Unclearly Executive or Managerial: A Review of Recent Nonprecedent EB-1C AAO Decisions

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Executives and managers have a unique path to permanent residence in the employment-based first preference green card category (EB-1C). We sought to find examples of how foreign nationals are faring in obtaining green cards through EB-1C. To that end, we found four non-precedent decisions issued by the U.S. Citizenship and Immigration Services’ Administrative Appeals Office (AAO) since January 2017. Each of these cases was denied.

After a brief summary of EB-1C eligibility criteria, this article summarizes each AAO decision, with particular attention paid to the evidence provided and how the AAO treated that evidence. It concludes with some observations on what foreign nationals and employers should do to maximize their chances of obtaining EB-1C green cards.

EB-1C Eligibility Criteria

Executives and managers may seek an EB-1C green card after one year of working for a foreign enterprise. To be fully eligible, a foreign national’s foreign employer must have an affiliate, subsidiary, parent company, or office [1] in the United States that has been doing business for a full year. If no such affiliate exists, the foreign national may come to start that business through a “new office” L-1 nonimmigrant visa. Upon completing one year of U.S. operations, the foreign national would then be able to seek permanent residence through an EB-1C green card petition as long as she or he is fully functioning as a manager or executive in the United States.

“Executive” and “Manager” have specific meanings under immigration law. To qualify as an executive, the petitioner must demonstrate that the foreign national:

(A) Directs the management of the organization or a major component or function of the organization;

(B) Establishes the goals and policies of the organization, component, or function;

(C) Exercises wide latitude in discretionary decisionmaking; and

(D) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. [2]

To qualify as a manager, the petition must demonstrate that the foreign national:

(A) Manages the organization, or a department, subdivision, function, or component of the organization;

(B) 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;

(C) 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

(D) Exercises direction over the day-to-day operations of the activity or function for which the employee has authority. [3]

EB-1C petitions are exempt from seeking a labor certification from the U.S. Department of Labor, [4] but must still document the employer’s ability to pay the foreign national’s wage. [5]

Matter of B-S-&L-, Inc. [6]

A project management and development company petitioned for the beneficiary to work as its president. The petitioner provided an organizational chart showing that the president oversaw four direct subordinates:

  • General Manager;
  • Operations Manager;
  • Financial Manager; and
  • Administrative Manager.

In turn, the General Manager was depicted as overseeing the Project Manager, and the Administrative Manager was depicted as overseeing the Administrative Assistant. The petitioner included paystubs and job descriptions for the subordinate staff.

In addition, the petitioner provided the following job description for the role of president:

Direct the Management and Discretionary Functions (40%):

· Establish strategies and policies for the Company to achieve its financial short and long term goals, and supervise productivity to maximize returns for the Company; (25%)[;]

· Establish goals and policies in order to expand operations and client base in the United States, the Caribbean, and Latin America; (30%)[;]

· Analyze the operations· of the Company to evaluate the performance of the Company and its staff; (30%)[; and]

· Confer with General Manager on daily issues and pending matters; (15%)[.]

Direct the Development Functions (30%):

· Establish commercial relationships with companies in the United States and abroad to develop our company’s operations; (40%)[;]

· Identify and filter into new markets for the Company's expansion throughout the Caribbean and Latin America; (30%)[; and]

· Direct the negotiations with corporate and individual clients and oversee the development of the entire business operations[] (30%)[.]

Direct the Financial Functions (15%):

· Direct the preparation of financial statements and confer with the Board of Directors and the Financial Director to ensure that the Company's financial objectives are achieved; (40%)[;]

· Oversee accounts receivable and payable; (35%)[; and]

· Obtain and arrange for funds for a variety of uses for the company with Board of Directors[] (25%)[.]

Direct the Marketing Functions (15%):

· Continue to identify value added services to be offered to customers ... and transmit those ideas to the General Manager[,] who then meets with the project management team to implement such services; (15%)[;]

· Direct, supervise and approve the execution of promotional and advertising materials based on his experience with customers’ needs; (40%)[; and]

· Direct marketing strategies to continue to expand the Company’s reach in Curacao, Panama, and throughout the Caribbean and Latin America[] (25%)[.]

The AAO found that the description above failed to provide sufficient detail regarding the foreign national’s duties and contained no day-to-day specifics. In particular, the AAO found that the duties included: “three separate duties related to developing goals, policies, and strategies for expansion in Caribbean and Latin American markets without distinguishing between them, elaborating on the specific tasks involved, or identifying any policies and strategies he would implement.”

In addition, the AAO found the duties that involve overseeing the company’s overall operations to “merely paraphrase the definition of executive capacity,” which the AAO held was forbidden by Fedin Brothers Co. v. Sava. [7]

The AAO also found that the organizational chart and subordinate job descriptions submitted with the petition did not demonstrate that the beneficiary would be sufficiently relieved from day-to-day operations. In particular, the AAO noted that the subordinate job descriptions “include little mention of their interactions with clients, suppliers, or other companies.”

Taken together, the AAO held that the evidence provided by the petitioner failed to demonstrate executive capacity. Accordingly, the AAO dismissed the appeal.

Matter of J-E- Inc. [8]

An auto parts and service business petitioned to employ the beneficiary as its president, arguing that the position qualified as both managerial and executive. To support this argument, the petitioner provided the following job description:

· Manage department managers of Sales & Administration and Technical Operations: assign their managerial responsibilities; confer with them regarding operational status and recommendations; coordinate managerial activities, resolve operational problems. (35%)[;]

· Direct and coordinate financial and annual budget activities to fund operations, maximize investments. (10%)[;]

· Analyze operations to evaluate performance of a company or its staff in meeting objectives or to determine areas of potential cost reduction, program improvement, or policy changes including directing customer relationship. (20%)[;]

· Direct, plan, or implement policies, objectives, or activities of organizational [sic] or businesses to ensure continuing operations, to maximize returns on investments, or to increase sales of motors and motor parts. (10%)[;]

· Negotiate or approve contracts or agreements with suppliers, distributors, and customers including international contracts for engine components in South Africa and abroad for the purpose of procuring foreign engines and parts. (20%)[; and]

  • Direct human resources activities. (5%)[.]

The AAO found these duties vague, stating, “Detail, in a job description, goes beyond time percentages in the job description. Words and phrases such as ‘a company or its staff’ and ‘organization[s] or businesses’ are general references rather than a description of one particular position at a known company.”

In addition, the AAO found that these duties failed to demonstrate managerial or executive capacity because the duties “paraphrased or directly quoted tasks listed for ‘Chief Executives’ in O*NET, a database of job information sponsored by the U.S. Department of Labor.” The AAO held that quoting O*NET, which the AAO described as “a generic definition from a government-sponsored publication,” was akin to restating the basic requirements of the statute or regulation, and therefore contrary to the Second Circuit’s decision in Fedin Bros. Co. The AAO thus found that the job description provided by the petitioner did not satisfy its burden of proof.

In addition to the beneficiary’s job description, the AAO also considered the job descriptions submitted for the beneficiary’s three subordinates:

Workshop & Warehouse Manager (also called Mechanic Manager & Lead Mechanic)

Earned $23,140 in 2014

  • Supervise mechanic duties
  • Diagnostics
  • Repairs on vehicles
  • Mechanical work
  • Reports sales to Functional Manager
  • Operates Forklift

Mechanic

Earned $20,902 in 2014

  • Diagnostics
  • Mechanical work

Part-Time Mechanic

Earned $8,940 in 2014, all during the first quarter

  • Mechanic work on heavy work load days

While the AAO found that these subordinates relieved the beneficiary from performing non-qualifying automobile repair and serving tasks, the petitioner did not explain who performed other non-qualifying tasks, such as purchasing, marketing, maintenance, or accepting payment for services. Because the petitioner did not account for these additional non-qualifying services, the AAO found that the job descriptions of the beneficiary’s subordinates did not demonstrate that the beneficiary worked in a managerial or executive capacity.

In addition, the AAO posited that previous L-1A approvals for the beneficiary may have been in error because of the beneficiary’s immigrant intent:

We further note that when the beneficiary of an L-1A nonimmigrant petition is an owner or major stockholder of the company, the petition must include evidence that the beneficiary’s U.S. services will be temporary, after which the organization will transfer the Beneficiary abroad. See 8 C.F.R. §214.2(1)(3)(vii). The Beneficiary is the sole owner of the petitioning U.S. company. and claims to be the sole owner of the foreign entity. The L-1 A classification is not intended to be a means for the owners of businesses to permanently transfer themselves to the United States. If the Beneficiary had intended to immigrate all along, then the earlier approvals were contrary to the regulations and therefore erroneous.

Finally, because the employer abroad had been deregistered, the petition did not properly demonstrate a qualifying relationship.

Given the above, the AAO dismissed the appeal.

Matter of S-A-, Inc. [9]

An education business petitioned to classify its Director for Asian Market Recruitment as a functional manager. The petitioner provided the following job description for this position:

· [The beneficiary] directed a major function of the Subsidiary which includes creating and managing agencies with a purpose of targeting new markets and potential leads in Asian regions. (20%)

· [The beneficiary] managed the Independent Agent, [REDACTED] in China who controls three Subcontractors. . . . Other Independent Contractors [the beneficiary] manage[d] are [REDACTED] and [REDACTED] in Korea who operate more than 15 agencies. [The beneficiary] further managed three main Educational Agencies in China, Korea, and Japan . . . . (50%).

· [The beneficiary] also managed an essential function within the Subsidiary, which is new business creation and recruitment in the Asian markets. This is an essential function of the Subsidiary because [the beneficiary] created 90% of the Company’s business through the leads that he created from partnerships and strategic Agency Agreements. Without [the beneficiary's] performance as Director of Asian Market for Recruitment, the Company would not have a pipeline to recruit new students[.] (30%)

The AAO found that these duties were vague, did not describe the day-to-day responsibilities of the position, and “in essence repeat the language of the statue or regulations” (citing Fedin Bros.). As such, this job description did not demonstrate managerial capacity to the AAO’s satisfaction.

In addition, the AAO found that the petitioner did not include any evidence of the beneficiary’s duties concerning managing a major function of the petitioner. Because of this, and the findings above, the AAO dismissed the appeal.

Matter of B-A-, Inc . [10]

A manufacturer of tires and rubber products petitioned to classify its Technical Services Manager as a functional manager position. The petitioner explained that the Technical Services Manager: [11]

· Oversees and leads all technical communication between the petitioner and its Japanese Original Equipment (“OE”) manufacturing customers in support of engineering and technical negotiations.

· Is responsible for developing and managing the technical strategy for OE customers.

  • Negotiates complex customer issues.
  • Develops management-level relationships.
  • Manages tire testing and logistics.
  • Attends joint test sessions.

· Coordinates technical meetings in support of the tire standard approval process.

· Is responsible for interpreting, clarifying, and recommending necessary engineering efforts to obtain full engineering approval of OE tires.

The AAO found these duties to be vague and to not adequately describe the beneficiary’s “day-to-day routine.” In addition, the AAO held that the description included “conclusory assertions,” and cited Fedin Bros. Co. to state that repeating the language of the statute or regulations was insufficient to meet the burden of proof.

In addition, the AAO found that the petitioner had not documented the specific function managed by the beneficiary. In addition, the AAO found no evidence concerning who would relieve the petitioner of non-qualifying job duties. For these reasons, in addition to the concerns with the job description, the AAO dismissed the appeal.

Key Takeaways

While it is difficult to draw broad conclusions from four cases, a few themes reoccur:

1. The AAO expects extremely detailed job descriptions that give a clear idea of what an individual does on a daily basis. The problem with this is that in practice a manager’s or executive’s duties may vary extensively from day to day. The best way to resolve this may be to provide extensive documentation of each duty to clearly show the types of activities that the beneficiary may perform.

2. The AAO reads Fedin Bros. Co. broadly. While that case involved a very brief job description, [12] the AAO nonetheless uses the decision to find that any job description not providing extensive detail is merely reiterating the statute or regulations. In addition, the AAO broadens this decision to state that any language mirroring any government agency definition, including agencies outside USCIS, undermines the probative value of the job description. Lastly, the AAO appears to be applying this case nationally as a precedent decision.

3. The AAO expects detailed job descriptions for subordinates that account for any possible nonqualifying job duty that could be performed by a beneficiary. If these duties are not accounted for by the subordinates, the AAO expects the petitioner to provide some explanation of who performs these services. This appears to require a petitioner to anticipate any nonqualifying duty that can be conceived of by an adjudicator, and account for who, other than the beneficiary, will perform the service. In essence, the AAO is creating an additional eligibility requirement.

Outside of these themes, it is important to note that the AAO’s interpretation of 8 C.F.R. § 214.2(1)(3)(vii) in Matter of J-E- Inc. appears to be problematic for those with any ownership interest in the petitioning company. This reading appears to chip away at the dual intent normally authorized for L-1 visa status holders where they are major shareholders or owners.

Given these trends, it appears that the AAO is looking for extensive detail and documentation and is broadly interpreting law in ways that are unfavorable toward EB-1C petitioners and beneficiaries.



[1] Essentially, the foreign entity and the U.S. entity must be owned and controlled by the same owner or group of owners (with similar ownership proportion of each entity), or must be the same entity.

[2] 8 C.F.R. § 204.5(j)(2).

[3] Id .

[4] 8 C.F.R. § 204.5(j)(5).

[5] 8 C.F.R. § 204.5(g)(2).

[6] 2018 Immig Rptr. LEXIS 7608 , ID # 1237710 (June 27, 2018), https://www.uscis.gov/sites/default/...18_01B4203.pdf .

[7] 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff’d, 905 F.2d 41 (2d Cir. 1990). In Fedin Bros., the L-1 petitioner provided two documents, which taken together provided only a cursory job description: “To establish corporate policy and implement decisions after consultation with others in corporate; hire, fire and promote employees; extend markets for company products; liaise with buyers; negotiate contracts, etc.,” and “primarily responsible for the day-to-day operation of the company as well as strategic long-range planning for its future growth, and establish organizational goals and policies and have full power to hire and discharge personnel. [He] also [has] the capacity to negotiate and execute contracts on behalf of the company.” 724 F. Supp. at 1108.

[8] 2017 Immig. Rptr. LEXIS 22151, ID # 53001 (Sept. 27, 2017), https://www.uscis.gov/sites/default/...17_01B4203.pdf .

[9] 2017 Immig. Rptr. LEXIS 22166, IC # 749766 (Oct. 31, 2017), https://www.uscis.gov/sites/default/...17_01B4203.pdf . Some of the brackets are the AAO’s.

[10] 2018 Immig. Rptr. LEXIS 7592, ID #1222620 (May 22, 2018), https://www.uscis.gov/sites/default/...18_03B4203.pdf .

[11] Note: this description is gleaned from the summary provided by the AAO, rather than being a list directly quoted in the opinion.

[12] Supra note 7.


About The Author

David Wilks is a Senior Counsel in Miller Mayer’s Immigration practice group. Mr. Wilks’ practice focuses primarily on employment-based immigration. He has represented a wide range of clients, including universities, multinational corporations, health care institutions, small businesses and entrepreneurs in seeking immigrant and nonimmigrant status for individuals in diverse fields and specialties. Mr. Wilks has also provided immigration expertise relating to large corporate acquisitions, as well as assisted clients with I-9 compliance and family-based petitions for permanent residence. Mr. Wilks currently serves on national leadership committees with the American Immigration Lawyers Association. In addition, Mr. Wilks has spoken both nationally and internationally on matters related to immigration law. Mr. Wilks is a member of the American Immigration Lawyers Association, and is licensed by the New York State bar. He received his B.A., cum laude, from Brigham Young University, and his J.D. from Cornell Law School.

Brooke Ireland is an immigration assistant at Miller Mayer. She graduated with a Bachelor of Science degree from Ithaca College, and has multiple years of experience working in the immigration field.

Stephen Yale-Loehr is an Attorney Of Counsel in Miller Mayer’s Immigration practice group. He brings 30 years of immigration law experience to bear in advising corporate and individual clients on a broad array of family- and employment-based immigration matters. In addition to his work at Miller Mayer, Mr. Yale-Loehr is an active and internationally renowned member of the immigration law community. He teaches immigration and asylum law at Cornell Law School as a Professor of Immigration Practice. He also founded and was the original executive director of Invest in the USA (IIUSA), a trade association of EB-5 immigrant investor regional centers. He is listed in Who’s Who in America and is annually listed in Chambers Global, Chambers USA, and An International Who’s Who of Corporate Immigration Lawyers as one of the world’s best immigration lawyers. He is frequently quoted in the press on immigration issues and has often testified before Congress. He is the 2001 recipient of AILA’s Elmer Fried Award for excellence in teaching and the 2004 recipient of AILA’s Edith Lowenstein Award for excellence in advancing the practice of immigration law. He is also a Fellow of the American Bar Foundation and a Nonresident Fellow of the Migration Policy Institute in Washington, DC. Mr. Yale-Loehr has co-authored or edited many books, including Immigration Law and Procedure, the leading 20-volume treatise on U.S. immigration law; Green Card Stories; America’s Challenge: Domestic Security, Civil Liberties and National Unity After September 11; Balancing Interests: Rethinking the Selection of Skilled Immigrants; Global Business Immigration Practice Guide; J Visa Guidebook; Understanding the Immigration Act of 1990; and Understanding the 1986 Immigration Law, and numerous law review articles. Mr. Yale-Loehr is a member of the New York State bar, the U.S. Court of Appeals for the D.C. Circuit, and the U.S. Supreme Court. He received his J.D. from Cornell Law School and his B.A. from Cornell University.