U.S. Citizenship and Immigration Services

MATTER OF V-I- INC.

APPEAL OF TEXAS SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 5, 2018

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

The Petitioner, a paper products export and import 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 )(I )(C). 8 U.S.C. § 1153(b)(l )(C). This classification allows a U.S. employer to pem1anently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity.

The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not establish, as required, that the Beneficiary would be employed in the United States in an executive capacity.

On appeal, the Petitioner asserts that the Director mischaracterized the proffered position despite the totality of the evidence demonstrating that the position is an executive position. 1 The Petitioner submits additional evidence and claims that it has established that the Beneficiary will primarily perform in an executive capacity. The Petitioner also refers to the previous five approved petitions it filed on behalf of the Beneficiary ~nd contends that U.S. Citizenship and Immigration Services (USCIS) has already determined that the Beneficiary is currently satisfying the four prongs of the definition of an executive.

Upon de novo review we will dismiss the appeal.

I. LEGAL FRAMEWORK

An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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.

1 The Petitioner does not claim that the Beneficiary will perform duties primarily in a managerial capacity. Thus, we will

restnct our analysis to the Beneficiary's claimed executive capacity.

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The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized otlicial 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(j )(3 ).

II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY

The Director determined that the Petitioner's description of the Beneficiary's duties shows that he is primarily performing non-qualifying duties associated with marketing, sales, and sourcing of paper products.

The Act defines the term "executive capacity"' as an assignment within an organization in which the employee primarily directs the management of the organization or a major component or function thereof; establishes the goals and policies of the organization, component, or function: exercises wide latitude in discretionary decision-making; and receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization. Section 101(a)(44)(B) ofthe Act: 8 U.S.C. § 110l(a)(44)(B).

We will address both the Petitioner's description of the Beneficiary"s intended duties as well as the Petitioner's staffing to determine whether the Petitioner has established this eligibility requirement. We note that when reviewing staffing levels as a factor in determining whether an individual is acting in a managerial or executive capacity. we must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. ,)'ee section 101(a)(44)(C) of the Act.

A. Duties

When examining the executive or managerial capacity of a beneficiary. we review a petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The definition of executive capacity has 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 executive duties, as opposed to ordinary operational activities alongside the petitioner's other employees. See. e.g., Family Inc. v. USCIS. 469 F.3d 1313, 1316 (9th Cir. 2006): Champion World, 940 F.2d at 1533.

The Petitioner initially described the Beneficiary's proposed duties in the United States without allocating his time amongst the various duties described. In response to the Director's request for evidence (RFE), the Petitioner provided a similar description indicating the Beneficiary would perform the following duties with the time allocated as follows (paraphrased):

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Matter of V-1- Inc.

• Manage the sourcing and procurement of pulp, paper, paper products, and other products from North America for the parent companies, their branch, subsidiary, and associate offices. This involves being in contact with the senior executives of [the Petitioner], and Managers, Executives of the foreign parent companies to know and understand their products and pricing requirements. Then to source and procure from North American companies which involves reaching out to Export Sales Managers/Executives of the manufacturing companies, paper mills, trading and stocking companies and sourcing and procuring from them - 15 percent;

• Study, research, and analyze the US and international paper, paperboard. and paper products market information, pricing information by interacting with Executives. Managers of [the Petitioner's] customers, its parent companies and by studying industry intelligence reports and websites. This helps the Beneficiary source paper for exports at the right price and helps him provide correct US market report and pricing information to the management and Executives of the parent companies. This enables them to negotiate and purchase etTectively worldwide and sell to [the Petitioner] - 10 percent;

• Update the parent companies on a regular basis, with offers of various products from all available sources and making those otTers viable tor the parent companies to buy - 8 percent;

• Make financial decisions on behalf of the company, discussing company accounts with bank managers and discussing the company tinancials with its CPA - 2 percent;

• Develop and strengthen business relationship with new and old customers/clients of [the Petitioner] by being in regular contact with the Executives and Managers of these companies via emaiL phone communications. and regular meetings. This involves sharing information and addressing concerns and questions - I 0 percent;

• Market and sell imported paper, boards, and paper products to various paper merchants in the U.S. Research and identify the potential/prospective new customers (companies that can buy from [the Petitioner] and then reach out to their Purchasing Manager, Executive Vice Presidents, V.P. of Purchasing. President. Market [the Petitioner] and relevant products to be sold to the potential/prospective customers and work towards making them [the Petitioner's] customers. Decide the selling and pricing strategy for [the Petitioner] and accordingly communicate to the Executives and Managers of [its] customers on a regular basis. Respond to any questions concerns from the Executives, Managers of [the Petitioner's] customers via email/phone discussions - 30 percent;

• Enhance [the Petitioner's] presence and its products, services by attending industry conferences, seminars. expos, and events - 2 percent;

• Research and identify the potential/prospective suppliers and clients (manufacturing companies, paper mills. trading and stocking companies) for export business. Establish communication with these companies and their executives. Project [the Petitioner] and its parent companies and work towards developing business relationships with them - 8 percent;

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Matter of V-1- Inc.

• Be in regular contact with the Executive and Managers of the third party logistics companies to ensure that [the Petitioner] has the best logistics services and lowest costs. Intervene and discuss with the Executives/Managers of these companies wherever [the Petitioner] co-worker has any major issue- 5 percent; and

• Monitor, oversee, and guide the work of the customer service/administrative assistant. Address any concerns, questions the assistant has, occasionally explain the work to be done as per the requirements of customers and company management -10 percent.

The Petitioner submitted numerous email transmissions between the Beneficiary and other companies to demonstrate the Beneficiary's involvement in: discussions with the parent companies and North American suppliers: answering questions of potential clients/customers; corresponding with logistics companies; and setting up meetings and attending conferences.

The Director correctly concluded that the majority of the Beneficiary's duties as described demonstrate that he directly markets and sells products impor1ed from the parent company's organization and procures products for the foreign entity's global organization to sell.

On appeal, the Petitioner submits the same job description with the same allocation of time as provided in response to the Director's RFE. The Petitioner asserts that the Beneficiary is performing duties associated with the development of the North American market for the international petitioning organization. [n a later submitted supplement to the appeal, the Petitioner submits a different version of the Beneficiary' s duties which divides the Beneficiary's duties between importing and exporting duties and re-allocates the Beneficiary' s time amongst the various duties. The Petitioner contends that this version of the Beneficiary' s responsibilities includes "greater and more concrete detail.'' The Petitioner also attaches an opinion prepared by Ph.D., which is based on the Petitioner' s revised description ofthe Beneficiary's duties.

Each of the position descriptions in the record shows that the Beneficiary is the individual analyzing market and pricing information and providing the resulting market reports to the Petitioner's related organizations. Additionally, the Beneficiary is the individual who interacts with the Petitioner's customers, otiers them pricing and terms, and identifies potential customers for the foreign entity's paper products. Further, the Beneficiary sources and procures products from North American companies to be exported to its related foreign organizations. He negotiates with supplier companies and identifies potential suppliers and clients tor the export business.

The position described requires the Beneficiary to perform market research, to market and sell the foreign entity's products, and to identify new clients and maintain existing clients for the foreign entity's products. The description also shows that the Beneficiary performs the necessary research and market analysis to find products to export to the foreign entity. Marketing and selling products, as well as procuring product to be sold, are operational duties. The Beneficiary's purpose is not directing the marketing, selling, and procurement of product, rather he is the individual perfonning the routine day-to-day tasks necessary to perform these functions. The Petitioner's descriptions of the

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Matter of V-1- Inc.

Beneficiary's duties and the allocations of his time to those duties demonstrate that the Beneficiary will primarily perform operational tasks, not executive duties as required.

In an opinion letter, repeats the revised position description and concludes that the Beneficiary will be responsible for "managing the overall operations of the company" and for "managing the entire marketing and selling operations of [the Petitioner] and related companies."

however, does not elaborate on how the Beneficiary will manage these functions. Rather, appears to rely on the Beneficiary's title of president in opining that the Beneficiary will

be "functioning in an Executive position as President for [the Petitioner]:' However, the textbook or common understanding of business terms will not supersede the statutory definitions; the applicable definition of executive capacity is contained in the statute at sections 101(a)(44)(B) of the Act. Although also repeats portions of the position description as falling within the parameters of each element of the definition of executive capacity, he offers no analysis of the duties or explanation on how he determined that the duties involved managing functions instead of performing them.

We may, in our discretion, use as advisory opmwns statements fi·Otn universitH.:s, professional organizations, or other sources submitted in evidence as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, we are not required to accept or may give less weight to that evidence. Matter l~{ Caron lnt 'l, 19 T&N Dec. 791 (Comm 'r 1988). conclusion lacks a substantive foundation and analysis of the Beneficiary's duties; therefore, the opinion offered is of limited value.

The fact that the Beneficiary will manage or direct a business does not necessarily establish eligibility for classification as a multinational manager or executive within the meaning of section 10l(a)(44) of the Act. By statute, eligibility tor this classification requires that the duties of a position be "primarily" executive or managerial in nature. Sections 10 I (A)( 44)(A) and (B) of the Act. While the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of authority with respect to discretionary decision-making, the position descriptions alone are insufficient to establish that his actual duties would be primarily executive in nature.

B. Staffing

Beyond the required description of the job duties, we review the totality of the record when examining the claimed executive capacity of a beneficiary, including the company's organizational structure, the duties of a beneficiary's subordinate employees, the presence of other employees to relieve a beneficiary 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 Petitioner notes that it employs only the Beneficiary and the customer service/administrative assistant. The Petitioner provides a description of the customer service/administrative assistant's duties, which include clerical duties relating to receiving purchase orders, coordinating with the

Matter of V-1- Inc.

logistic companies, ensuring deliveries, invoicing customers, and updating inventory reports for the Beneficiary. The Petitioner points out that it also contracts with two companies that provide warehousing, transloading, customs, freight, and logistic services, as well as three companies that provide trucking services.2 In a letter submitted with the supplemental brief, the Petitioner discusses the support the Beneficiary receives in his day-to-day duties from other staff within the Petitioner's global organization. The Petitioner identities a busines~ development manager at one of the related foreign organizations (in India) who coordinates with the paper mills in Asia. This individual provides the Beneficiary with the milrs pricing and delivery terms and also works with the customer service/administrative assistant. The Petitioner identifies a second individual, an assistant operations manager (in Singapore), who arranges shipping and freight forwarding services and coordinates with the U.S. logistics companies for deliveries in the U.S. In the Petitioner's revised description of the Beneficiary's duties, the Petitioner notes that its customer's technical issues are resolved with the support of employees in Singapore. The Petitioner does not further expand on the Beneficiary's interactions with employees in the foreign organization.

The duties of the Beneficiary's U.S. subordinate and the duties of the two foreign employees relate to clerical tasks and the logistics involved in shipping paper products to and from the United States. The duties described do not demonstrate that these individuals relieve the Beneficiary from performing the Petitioner's marketing and sales tasks, maintaining and developing customer relationships, and procuring products from third-party suppliers. Similarly the subcontracting logistics and transportation companies are not involved in the marketing, sales, and procurement of paper products. Moreover, it has not been shown that the Beneficiary would have authority to direct or supervise the employees of the third-party contractors.3 The record does not include sufficient evidence to establish that the employees referenced and the third-party contractors relieve the Beneficiary from performing the non-qualifying duties involved in marketing, sales, and procurement of paper products.

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 10l(a)(44)(B) of the Act. 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 they 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 the owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary decision making'' and

2 The Petitioner's organizational chart also lists 17 customers under the Beneficiary's direction. Although the Beneficiary may interact with customers to sell or procure products, it is unreasonable to believe that he will direct, manage, or supervise these customers or that they will report to him for his direction. ' The Petitioner also appears to allocate only live percent of the Beneficiary's time to overseeing and monitoring the logistics and transportation companies.

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Matter of V-1- Inc.

receive only "general supervision or direction from higher level executives, the board of directors, or stockholders of the organization."' !d.

Here, the Beneficiary does not have a subordinate level of managerial employees to direct and he does not focus on the broad goals and policies of the organization, but rather the day-to-day marketing, sales, and procurement operations of the organization. In the Petitioner's descriptions of the Beneficiary's duties, the Petitioner repeatedly refers to the Beneficiary's interactions with executives and managers of its customers, suppliers, and the related companies within the organization. However, the Petitioner does not explain how interacting with other individuals with executive or managerial titles results in the Beneficiary's "executive capacity.'' The Petitioner does not support its conclusion that the Beneficiary's responsibility "for managing and directing two major components of the Petitioner" automatically requires a finding that the Beneficiary is an executive as that term is defined in the Act. The record, including the Petitioner's descriptions of duties and the numerous emails submitted showing the Beneficiary's marketing. sales, and procurement discussions, demonstrates the Beneficiary's routine performance of primarily non-qualifying duties.

We have considered the reasonable needs of the organization in light of the overall purpose and stage of development of the organization, including related entities within the qualifying organization. To establish that the reasonable needs of the organization justify a beneficiary's job duties, a petitioner must specifically articulate why those needs are reasonable in light of its overall purpose and stage of development. The Petitioner is a seven-year-old company that employs the Beneficiary and a customer service/administrative assistant. The Petitioner also uses the services of third-party logistics and transportation services as well as two foreign employees who perform administrative and logistics coordination: however, the record does not include credible evidence establishing that the Petitioner could operate with the staff in place without the Beneficiary performing primarily non-qualifying duties. The Petitioner has not explained how the reasonable needs of the petitioning enterprise justify the Beneficiary's performance of non-executive duties. A petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof. See Matter (~l Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Furthermore, the reasonable needs of the Petitioner will not supersede the requirement that the Beneficiary must be "primarily'' employed in a managerial or executive capacity, not spending the majority of his or her time on non-qualifying duties. See sections I 01 (a)( 44)(A) and (B) of the Act.

In this matter, the record includes voluminous documentation showing the Beneficiary· s involvement in marketing and selling the global organization's products and procuring products for the global organization to re-sell. The Petitioner does not identify any individual or company that performs the duties required to obtain, market, and sell the global organization's products. The Petitioner does not discuss who performs the marketing and sales duties necessary to develop the North American market other than the Beneficiary. Although the Beneficiary does not perfom1 the administrative, clerical, and logistics tasks of moving the product from one place to another. the current record demonstrates that the Beneficiary performs the marketing and selling duties necessary to support the global organization's North American business activity. The record establishes that it

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is more likely than not that the Beneficiary performs the Petitioner's selling, marketing, and procurement operations. The Petitioner has not established that the proposed position is an executive position as defined by the Act; thus, the Petitioner has not overcome the Director's determination on this issue.

Ill. PRIOR APPROVALS

The Petitioner emphasizes that the Beneficiary has been approved for L-1 A status in each of the five nonimmigrant petitions filed on his behalf. The Petitioner acknowledges that there are differences between eligibility for approval of an L-1A petition and the I-140C petition, but points out that the requirements for the two visa classifications are substantially similar. The Petitioner asserts that the similarity of requirements should render similar results. However, if the previous nonimmigrant petitions were approved based on the same evidence contained in the current immigrant petition record, the approvals would constitute error on the part of the Director. We are not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. Matter of Church Scientolozy lnt L 19 I&N Dec. 593, 597 (Comm 'r 1988). It would be unreasonable for USC IS or any agency to treat acknowledged errors as binding precedent. Sussex EnJ(g. Ltd v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. I 008 (1988).

IV. CONCLUSION

The appeal will be dismissed because the Petitioner has not established that the Beneficiary will be employed in a managerial or executive capacity for the Petitioner.

ORDER: The appeal is dismissed.

Cite as Matter ofV-1- Inc., ID# 878902 (AAO Feb. 5, 2018)

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