis 
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