remanded EB-1C Case: Wholesale Trade

MATTER OF A-A- INC ( 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 7, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
, PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a wholesaler of scarves, eyeglasses, and related accessories, seeks to permanently 
employ the Beneficiary as its president and treasurer 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. § l 153(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 record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director erred by making unwarranted assumptions about 
the nature of the company and its employees. 
· Upon de nova 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. 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 iri. a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
service_s 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 
· 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. § 204.50)(3). 
;. Matter of A-A- Inc. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
\ The Petitioner asserted that it will employ the Beneficiary as both an executive and a manager. The 
Director found that the Petitioner did not show that the position meets the requirements of either type 
of capacity (defined at section 101(a)(44)(A) and (B) of the Act). 
!. 
The Director based this conclusion on three specific points: 
• The Petitioner claimed to delegate lower-level work to contractors. and consultants, but the 
supervision of contractors is not a managerial activity because contractors are not employees. 
• The Beneficiary's subordinates, identified as managers, earned "salaries ... consistent with 
the salaries of retail sales people rather than that of sales managers." 
• "The petitioning entity's staffing levels appear to be Woefully inadequate" to relieve a 
manager or executive_ from having to perform non-qualifying tasks. 
For the reasons explained below, we agree that the Petitioner has not yet met its burden of proof to 
establish eligibility. However; the specific grounds stated in the denial notice did not give the 
Petitioner a sufficient opportunity to address these deficiencies on appeal. 
A. Contractors 
A manager "supervises. and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or s~bdivision 
of the organization." Section 101(a)(44)(A)(ii) of the Act. It is true that contractors are not 
employees, but a manager can rely on contractors to carry out an essential function of the 
organization, provided that the manager retains managerial control over that function. 
As a result, the Petitioner's a~serted reliance on contractors is not, itself, a proper ground for denial 
of the petition. Nevertheless, the burden remains on the Petitioner to show that the various 
employees identified as managers exercise managerial control over the contracted activities. (Mere 
delegation, by itself, does not necessarily connote managerial authority.) The Petitioner has not yet 
provided enough information and evidence in _this regard. 
Furthermore, it _is not sufficient for the Petitioner simply to• claim that it relies on contractors. _ The 
Petitioner must establish the nature and extent of the contracted' work, by submitting copies of 
contracts; agreements, work orders, or other documentary evidence .that l;!Stablishes: (1) the nature of 
the work performed by the contractors; (2) the time devoted to the contracted work; (3) the price of 
the contracted work; ( 4) actual payment for services rendered; and (5) that the work did occur or is 
occurring. In this case, the record contains a list of claimed contractors, and copies of individual 
checks paid to some of these contractors, but this fragmentary evidence is not sufficient to meet the 
Petitioner's burden of proof. The Petitioner has not shown what these contractors do or the extent 
of the Petitioner's control over the contractors'. activities. Also, the Petitioner has not shown 
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Matter of A-A- Inc. 
whether the contractors are committed to work exclusiv"ely for the Petitioner over a specified period 
of time, or only provide services on an intermittent, as-needed basis. 
Apart from contractors and consultants, the Petitioner's organizational chait includes employees of 
the foreign parent company. This is consistent with assertions in the record that the parent company 
manufactures goods which the Petitioner then imports and sells. But the Petitioner needs to 
document this activity more fully , to establish (1) the employment of the identified foreign 
employees; (2) that those foreign employees are dedicated to suppoiting the petitioning U.S. entity; 
and (3) that the Beneficiary or his subordinates exercise managerial or executive authority over those 
foreign employees. It cannot suffice to establish simply that the Petitioner"acts as a sales office for 
the foreign manufacturer. Without further clarification and evidence, such sales activity would tend 
to indicate that the Petitioner supports the foreign entity and acts at the foreign entity's direction, 
rather than the other way around. 
B. Salaries 
The record indicates that most of the Beneficiary's subordinates earn annual salaries between 
$16,800, and $31,200 per year. (The Petitioner initially claimed that some of these salaries were 
higher, but supplementary informatio~ submitted in response to a request for evidence included the 
lower figures.) 
The Director found these salaries to be at the level of retail sales workers rather than managers. The 
Petitioner, on appeal , protests that it is not primarily a retail operation , and that the Director appears 
arbitrarily to have decided that the subordinates are retail sales workers. 
We agree with the Petitioner that the record contains no affirmative evidence that the subordinates 
are retail sales workers, and therefore this conclusion cannot stand. Nevertheless, the salary figures 
raise serious questions that the Petitioner must address in order to establish eligibility. The 
Petitioner asserted that the specified positions are full-time, but if that is the case, then many of the 
salaries are lower than the ____ minimum wage. (The Petitioner's address of record is in 
In 2018, for a employer with 10 or fewer employees, the minimum wage was $12.00 
per hour ($24,960 per year for a 40-hour . week). We note that the Petitioner ' s 2018 organizational 
chart showed two vacant positions. Filling those positions would give the Petitioner 12 employees, 
and raise the minimum wage to $13.00 per hour ($27,040 per year for a 40-hour week). 1 The 
Petitioner reported salaries below that level for most of the identified subordinate positions. 
Salary alone does not establish the actual responsibilities of a given position, but the burden remains 
on the Petitioner to show that the individuals receiving those salaries are in fact full-time managers 
performing the duties claimed. The Petitioner has not yet met that burden. 
1 See https://www.ny.gov/new-york-states-minimum-wage/new-york-states-minimum-wage (last visited Jan. 31, 2019). 
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Matter of A-A- Inc. 
C. Staffing Level 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, the Director 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. 
The Director found that the Petitioner's "staffing levels appear to be woefully inadequate" to relieve 
the Beneficiary from having to perform primarily non-qualifying tasks. . The Director did not· 
elaborate further on this point. 
If the Petitioner does, indeed, delegate significant operational functions to contractors, consultants, 
and employees of the foreign parent company; then the small size of the Petitioner's in-house staff is 
not necessarily disqualifying. As explained above, more information and evidence are needed in 
this regard, but the decision, as worded, did not fully apprise the Petitioner of this necessity so that 
the Petitioner could address it on appeal. 
D. Duties 
When 'examining the managerial or exe~utive capacity of a given beneficiary, we will look to 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 or executive capacity. See 8 C.F.R. § 204.5(j)(5). 
r'n this instance, the Director's decision does not address the Beneficiary's duties as described in the 
record. For the most part, the Beneficiary's job description dwells more on the Beneficiary's high­
level responsibilities than the specific tasks he performs in order to meet those responsibilities. 
Also, several tasks, as described, appear to be amenable to further v~rification and substantiation, for 
example through review of past work product. For example, the list of the Beneficiary's duties 
refers to "fashion trend recommendations received froni Marketing & Sales Departments," as well as 
plans, budgets, and other materials which should be available for submission in documentary form. 
As described .above, the Petitioner has not yet established that it employs, and will continue to 
employ, the Beneficiary in a managerial or executive capacity, but the denial notice, as issued, did 
not sufficiently allow the Petitioner to remedy the deficiencies in the record. 
III. LOCATION AND SECOND COMPANY 
Beyond the issues discussed above, another issue appears to warrant further inquiry. Information 
relating to. this issue derives from sources outside the record. Because this remand order is not a· 
final decision, it serves as notice to the Petitioner that U.S. Citizenship and Immigration Services 
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Matter of A-A- Inc. 
(USCIS) is aware of the information and may take it into consideration. See 8 C.F.R. 
§ 103.2(b)(l6)(i). 
Throughout this proceeding, the Petitioner has claimed the street address 
New York. An assumed name certificate shows that the Petitioner has been 
using the name 
been doing business as 
as. _ 
identifying two websites: 
Invoices in the record likewise indicate that the Petitioner has 
The same invoices also show the Petitioner's email address 
The Petitioner also submitted a copy of a promotional flier . 
and 
We have been unable to verify the existence -of an active website named 
According to the site name has been registered but 
there is, at present, no site associated with the name. 
A banner on the website identifies the company as 
A copyright ·notice on that website names . 
copyright holder. The website does not include any mention of the Petitioner, 
A search of New York business records 2 shows that incorporated 
at -~ in 2007. That company remains active. 
is also vice president of the petitioning entity and owns 40% of its stock. 
as the 
According to 
Address" at 
website 3 show the address as 
appears on the website. 
has a "Showroom 
New York. Archived copies of older versions of the 
an address that no longer 
The above information raises questions about the extent of the business activity undertaken by the 
· -petitioning entity , as opposed to the activities of 
which is a separate legal entity that shares ( or used to share) an officer and an address with the 
Petitioner. The relationship, if any, between the two companies also requires further scrutiny. 
In light of the above, we note that USC IS has discretion to verify the claims set forth in visa petitions 
by a. variety of means, including on-site inspections and public records searches. The above 
information warrants further inquiry and verification . 
2 . 
Searchable database at https://appext20.dos.ny.gov/corp_public/CORPSEARCH.ENTITY _SEARCH_ENTRY (last 
visited Jan. 31, 2019). 
:i An example can be found at https://web.archive.org/web/ ______________ / (last visited. 
Jan. 31, 2019). · 
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Matter of A-A- Inc. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. · 
Cite as Matter of A-A- Inc., ID# 1982049 (AAO Feb. 7, 2019) 
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