sustained EB-1C Case: Import/Export

(b)(6)
DATE: AUG 2 0 2013 .. Office: NE:BRASKA SERVICE CENTER 
INRE : Petitioner : 
Beneficiary : 
U.S. Departme~t of Homeland SecuritY 
U.S: Citizenship and Immigration Services 
Adm inistrative Appeals Office (AAO) 
20 Massachu setts Ave., N.\\i. , Ms 2090 
Washingt(>n, DC 20529-2090. 
U.S. Citizenship · 
and Immigration 
Services 
~ ... 
PETITION: IIJlmigral)t Petition for Alien Worker as a Multinational Executive ot Manager P~Jrsuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, .8 U.S.C. § 1153(b)(l )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a 
noil"prec~dent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. 
TZA- . 
../R-on Rosenberg , 
/Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
., 
DJSCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will be 
withdrawn and the appeal will be sustained. 
The petitioner, a Washington corporation, is a subsidiary of 
located in· China. It is engaged in the import and sale of down and feather products and 
· the export ofseafood produ~ts and achieved $2.58 million in sales in 2011. It seeks to employ the beneficiary 
as its President at an annual salary of $96,000. Accordi_ngly, the petitioner endeavors to classify the 
behefieiaty as an employment-based immigrant pursuant to section 203(b)(I)(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 denied the petition, concluding that 
the petitioner failed to establish that the beneficiary would be 
employed In the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel asserts that the eyidence of record is suffi.cient to 
establish that the. beneficiary will be functioning in a managerial or executive position: 
I. The Law 
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 allen's application for classification arid admission 
into tbe United States under this subparagraph, has been employed 
for at least I 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 a.Iien under section 
203(b)(l)(C) of the Act as a inultination(l.l 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 
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NON-PRECEDENT DECISION 
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capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
§ 204 .5U)(5). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § ll0l(a)(44)(A), provides: 
The tertn "managerial capacity" means an assignment within an otgani~ation in which the employee 
primarily--
· (i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work <;>f other supervisory, professional 1 or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision ofthe organization~ 
(iii) ifi another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend tho~e 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 mimaged; and 
(iv) exercises discretion ovet 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 ate 
professional. 
II. The Issue on Appeal 
Tbe sole is~ue to be addressed is whether the petitioner eStablished that the beneficiary will be employed in 
the Un.ited States in a managerial or executive capacity. 
A. Facts 
The petitioner indicated on the Form I-140, Immigrant Petition for Alien Worker, t_llat it is an import/export 
firm for down and feather products as well as aquatic food products with six employee~ <111<1 gross sales of 
$2.5 million. The petitioner stated that it is an affiliate of the beneficiary's former foreign ~mployer, 
- - located in China. 
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the petitioner stated the beneficiary will be working as its President. In support of the initial petition, the 
petitioner provided a description of the position inCluding duties witb a breakdown of percentage of time 
spent performing duties within five areas of responsibility, which included overseeing the company's g·rowth, 
directing and overseeing its overall operations, overseeing the work of the company's vice president and two 
diVisions, directing long-term strategy and financial goals, and makjng major personnel decisions. The 
petitioner also provided several detailed examples of the beneficiary's recent managerial decisions, as well a.s 
(b)(6)
. NON-PRECEDENT DECISION 
.Page4 
a flow chart illustrating how he oversees the work of subordinate staff. For each of the beneficiary's direct 
and indirect subordinates, the petitioner provided a detailed job description including duties and percentage of 
breakdown of time spent performing each duty. Among other doCJJIJ.lentation, the petitioner also provided : 
copies of the petitioner's IRS Form 941 Employer's Quarterly Federal Tax Returns for 2011; IRS Form 1120, 
U.S Corporation Income Tax Return for 2011; an organizational chart; resumes of the beneficiary's 
subon:linates; and evidence of the company's substantial business C!.ctivities, including purchase orders, 
invoices, packing lists, a company brochure, and bank statements. 
The director issued a request for evidence ("RFE") requesting, in.ter alia, a more detailed job description for 
the beneficiary; a copy of the beneficiary's work calendar; clarification regarding which employees perform 
the non-managerial duties of the importing/exporting business; and evidence of educational ctedential .s f()r the 
beneficiary's subordinate employees. 
In response, the petitioner submitted the requested evidence. The petttloner proviqed · a 13-page job 
description for the beneficiary's position, along with the requested percentages of time spent on specific 
duties, and additional examples of his recent managerial dec_isions. The petitioner also provided the weekly 
job duties as requested. The petitioner explained that the itnpott manager performs the sales, marketing 
research, and oversees the petitioner's relationship with U.S. clients with respect to the doWn aM feather 
product import business, with assis.tance from the foreign entit)"s marketing team. The quality control 
i_nspector oversees that product of goods are performed to the client's order specifications. The petitioner 
explained that the goods are then imported to the end client through the client's import broker and are 
delivered directly to the client warehouse so that no warehouse workers ate needed. The petitioner further 
explained that the export manager is responsible for relations With U.S. seafood suppliers and Chinese 
importers <!.nd wholesalers and performs the day-to-day operational tasks associated Wit,h the ¢om:pan:y's 
export operations. 
'I 
Tbe -. di.rector dertied the petition, concluding that the petitioner failed to establish that th~ beneficiary will be 
employed in a primarily managerial or executive capacity. The director's conclusion was based on a finding 
t11at the petitioner failed to demonstr(!,te th<!.t the beneficiary will be primarily supervising a subordinate staff 
of professional, managerial or supervisory personnel who WO\lld relieve him from perforyning non-.qualifying 
duti¢s. 
On appeal, cou_nsel asserts states that the beneficiary supervises subordinate managerial personnel a)l<l th.at 
·there are staffayailable to relieve the beneficiary of non-qualifying duties. 
B. Analysis 
Upon revieW, the petitioner's assertions are persuasive. The AAO finds sufficient evidence to establish that 
the beneficiary will be empioyed in a qualifying executive cap<!,city. 
The director's finding was based solely on a determination that the beneficiary will not be "supervising a 
subordinate staff of professional, managerial, or supervisory personnel who .relieve the beneficiary from 
performing Iion-qualifyirtg dl)ties." The director provided no further discussion of the substantial evidence 
submitted, including the extremely detailed position descriptions provided for all employees of the petitioning 
coropa_ily a_nd specific examples of work performed by the beneficiary and his subordinates .. 
(b)(6)
NON-PRECEDENT DECISION 
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Upon review of the totality · of the evidence in ~he record, tile petitioner submitted sufficient documentary 
evidence to establish the beneficiary manages the petitioning organization, supervises a subordinate 
managerial employee, has the authority to hire and fire employees, and exercises discretion over the day-to­
day operations of the petitioning organization. See sections l01(a)(44)(A) of the Act. Moreover, the record 
establishes that the company has sufficient staff to relieve the beneficiary from involvement in the day~to~day 
operations of the company, and thus corroborates the petitioner's claim that the beneficiary allocates the 
majority of his titne to performing qualifying managerial duties that fall within the statutory definition. 
( 
Although the director appeared to base his decision partially on the size of the enterprise and the number of 
staff; the director did not tak~ into consideration the reasonable needs of the enterprise. As required by 
section 10l(a)(44)(C) of the Act, if st(:lffing levels are used as a factor in determining whether ail ifidiVid,ual;is 
acting in a managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage ofdevelopment of the organization , 
The petitioner is two-year old import and export company tba:t (lyhieved sales in excess of $2.5 million during 
its first full year in operations. The petitioner has established that it hired a tel:lrn of exp(!rienced full-time 
employees, · including a vice ptesiqent, to perform the day-to-day operations of the import .and export 
ciepartments and associated administrative functions, anci the record establishes that the company is supported 
in part, by the staff of its Chinese parent company with respect to its irnport business. Although the company 
is still smafl in size at this early stage of its development, the petitioner has explained in extensive detail how 
its reasonable needs are inet by its cQiTent staff ' 
While the beneficiary will be required to apply his business expertise in ca)Tying out his job duties and 
perform some operational ot administrative tasks, the petitioner has established by a preponqerlt,nce of the 
evidence that the majority of the day-to~day non~roanagerial tasks associated with the petitioner's business 
functions will ,be performed by other employees. Matter of Cluiwathe, 25 I&N Dec. 369, 376 (AAO 2010). 
As the statutory d,efinition discusses managerial capacity in the context of ''priR1l:lrily." the petit~oner need 
only establish that the beneficiary devotes more than half of his time to managerial duties. Section I 01 (a)(44) 
of the Act. The petitioner has met that burden. Accordingly, the director's decision will be withdrawn and the 
petition will be approved. 
III. ConclUsion 
Ifi visa petjtion proceedings, it is the petitioner's burden to establish eligibil.ity for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has been met. 
ORDER: The appeal is sustained.