sustained EB-1C Case: Freight Forwarding

U.S. Department of Homeland Securitv 13 f 
20 Mass Ave , N W , Rrn A3042 
? Washington, DC 20529 
I. 
U.S. Citizenship 
and Immigration 
Y 
FILE: WAC 04 113 53009 Office: CALIFORNIA SERVICE CENTER Date: JAN 0 6 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 8 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Off~ce in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiernann;6irector 
AAdministrative Appeals Office 
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Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is a corporation organized in the Territory of Guam in January 2000. It is an international 
freight forwarder. It seeks to employ the beneficiary as its general manager. Accordingly, the petitioner 
endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 1153(b)(l)(C), as a multinational executive or 
manager. 
The director determined that the petitioner had not established that the beneficiary had been employed in a 
managerial or executive capacity by the foreign entity or would be employed in a primarily managerial or 
executive capacity for the United States petitioner. 
On appeal, counsel for the petitioner asserts that the director's denial is arbitrary, capricious, and not 
supported by substantial evidence. Counsel submits a brief in support of the appeal. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding 
the time of the alien's application for classification and admission 
into the United States under this subparagraph, has been employed 
for at least 1 year by a firm or corporation or other legal entity or an 
affiliate or subsidiary thereof and who seeks to enter the United 
States in order to continue to render services to the same employer or 
to a subsidiary or affiliate thereof in a capacity that is managerial or 
executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement that indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
9 204.56)(5). 
' 
WAC 04 1 13 53009 
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The issue in this proceeding is whether the beneficiary had been employed in a managerial or executive 
capacity for the foreign entity and will be employed in a managerial or executive capacity for the United 
States entity. The petitioner provided the same job descriptions for both the beneficiary's foreign position 
and that of the proposed position with the petitioner. The petitioner requests consideration of the beneficiary's 
classification as a multinational manager. On appeal, counsel asserts that the beneficiary's job duties also 
satisfy the criteria set out in the executive capacity definition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
I. manages the organization, or a department, subdivision, function, or 
component of the organization; 
. . 
11. 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; 
... 
in. if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
iv. exercises discretion over the day to day operations of the activity or function 
for which the employee has authority. A first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. $ 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
I. directs the management of the organization or a major component or function 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
... 
111. exercises wide latitude in discretionary decision making; and 
WAC 04 1 13 53009 
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iv. receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In an undated letter appended to the petition, the petitioner indicated that the beneficiary would be employed 
in a managerial capacity, managing all aspects of the petitioner's business including over 27 employees.' The 
petitioner added that the beneficiary would supervise and control the work of other professional and 
supervisory employees, managing all essential functions of the petitioner, have the authority to hire and fire 
employees, and exercise discretion over the day-to-day operations of the business. The petitioner also 
attached a description2 of the position of general manager that indicated the general manager would be 
"responsible for setting up the company and overall operations and supervision of all fasset [sic] of works." 
The petitioner also provided its organizational chart3 depicting the beneficiary as the general manager over 
seven departments, including: (I) airfreight department consisting of a manager, an assistant, a supervisor and 
a clerk; (2) ocean freight department consisting of a managerlinbound clerk, outbound clerk and two drivers; 
(3) warehouse department consisting of a manager and three helpers; (4) trucking department consisting of a 
manager, an expediter, and two drivers; (5) sales department consisting of three salespersons; (6) finance and 
administration department consisting of a manager, an accountant, and an assistant; and, (7) "Mell" 
department consisting of a manager, shipping inbound assistant, shipping outbound assistant, and shipping 
operations assistant. 
On January 11, 2005, the director requested a more detailed description of the beneficiary's duties including 
what the beneficiary would do in the day-to-day execution of his position, whom the beneficiary directs 
including their job title and position description, and the percentage of time the beneficiary spends in each of 
the listed duties. 
On April 1, 2005, the petitioner provided a revised job description for the beneficiary's foreign position and 
proposed position. The petitioner indicated that the beneficiary had and would: 
Plan, organize, direct, control and evaluate divisions responsible for coordinating, 
arranging and monitoring the transportation and movement of goods 
Arrange for shipping documentation and oversee the scheduling and dispatching of 
goods and the tracking and tracing of goods in transit 
Set performance goals, oversee the setting of transportation service rates and monitor 
revenue and push sales and marketing plan. [sic] 
Develop plans and procedures for the transportation and storage of goods 
' The petitioner did not identify the number of employees under the beneficiary's supervision when he was 
employed with the foreign entity. 
The petitioner attached the beneficiary's resume that indicated the beneficiary had been employed for the 
foreign entity as a general manager and listed the same description as that provided for beneficiary's position 
with the petitioner. 
The petitioner initially did not provide an organizational chart for the foreign entity. 
' WAC 04 1 13 53009 
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Negotiate with carriers, warehouse operators and insurance company representatives 
for services and preferential rates 
Control the departmental budget 
Recruit personnel and oversee their training. 
The petitioner provided brief job descriptions for the individuals directly reporting to him. The petitioner also 
provided a breakdown of the beneficiary's duties as: 
Hire and Fire Staff 10% 
Meet with major customers and negotiate contracts 5% 
Supervise work of subordinate managers 50% 
Explore potential additional product lines 5% 
Manage all aspects of business 20% 
Set policies to insure profitable operation of business 10% 
The petitioner also provided the foreign entity's organizational chart depicting the beneficiary in the position 
of general manager over: the operations division made up of the trucking department, motor pool department, 
warehouse department, and "Mell" department, the ocean freight departmentladministrative division, 
airfreight department, accounting division, and marketing division. The petitioner provided brief job 
descriptions for the individuals directly reporting to him and also listed the same allocation of time and duties 
for the beneficiary's foreign position. 
On May 20, 2005, the director denied the petition, determining that: (1) the percentage of time the petitioner 
had allocated to the beneficiary's supervision of subordinate managers would be time spent on executive type 
functions, that 10 percent of his time spent on hiring and firing employees did not seem likely, and that 5 
percent of his time appeared to be involved in routine operational activities rather than in the management of 
a function such as negotiating contracts with customers; and, (2) the description of the beneficiary's duties 
was not comprehensive. 
On appeal, counsel for the petitioner asserts that the job descriptions provided in response to the director's 
request for further evidence are a more detailed description of the beneficiary's duties and list all divisions, 
names, and responsibilities of the divisional managers under the beneficiary's supervision. Counsel also notes 
that if the director had reviewed the entire record, it would be easy to see that the petitioner is a component of 
a sophisticated corporate conglomerate and easy to conclude that the beneficiary is qualified as an 
international manager. Counsel also notes that the director failed to explain why prior L-1A intracompany 
transferee petitions had been approved based on the same managerial/executive criteria. 
Counsel's assertion is persuasive. When examining the executive or managerial capacity of the beneficiary, 
Citizenship and Immigration Services (CIS) will look first to the petitioner's description of the job duties. See 
8 C.F.R. tj 204.56)(5). The petitioner's initial description of the beneficiary's duties was general and did not 
differentiate between the beneficiary's managerial duties and the beneficiary's non-managerial duties. The 
petitioner's second iteration of the beneficiary's duties, however, provided a description that more clearly 
defined the beneficiary's actual duties. Most importantly, the petitioner has provided evidence of the 
' WAC 04 1 13 53009 
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beneficiary's subordinates and their subordinates duties. Contrary to the director's tortured reasoning, the 
AAO finds the petitioner's allocation of the beneficiary's time reasonable based on the petitioner's 
organizational structure. Further, Citizenship and Immigration Services (CIS) should not hold a petitioner to 
an unsupported and speculative view of the petitioner's business practices. The director should instead focus 
on applying the statute and regulations to the facts presented by the record of proceeding. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). Although the beneficiary spends some time performing routine 
operational paperwork functions, the beneficiary in both the foreign position and the proposed position is 
primarily supervising other employees and other aspects of the business. Although the AAO would prefer 
that the petitioner and the foreign entity support the number of employees claimed, with Quarterly Wage 
Reports, Internal Revenue Service (IRS) Forms 1120, U.S. Corporation Income Tax Return, and payroll 
records, the director did not request such evidence. However, upon review of the totality of the record, 
including the petitioner's description of the beneficiary's duties, the petitioner's organizational chart, the 
presence of other employees to relieve the beneficiary from performing operational duties, the brief job 
descriptions of the beneficiary's subordinates, and the nature of the petitioner's business, the evidence is 
sufficient to demonstrate that the beneficiary is a mid-level manager supervising other supervisors and 
managers. 
A critical analysis of the nature of the petitioner's business strengthens counsel's claim that the beneficiary 
managed the foreign entity and manages the petitioner's office through the employment of a number of 
subordinate employees. As can be seen from the foreign entity and the petitioner's multi-layered managerial 
structure the beneficiary's position was senior within the organizational management hierarchy and with 
respect to the company's other employees. 
Despite the beneficiary's managerial title, the petitioner's claim that the beneficiary qualifies as an executive is 
most persuasive. The statutory definition of the term "executive capacity" focuses on a person's elevated 
position within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 
U.S.C. 5 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" 
and "establish the goals and policies" of that organization. Inherent to the definition, the organization must 
have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they have an 
executive title or because they "direct" the enterprise as the owner or sole managerial employee. The 
beneficiary must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. While the beneficiary may qualify as either a manager or executive under the statute, the 
beneficiary's position within the petitioner's complex organizational hierarchy leads the AAO to conclude that 
the beneficiary primarily serves in an executive capacity. 
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Of note, the approval of other petitions involving managerial or executive capacity is not probative in this 
matter. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). The prior approvals are separate records of 
proceeding, not part of the current record, and the AAO will not consider the prior approvals in the 
adjudication of this appeal. In this matter, however, the record before the AAO contains sufficient evidence 
to overcome the director's decision on the issues of the beneficiary's managerial and executive capacity for the 
foreign entity and the petitioner. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has been met. 
ORDER: The appeal is sustained.