u.s. citizenship non-precedent decision of the and ... · (c) certain multinational executives and...

U.S. Citizenship and Immigration Services

MATTER OF E-C-USA INC

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 11,2017

APPEAL OF NEBRASKA SERVICE CENTER DECISION

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a wholesaler of cosmetic nail products produced by its foreign affiliate, seeks to permanently employ the Beneficiary as its managing director 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)(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, Nebraska Service Center, denied the petition, concluding that the evidence of record did not establish that: ( 1) the Beneficiary will be employed in the United States in a managerial or executive capacity; and (2) the Beneficiary has been employed abroad in a managerial or executive capacity.

The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in denying the petition because the Beneficiary's past and present positions meet all ofthe criteria of an executive capacity.

Upon de novo review, we will dismiss the appeal.

I. 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 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 affili&te or subsidiary thereof and the alien seeks to

Matter of E-C-USA Inc

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.

A United States employer may tile Fonn 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. A labor certification is not required for this classification.

The regulation at 8 C.F.R. § 204.50)(3) states:

(3) Initial evidence-

(i) Required evidence. A petition for a multinational executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that:

(A) If the alien is outside the United States, in the three years immediately preceding the filing of the petition the alien has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or

(B) If the alien is already in the United States working for the same employer or a subsidiary or affili,ate of the firm or corporation, or other legal entity by which the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;

(C) The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas; and

(D) The prospective United States employer has been doing business for at least one year.

II. ANALYSIS

The Director denied the petition based on a finding that the Petitioner did not establish that: (1) the Beneficiary will' be employed in an executive capacity; and (2) the Beneficiary has been employed abroad in an executive capacity. The Petitioner does not claim that the Beneficiary will be or has been employed in a managerial or executive capacity. Therefore, we restrict our analysis to whether the Beneficiary will be and has been employed in an executive capacity.

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Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as "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;

(ii) establishes the goals and policies of the organization, component, or function;

(iii) exercises wide latitude in discretionary decision-making; and

(iv) receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) 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 10l(a)(44)(C) ofthe Act.

A. U.S. Employment in an Executive Capacity

The regulation at 8 C.P.R. § 204.5(j)(5) requires the Petitioner to submit a statement which indicates that the Beneficiary is to be employed in the United States in a managerial or executive capacity. The statement must clearly describe the duties to be performed by the Beneficiary.

1. Duties

When examining the managerial or executive capacity of a given beneficiary, we will look first 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.P.R. § 204.5(j)(5).

The Petitioner filed Form I-140 on June 2, 2015. The Petitioner stated that the Beneficiary "has wide latitude in discretionary decision making, including setting policy and goals for the [Petitioner] and entering into legally binding contracts on behalf of our U.S. corporation, such as exclusive distribution deals." In this initial letter, the Petitioner repeated or paraphrased the language in the statutory definition of "executive capacity," and described the roles of various subordinate departments (most of which are actually outside the petitioning entity), with the general assertion that those departments operate under the Beneficiary's direction. The discussion of the departments includes the following passages specific to the Beneficiary:

[A contractor] is responsible for producing our products and compounds within the budgets set by [the Beneficiary]. . . . All of the manufacturing department heads report to [the Beneficiary], submitting to her for final approval design, manufacturing

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changes and production budgets. [The Beneficiary] in turn directs and oversees manufacturing processes, quality control and directs adjustments to these in line with corporate business and financial goals.

Our Product Distributor Department for North and South America is overseen by [the Beneficiary] who in her executive capacity negotiates and enters into lucrative business contracts on behalf of the corporation ....

In addition, [the Beneficiary] sets financial goals and works with our contract accountant in meeting those goals, and processing payroll, tax payment, customs and other government fees and vendor payments in a responsible manner. Furthermore, [the Beneficiary] consults and retains corporate business transactional and litigation counsel, and immigration counsel services on a project to project basis.

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Other references to the Beneficiary simply indicate that the subordinates act under her direction.

The Director issued a request for evidence (RFE), stating that the Beneficiary's job description did not provide details about her actual tasks. The Director requested more information about the Petitioner's business with documented information about the Beneficiary's role in the company.

In response1 the Petitioner stated:

[The Beneficiary] does not perform any non-qualifying duties. She is the highest level executive at the petitioner and directly reports to our board of directors and our founder. . . . [The Beneficiary] directs the various departments of the petitioner. Some departments function in Hungary .... However, [the Beneficiary] oversees and directs this [work]. Based on her experience of the US market she directs the graphics team, and our social media team, in the marketing dep'artment, on what types of catalogues, marketing materials and social media postings she wants for the U.S. subsidiary.

In addition, she oversees all of our manufacturing processes in the United States.

The Petitioner listed the Beneficiary's "general duties":

• Direct the activity and productivity of the entire organization • Determine the direction . of the company based on financial and market

information • Oversee product design (R&D), manufacturing and quality control in the US • Oversee introduction of new products and design in the US • Develop market opportunities in the US • Direct and oversee branding and brand management in the US

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• Corporate culture and image development in the US • Oversee brand promotion (trade dress, corporate responsibility, advertising and

other marketing and promotional developments) • Set responsible budgets for the US subsidiary • Oversee and provide final approval on budgets submitted by department heads • Monitor US subsidiary's financial position • Oversee the development of business, advertising and promotional budgets • Oversee business negotiations and enter into contracts on the US corporation's

behalf • Set goals and policies for the US office with wide latitude in, discretionary

decision making • Reports directly to the executive board

The Petitioner stated that the Beneficiary's position meets all four requirements of an executive capacity:

The beneficiary ... directs the management of the organization, or a major component or function of the organization

. : . [The Beneficiary] develops plans, policies, and tools, which are used by the company to design, manufacture, market and distribute the [Petitioner's] brand line of beauty products in the United States. [The Beneficiary] also disseminates policies to all departments under her authority. These policies involve emphasizing new product trends; identifying products that need to be redesigned or discontinued; identifying new buying habits; setting pricing based on competitive market and research analysis and making sure that the product delivered is consistent with the [Petitioner's] brand vision of innovative and high quality products.

The beneficiary . . . establishes the goals and policies of the organization, component, or function

. . . [The Beneficiary] develops innovative tools and policies, which are then implemented by the entire organization. In addition, [the Beneficiary] is responsible for determining whether the company is effectively implementing policies, as well as manufacturing, distribution and sales goals as set forth by her. In doing so, [the Beneficiary] has the authority to make changes in organizational structure, departments, personnel, and distribution of resources to better carry out the marketing and sales goals for the [Petitioner's] brand.

The beneficiary ... exercises wide latitude in discretionary decision making

... [The Beneficiary] has wide latitude in discretionary decisions including but not limited to setting corporate manufacturing, distributions, sales and marketing policies; .

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brand imaging; developing new products; redesigning or discontinuing products based on market needs; altering trade dress to fit brand image; and negotiating, coordinating and entering into contracts on behalf of the corporation.

The beneficiary ... receives only general supervision or direction from higher level executives, the board of directors, or stockholders

... [The Beneficiary] has independent discretion to develop the necessary tools and policies to design, manufacture, distribute, market and sell the [Petitioner's] brand of products. . . . [The Beneficiary] has complete autonomy in sales and marketing decisions, and reports to the executive board of the US subsidiary on fiscal and fiduciary matters. An Allocation of Duties chart for [the Beneficiary] that breaks down as a percentage [of time] her daily executive duties is enclosed.

T~e above paragraphs include several iterations of essentially the same statement, reworded in various ways, indicating that the Beneficiary "develops plans, policies and tools," "develops innovative policies and tools," and has "discretion to develop ... tools and policies." The above statement provides little information about specifically identifiable activities that the Beneficiary performs in the course of setting company policy.

It is not sufficient to phrase the Beneficiary's responsibilities in a way that conforms to the elements of the statutory definition of executive capacity. 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. USCJS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, Inc. v. INS, 940 F.2d 1533.

The Allocation of Duties chart mentioned above includes the following information:

Oversee the Development and Manufacturing of [the parent company's] 50% Products

Direct and supervise product development and manufacturing and quality 20% control Final Approval on major redesigns and merchandising shifts 10% Oversee branding and brand management 15% Keeping department heads up to date on the direction of the organization, 5% selecting department heads

Oversee the Finance and Administration of the U.S. Subsidiary 50% Final budget approval 10% Setting responsible budget goals in keeping with the needs of product 15% development and manufacturing 1

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Matter of E-C-USA Inc ,

Negotiating, approvmg and signatory on all maJor contracts 10% (subcontracts) on behalf of the corporation Determining the direction of the company based on financial and legal 10% risk information Keeping department heads up to date on the direction of the organization, 5% selecting department heads

The chart submitted in response to the RFE referred to "department heads" both abroad and in "the U.S. subsidiary," but the U.S. subsidiary did not claim to employ any department heads at the time it filed the petition. The Petitioner delegates nearly all U.S. operational functions to contractors.

The Director denied the petition, stating that the Petitioner had not established that the Beneficiary's duties are primarily those of an executive. The Director found that negotiating with distributors is not an executive task, and that the Beneficiary does not appear to have executive-level oversight over product development, manufacturing, or accounting, because the Petitioner delegates those functions to contracted third parties.

With respect to "reporting to department heads" and "determining the direction of the company," the Director found those elements to be too vague and lacking in detail to allow a finding that those are executive activities. The Director also made findings regarding the Petitioner's staffing, to be addressed further below.

On appeal, the Petitioner asserts that it "provided a detailed description of the beneficiary's executive duties and how she directs and oversees the U.S. organization." The Petitioner points to passages in statements submitted with the initial petition and in response to the RFE. The cited passages, however, are mostly discussions oJ eight claimed departments, most of which are actually contractors or subdivisions of the Petitioner's foreign affiliate.

Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Reciting the beneficiary's vague job responsibilities or broadlycast 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. !d.

The record does not establish that subordinates, contractors, or the foreign entity present the Beneficiary with so many proposals for new products, marketing, and other things that her review and approval present significant demands on her time. Likewise, the Petitioner has repeatedly referred to policy development, without showing that the Beneficiary needs to spend significant amounts of time developing policies. The job descriptions in the record emphasize the Beneficiary's goals and responsibilities, rather than the specific actions that the Be11eficiary takes to realize those goals and fulfill those responsibilities. Stating that she oversees the work of others is not sufficient.


The Petitioner states:

The beneficiary . . . is involved with signing contracts and other key executive documents that legally bind the corporation. An individual who is not an executive of the corporation would not be authorized to take such action ....

It is obvious, that entering into any contract that legally binds the corporation is an executive duty. It is not only a requirement for this business but is the law as it relates to California corporations. See Section 313 of the California Corporations Code.

The cited section of law reads, in full: \

Subject to the provisions of subdivision (a) of Section 208, any note, mortgage, evidence of indebtedness, contract, share certificate, initial transaction statement or written statement, conveyance, or other instrument in writing, and any assignment or endorsement thereof, executed or entered into between any corporation and any other person, when signed by the chairperson of the board, the president or any vice president and the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation, is not invalidated as to the corporation by any lack of authority of the signing officers in the absence of actual knowledge on the part of the other person that the signing officers had no authority to execute the same.

Cal. Corp. Code § 313. The Petitioner does not explain how the above language means that only an executive is authorized to sign contracts on behalf of a given corporation. The cited statute also does not indicate that only someone with primarily executive duties can sign a contra9t

The record shows that the Beneficiary attends trade shows alongside contracted sales workers and nail artists. The Petitioner has not explained what the Beneficiary does at these shows. Sales, promotion, and nail art are not elements of an executive capacity. In the denial notice, the Director noted that the Beneficiary's participation at trade shows "indicates that the beneficiary performs many duties herself." The Petitioner, on appeal, does not address this finding.

The Petitioner has established that the Beneficiary is the highest-ranking figure in the U.S. company, . with responsibilities consistent with executive authority, but the Petitioner has not shown that the Beneficiary primarily performs executive duties.

2. Staffing

Beyond the required description of the job duties, USCIS reviews the totality of the record to examine the claimed managerial or executive capacity of a beneficiary, including the company's organizational structure, the duties of a beneficiary's subordinate employees, the presence of other

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Matter of E-C- USA Inc

employees to relieve a beneficiary from perfonning 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 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. 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 a beneficiary to direct and a beneficiary must primarily focus on the broad goals and policies of the organization rather than the day-to-day 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 an owner or sole managerial employee. A 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." See section 101 (a)( 44 )(B) of the Act.

The fact that the Beneficiary directs a business does not necessarily establish eligibility tor classification as an intracompany transferee in an executive capacity within the meaning of section 101(a)(44)(B) of the Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" of an executive nature. While the Beneficiary may exercise discretion over the Petitioner's operations and possesses the requisite level of authority with respect to discretionary decision-making, the position description alone is insufficient to establish that her actual duties, as ofthe date of filing, would be primarily executive in nature.

We also consider the proposed position in light of the nature of the Petitioner's business, its organizational structure, and the availability of staff to carry out daily operational tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of employees a Petitioner has, USCIS "may properly consider an organization's small size as one factor in assessing whether its operations are substantial enough to support a manager." 1 The same reasoning applies to executive positions, which require a level of organizational complexity beyond what would warrant a managerial position. Furthermore, it is appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the absence of employees who would perform the non-managerial or non-executive operations of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).

Initially, the Petitioner stated: "The staffing levels of our U.S. otlice currently meet the reasonable needs of our organization in its current stage of development[. W]e currently have two employees

1 Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval

Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991 ); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D. D.C. 2003).

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(b)(6)


on payroll and also have numerous sub~contractors an.d independent contractors working for our U.S. office." The Petitioner named those two U.S. employees as the Beneficiary and identified as the Beneficiary's full-time executive assistant.

The Petitioner initially listed eight departments under the Beneficiary' s authority:

• Warehouse, Product Packaging, and Shipping • Sales and Marketing • Research and Development, Manufacturing • Logistics, Customs • Accounting • Product Marketing, Education • Distributors • Legal

The Petitioner indicated that contractors staff each of the above departments, except for the first two departments, which are part of an affiliate based in Hungary (apart from two to three contracted warehouse workers in the United States). The contractors in the third and fourth departments are independent companies with their own separate management structure; the Petitioner stated that the "manufacturing department heads report to" the Beneficiary, but the Petitioner did not establish that the Beneficiary has executive authority over those companies. The other contractors are individuals rather than firms or companies.

In the RFE, the Director asked for more information about the Petitioner' s staffing. In response, the Petitioner stated that it "has three employees on payroll," specifically the Beneficiary; now listed as the warehouse manager; and the Beneficiary's spouse, with the title of logistics and trade show coordinator. The Petitioner stated that the executive assistant position was vacant, but did not say who performed the duties of that position in the meantime. The Petitioner observes that a small company can have a qualifying executive. That company, however, must still show that the executive primarily performs qualifying executive tasks. Not every company has the organizational complexity to warrant one or more executive positions.

The Petitioner submitted copies of 26 Product Ambassador Agreements and 11 Educator Agreements, with some overlap among people working in both capacities. Under the agreements, the duties of a contracted product ambassador are "to promote and recommend the Company and its products" and "secure attendance from members of the public at Promotional Events," whereas an educator "agrees to promote and recommend the Company and its products to the public." Some of these individuals have worked alongside the Beneficiary at trade shows documented in the record.

IRS Form 1099-MISC, Miscellaneous Income, show that the Petitioner paid two of its contractors in 2014 and nine in 2015; all but one received amounts below $2000. The Petitioner stated: "The 1099-MISC are issued to individuals "who are providing direct services, for example at trade shows and at

·other marketing events," but those individuals did not receive the forms for events that they organized

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on their own. The "Compensation" clauses of the agreements indicate that a contractor is "entitled to all of the entry fees of any Promotional Events initiated and operated by" that contractor.

The Petitioner stated that the Beneficiary oversees the company's finances, but the Petitioner has not shown who performs the administrative activities relating to those finances, such as drafting the budget. The Petitioner's first organizational chart shows the name of an accountant followed by "(1 099)," indicating that the Petitioner reported the accountant's compensation on IRS Fonn 1099-MISC. The accountant's name, however, is not on any ofthe 2014 or 2015 IRS Forms 1099-MISC that the Petitioner has submitted. We also note that the accountant named on the organizational chart is not the accountant who prepared the Petitioner's 2014 federal income tax return in 2015.

Invoices show that the Petitioner has done business with a manufacturer and a shipping company, both of which the Petitioner has listed among its departments. These documents show where the Petitioner obtains its products and how it ships them, but the documents do not show executive oversight or any degree of control beyond the usual right of a customer to place orders and hire services.

The Petitioner asserted that its foreign affiliate's sales and marketing department provides services to the Petitioner. The Petitioner submits copies of marketing materials, such as advertisements, catalogs, and printouts from the Petitioner's website. This evidence demonstrates the existence of promotional materials but does not show who prepared them or under whose authority. The foreign parent company ultimately owns the brand name and it, like the Petitioner, has an interest in promoting the sales of those products. The existence of English-language advertisements does not compel the conclusion that the Beneficiary has executive authority over the marketing depmiment.

Furthermore, the Petitioner has not directly documented the staffing of the foreign departments that, it asserts, handle many operational functions on the Petitioner's behalf. In a similar vein, the Petitioner states that it relies on corporate counsel for various matters, but the Petitioner submits no evidence in this respect and its organizational charts do not identify the attorney or attorneys. A petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof. See Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376.

In the denial notice, the Director acknowledged the Petitioner's use of contractors, but found that "these employees are hired for specific duties and are supervised by their own company management." The Director concluded that "the beneficiary would necessarily be involved in sales, customer service, and negotiations." On appeal, the Petitioner states that it had previously "described the beneficiary's executive duties overseeing each and every department," and asserts that the Director unfairly disregarded the practical reasons why the Petitioner relies on contractors. The Petitioner also states that the company "does not handle one-on-one sales" and therefore there is no need for the Beneficiary to participate in sales or customer service.

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(b)(6)


The issue is not that the Petitioner delegates some tasks to contractors, but rather the degree of the Beneficiary's authority over the contractors. The Petitioner states that it has "identified the key department heads," but the Petitioner has not shown the level or extent to which the Beneficiary exercises executive control over those individuals. The Petitioner contends that the Beneficiary "is not involved in sales and customer service," but the Petitioner does not explain what other function the Beneficiary performs at the many trade sh<;>ws documented in the record.

The Petitioner states that the Director "mistakenly concluded that the petitioner only had three employees in-house, while completely disregarding all the departments that assist in the petitioner' s business." The figure of "three employees in-house" is incorrect only if the Petitioner has a different ' number of in-house ·employees, which, by definition, are not contractors or employees of separate legal entities (such as a foreign affiliate).

The Petitioner maintains that the contractors and other companies are all "departments" or "components" of the petitioning company, but cites no authority to explain why we should regard them as such. Again, the Petitioner's use of contractors is not inherently disqualifying, but neither does it result in a presumption that, because the Beneficiary is the highest authority at the U.S. company, she is therefore a de facto executive of the contractors. By definition, an executive directs the management of the organization or a major component or function of the organization; establishes the goals and policies of the organization, component, or function; and exercises wide latitude in discretionary decision-making. See section 101(a)(44)(B) of the Act. The Petitioner has not shown that the Beneficiary has that level of control or authority over the contractors. The Petitioner does not establish the goals or policies of the contractor by providing the specifications for a product order, and that order is not a component or function of the contractor. An independent company that takes orders from the Petitioner (and from other clients) is not, as the Petitioner contends on appeal, a "department" of the petitioning company that happens to be "staffed by contractors."

Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary will be employed in an executive capacity in the United States.

B. Foreign Employment in an Executive Capacity

If the Beneficiary is already in the, United States working for the foreign employer or its subsidiary or affiliate, then the regulation at 8 C.F.R. § 204.5G)(3)(i)(B) requires the Petitioner to submit a statement from an authorized official of the petitioning United States employer which demonstrates that, in the three years preceding entry as a nonimmigrant, the Beneficiary was employed by the entity abroad for at least one year in a managerial or executive capacity.

1. Duties

The Petitioner identified the Beneficiary's foreign employer as and the Petitioner are affiliates, both owned by

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That company In its initial letter, the Petitioner


stated that the Beneficiary "was responsible for formulating and implementing, in foreign markets, the brand expansion and/or branding of the company's proprietary nail art and other personal beauty products .... She was responsible for devising and overseeing the marketing, distribution, sales and promotion ofthe [foreign parent company's] products."

In the RFE, the Director stated that the Petitioner had not provided enough information about the Beneficiary's former duties abroad. The Director requested more details, and an organizational chart that showed the Beneficiary's foreign position instead of her U.S. title.

In response, the Petitioner submitted a letter on its own letterhead, signed by an official identified as the Petitioner's chief financial officer and member of its board of directors but who claimed to write on behalf of the foreign company. (An organizational chart for the foreign company showed a different name with the title of chief financial officer.) The official stated that' the Beneficiary performed the following duties at the foreign company:

• Market analysis, market information gathering, development of market opportunities

• Branding and brand management • Corporate culture and image development • Business budget plan, development and analysis • Brand promotion (trade dress, corporate responsibility, advertising, advertisement

and other marketing and promotional developments[)] • Development and effective use of advertising and promotional budgets • Market profiling and testing and buildup of customer base • Development of programs to reach and contact new customers • Responsible for business negotiations with international distributors, international

companies, vendors and contractors • Develop and nurture key business relationships with international customers • Coordinate international contracts

The official stated that the Beneficiary's foreign position met all four requirements of an executive capacity. Except for some details, such as the use of past tense verbs, the description of these duties are mostly similar to the four-point description discussed above with respect to the U.S. position, focusing on the Beneficiary's development of"innovative tools and policies."

In denying the petition, the Director stated:

The duties are vague and do not clearly describe the beneficiary's actual duties. For example, the petitioner has not described the tasks associated with her duty of "corporate culture and image development." In addition, it appears that the beneficiary performs many of the duties to market and advertise products internationally rather than overseeing and directing others.

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On appeal, the Petitioner states that it had described the Beneficiary's duties in detail. As noted above, the foreign job description largely matches the U.S. job description, with the same deficiencies that we have discussed in that earlier context. Rather than address the deficiencies that the Director identified, the Petitioner repeats the job description on appeal, asserting, for instance, that the Beneficiary set prices, "identif[ied] products that need to be reformulated or discontinued," and "determin[ ed] whether the company is effectively implementing policies and sales goals." The Petitioner provides no new supporting evidence and does not show how much time the Beneficiary devoted to individual identifiable tasks. The Petitioner states that the Beneficiary reviewed market research, but the record does not contain examples of that research, identify who performed it, or document decisions that the Beneficiary made based on that research. The Petitioner has devoted considerably more attention and evidence to the Beneficiary's U.S. position than to her former position overseas, both initially and on appeal, and has not overcome the Director's findings .

• 2. Staffing

The petitioner's initial submission contained minimal information about the foreign company's staffing. An organizational chart showed the Beneficiary ranked equally with the chief executive officer (CEO), with oversight over the sales manager, warehouse manager, and import/online marketing manager.

The Director, in the RFE, requested an organizational chart that reflected the Beneficiary's employment abroad, and job descriptions for the Beneficiary's former subordinates. In response, the Petitioner submitted a new organizational chart for the foreign affiliate's marketing, sales, and research and development department. A legend on the chart states that the department had 59 employees, but the chart shows only 48, including the Beneficiary:

CEO

I Marketing/Sales and R&D Dept.

I International Marketing and Sales Mgr. (the Beneficiary)

Sales/Mktg. Mgr.

I Business Mgr.

Wholesale 3 employees

Warehouse Mgr. Quality Control Mgr. V.P., Foreign Trade

I 7 employees

Export 2 employees

I & Import/Online Service/Maintenance I

4 employees Import I 4 employees

Shipping I 15 employees Online Marketing

5 employees Mobile Sales 2 employees

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The Director's denial notice did not contain a discussion of the foreign company's staffing, but we note here that the Petitioner did not submit the requested information about the Beneficiary's former subordinates. The Petitioner submitted no job descriptions, and identified most of the subordinates only as "employees" with no further information, so that we cannot tell· what those subordinate employees were doing or confirm that the individuals identified as managers or a vice president did in fact qualify as managers or executives. The Petitioner did not provide evidence, such as payroll records or comparable internal documents, to show that the foreign company actually employed the people listed on the organizational chart; that the foreign company has a warehouse and thus the need for a warehouse manager; and so on.

For the reasons discussed above, we find that the Petitioner has not submitted sufficient evidence to show that the Beneficiary's former employment abroad was in a primarily executive capacity.

III. CONCLUSION

The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an independent and alternative basis for the decision. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the Act, 8 U.s:c. § 1361. Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter of E-C-USA Inc, ID# 252409 (AAO Jan. 11, 2017)

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u.s. citizenship non-precedent decision of the and ... · (c) certain multinational executives and...

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