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I I U.S. Citizenship and Immigration Services MATTER OF F-(USA) INC. APPEAL OF TEXAS SERVICE CENTER DECISION Non-Precedent Decision of the Administrative Appeals Office DATE: OCT. 19,2016 PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a freight forwarding 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)(1)(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. I The Director, Texas Service Center, denied the petition, concluding that the evidence of record did not establish that 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 by erroneously finding discrepancies in the Petitioner's information, and by not considering information relating to the Beneficiary's position with the foreign employer. Upon de novo review, we will dismiss the appeal. I. LEGAL FRAMEWORK 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 the alien 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.

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I I

U.S. Citizenship and Immigration Services

MATTER OF F-(USA) INC.

APPEAL OF TEXAS SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 19,2016

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

The Petitioner, a freight forwarding 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)(1)(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.

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The Director, Texas Service Center, denied the petition, concluding that the evidence of record did not establish that 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 by erroneously finding discrepancies in the Petitioner's information, and by not considering information relating to the Beneficiary's position with the foreign employer.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

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 the alien 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.

Matter of F-(USA) Inc.

A United States employer may file Form 1-140, 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) Requireq 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 affiliate 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. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY

The Director denied the petition based on a finding that the Petitioner did not establish that the Beneficiary has been employed abroad in a managerial or executive capacity. The Petitioner does not claim that the Beneficiary has been employed in an executive capacity. Therefore, we restrict our analysis to whether the Beneficiary has been employed in a managerial capacity.

Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as "an assignment within an organization in which the employee primarily":

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(b)(6)

Matter of F-(USA)Inc.

(i) manages the organization, or a department, subdivision, function, or ~

component of the organization;

(ii) 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;

(iii) 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. I

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. 1

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. § 204.5(j)(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.

A. Evidence of Record

The Petitioner filed Form I-140 on November 16, 2012. The Petitioner stated that the Beneficiary worked as director and chief operating officer (COO) of from 2000 to 2007. After briefly working for a different employer, the Beneficiary began working for the Petitioner in the United States in 2008.

The Petitioner submitted an organizational chart of the Australian parent company, naming eight employees (the Beneficiary's name appeared twice). The information on the chart dates from 2007, which was the last year the Beneficiary worked for the company abroad:

1 See section 10l(a)(44)(C) ofthe Act.

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(b)(6)

Matter of F-(USA) Inc.

Director

The Beneficiary

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Managing Director The Beneficiary , I

General Manager -----Finance and Admin. Staff

Operations Manager New South WalesNictoria/Westem Australia

I Operations Staff

Operations Manager Queensland/Northern Territory;

.I Operations Staff

Other materials refer to as the Australian company's chief executive officer (CEO). The Petitioner submitted a description of the Beneficiary's position as of 2005, along with job descriptions for each subordinate position on the chart, and the foreign entity's payroll records from 2006. '

The Director issued a request for evidence (RFE), asking the Petitioner to submit "[a] detailed description of the daily duties that the beneficiary performed with and "[a] current organizational chart for

In response, described the organization of the foreign parent company as of 2007. What he described largely matched the 2007 organizational chart, except he referred to. as the "Finance and Administration Manager," and the operations staff and as "freight forwarding operations specialists." also stated that, during the time that the Beneficiary was its managing director, the Australian company "employ[ ed] a staff of 20 people with offices in Australia, Japan, Panama and Germany." specified that the Beneficiary "managed a team of subordinate managers."

The Director denied the petition, concluding that the Petitioner had not established that the Beneficiary would serve in a managerial or executive capacity. In denying the petition, the Director found that the Petitioner had submitted conflicting descriptions of the foreign company, claiming "a staff of 20 people" while its organizational chart showed only eight employees. The Director also questioned the Petitioner's claim that the Australian company was staffed mostly by managers, while only "two or three employees primarily performed the tasks necessary to ... provide services." The .Director concluded that the Petitioner had not established that the Beneficiary's duties abroad were primarily managerial.

On appeal, the Petitioner states that the Director did not consider the Beneficiary's job description, and that the denial decision rests on two points that the record does not support. ·

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Matter of F-(USA) Inc.

1. Analysis

Upon review of the petition and the evidence of record, including materials submitted in support of the appeal, we conclude that the Petitioner has not established that the Beneficiary was employed abroad in a managerial capacity.

The Director based the denial decision largely on two observations regarding the foreign company's staffing. Regarding the first, we agree with the Petitioner's statement that the Petitioner did not make "inconsistent statements about the size of the globally" and its organization within Australia. The organizational chart listed eight employees in Australia. The "staff of 20 people" refers to employees in four named countries. The Petitioner did not claim that the Beneficiary had direct authority over employees in Japan, Panama, or Germany. We find nothing inconsistent in these two statements regarding the company's staffing.

The Director also found inconsistencies in the descriptions of the company's staffing and organizational structure within Australia, but apart from some variations in job titles, we find no substantive discrepancies among the various organizational charts and narrative descriptions of the company's structure.

The Director's remaining basis for denial requires more discussion. The Australian company had eight employees in 2007, and at various times, the Petitioner has referred to six of them as managers or executives:

• CEO/Director • The Beneficiary, COO/Managing Director • General Manager • Finance and Administration Manager • Operations Manager • Op~rations Manager

The Petitioner, on appeal, states that the Director overlooked the Beneficiary's own job description. This is a valid criticism, and we will discuss that job description below. The Petitioner does not, however, address another element of the denial, which is that the Petitioner has not fully accounted for the company's non-qualifying operational activities.

When examining the managerial capacity of a given beneficiary, we will look first to the petitioner's description of the job duties.2 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 capacity.3

2 See 8 C.F.R. § 204.5(j)(5). 3 !d.

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(b)(6)

Matter of F-(USA) Inc.

Specifics are clearly an important indication of whether a beneficiary's duties are primarily managerial in nature, otherwise meeting the definition would simply be a matter of reiterating the regulations.4 The actual duties themselves reveal the true nature of the employment.5 Therefore, reciting a beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations. require a detailed description of the beneficiary's daily job duties.

The Petitioner has submitted job descriptions for the positions held by the Beneficiary and his subordinates at the Australian company. The Petitioner initially listed the Beneficiary's "[p ]rimary

. functions." In response to the RFE, the Petitioner organized those same functions into four groups:

[The Beneficiary] spent approximately 40% of his time in guiding and managing the sustainable viability of in line with company vision, mission and core values, including implementing succession planning; identifying, analyzing and implementing opportunities for increased profitability and growth through operational efficiencies and improvements; developing and managing company operating, communication and ,information systems; identifying, analyzing and implementing opportunities to achieve marketing advantage through innovation.

[The Beneficiary] spent another 40% of his time in overseeing key relationships with customers, suppliers and international agency

partners, through his subordinate management staff. He manages t~~ continual improvement of service quality, and negotiates supplier and shipping contracts.

[The Beneficiary] spent 10% of his time in recruiting, retaining, training and supporting subordinate Managers, and another 1 0% of his time in budgetary planning/reporting to the Board of Directot[s]. He managed all of the company's legal issues, including lawsuits, conflict management and claims over $10,000.

The above description includes few details about identifiable activities that the Beneficiary performed for the foreign company. Statements such as "implementing opportunities to achieve marketing advantage through innovation" and "manages the continual improvement of service quality" describe goals rather than specific activities undertaken to achieve those goals. The Petitioner states that the Beneficiary "spent ... 40% of his time in overseeing ... key relationships with customers, suppliers and international agency partners, through his subordinate management staff," but this does not answer the question of what the Beneficiary personally did, as opposed to what the subordinate staff did. Oversight is a level of responsibility rather than an identifiable task that actively or directly consumes time in one's schedule.

;

4 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). 5 !d.

Matter of F-(USA) Inc.

The Petitioner stated that the Beneficiary "spent 1 0% of his time in recruiting, retaining, training and supporting subordinate Managers." This sentence does not appear to describe managerial work. The Petitioner has not described what specific duties these functions entailed. There are non-managerial ways in which one might "train" or "support" other employees. Recruitment does not appear to be a managerial function, and the Petitioner has not shown how "retaining" employees is an affirmative function in its own right rather than a goal indirectly achieved through other tasks.

Given these deficiencies in the Beneficiary's job description, the Petitioner has not shown that the Beneficiary devoted his time primarily to managerial duties.

Beyond the required description of the job duties, USCIS reviews the totality of the record when examining the claimed managerial 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.

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 the Petitioner's 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."6 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. 7

The Petitioner states "[t]here is simply no requirement in the law that we show that all of [the Beneficiary's] employees qualified as managers ... , only that he himself does." The Director did not require the Petitioner to make such a showing. The Petitioner has, however, asserted that the Beneficiary "managed a team of subordinate managers," and therefore it was reasonable for the Director to look to the roles held by the Beneficiary's subordinates.

The statutory definition of "managerial capacity" allows for both "personnel managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to primarily supervise and control the work of other supervisory, professional, or managerial employees. The statute plainly states that 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 101(a)(44)(A)(iv) of the Act; 8 C.F.R. §

6 Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic ofTranskei 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). 7 See, e.g., Systron_ics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).

(b)(6)

Matter of F-(USA) Inc.

204.5(j)(4)(i). If a beneficiary directly supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. § 204.5(j)(2).

The Petitioner listed the following "[p ]rimary functions" for the position of general manager:

• Recruit, retain, train and manage operational crew for the [sic], within the parameters of legislation and Company culture.

• Develop and maintain direct relationships with the customers of

• Develop and maintain direct relationships with key suppliers of

• Debtor and creditor management. • Negotiate with, assess and appoint service providers. • Identify opportunities for increased profitability and growth. • Carry out freight and ancillary forwarding operations as required and ensure

tracking/ status reporting data is updated as required. • Identify and implement opportunities to improve customer satisfaction, increase

revenues and reduce costs. • Manage at your discretion any conflict with local customers I service providers and

local claims up to $5000. • Undertake domestic and international business trips as required to maintain

relationships with overseas offices and agencies and attend specific projects as necessary.

• Generally represent group interests in Australia, as required and act as company ambassador at all times, upholding and protecting the Company's good reputation.

Although the organizational chart shows this position as directly subordinate to the Beneficiary, the job description indicates that this position reported to the CEO, whose duties have not been described. The job description for the two operations manager positions is nearly identical to the general manager's job description quoted with minor changes in wording to reflect the more limited responsibilities at the local office level.

The person responsible for finance and administrative tasks, though called a "manager" in some materials, performs administrative duties such as handling billing and accounting and monitoring office supplies. The two freight forwarding operations specialists perform operational and administrative tasks. The job description indicates that these workers "coordinate local cleaning and transportation to delivery," functions apparently delegated to contractors, as well as "monitor and report shipment status," "coordinate customs clearance," and "attend AQIS inspections and customs examinations."

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(b)(6)

Matter of F-(USA) Inc.

The Petitioner has described a top-heavy organization, in which most of the employees hold managerial or executive titles. The Petitioner has not addressed the Director's concerns as to why a company that claims only two operational workers and one administrative staffer requires five managers and/or executives. We conclude that the Petitioner has not provided a sufficiently complete or accurate picture of the various subordinates' duties. The evidence must substantiate that the duties of the Beneficiary. and his or her subordinates correspond to their placement in an organization' s structural hierarchy; job titles are not probative of an employee's supervisory or management responsibilities and will not establish that an organization can support a managerial position. ,

Here, the Petitioner claims that the foreign entity had only two employees to provide the services of the company while employing two senior managers (the Beneficiary and the CEO) who are stated to have a number of shared oversight responsibHities, and three subordinate managers who are claimed to perform essentially the same duties. It is reasonable to believe that some of the subordinate "managers" regularly performed the day-to-day tasks of providing freight forwarding services in order for the company to handle its volume of business. In fact, the general manager and operations manager job descriptions all include responsibility to "carry out freight and ancillary forwarding operations as required and ensure tracking/ status reporting data is updated as required." There is insufficient evidence to establish that the Beneficiary directly supervised a "team of managers" as claimed, or that he primarily directed a subordinate staff of manage~s, supervisors, or professionals. As discussed, the position description provided for the Beneficiary was too general to allow us to determine what types of duties he primarily performed while employed by the foreign entity.

Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary · was employed abroad in a managerial capacity.

III. . QUALIFYING RELATIONSHIP

Beyond the Director's decision, the Petitioner has not submitted enough evidence to show that it has a qualifying relationship with the Beneficiary' s foreign employer.

To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates."8 The pertinent regulations at 8 C.F.R. § 204.50)(2) define the relevant terms.

The Petitioner states that it is a wholly owned subsidiary of It has submitted a copy of stock certificate number 1, indicating that the Australian company owns 200 shares of the petitioning company.

8 See generally section 203(b)(I)(C) ofthe Act; 8 C.F.R. § 204.5(j)(3)(i)(C).

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Matter of F-(USA) Inc.

If the foreign company owns all shares of the petitioning company, then a qualifying relationship exists. The Petitioner, however, has not shown that the 200 shares shown on the certificate represent all issued shares as of the date of filing. The certificate refers to "1 0,000 authorized shares." The stock certificate held by the foreign company accounts for only 2% of that total.

As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate entity. We must also examine the corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings, in order to determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual control of the entity.9 Without full disclosure of all relevant documents, we are unable to determine the ~lements of ownership and control.

For the reasons stated above, the Petitioner has not met its burden of proof to establish its qualifying relationship with the Beneficiary's former foreign employer.

IV. 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. 10 Here, that burden has not been met.

The appeal is dismissed.

Cite as Matter ofF-(USA) Inc., ID# 10774 (AAO Oct. 19, 2016)

9 See Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 1632. 10 Section 291 of the Act, 8 U .S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 20 13).

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