AAO Finds I-140 Petitioner Established Executive Nature of the Position

July 18th, 2016

The AAO found that the Nebraska Service Center (NSC) erred in the denial of an EB-1 Form I-140 Multinational Executive petition, finding that the beneficiary’s duties were primarily executive in nature.  Matter of R-V, ID#16025 (AAO, May 10, 2016).  The AAO set forth the regulatory (8 CFR §204.5(j)(5) and statutory (8 USC §1101(a)(44)(B)) definitions of executive capacity, which places primary importance on the beneficiary’s “elevated position within a complex organization hierarchy.”  The AAO noted that the statute requires that the beneficiary must have the ability to “direct the management” and “establish the goals and policies” of that organization.  It also stated that implicit in the definition is the requirement that there is a subordinate level of managerial employees for the beneficiary to direct.

In analyzing the evidence, the AAO indicated that the petition had submitted copious materials with details of the executive nature of the beneficiary’s position, including an organizational chart noting the beneficiary’s job duties and the percentage of time he would devote to each and the subordinate employees he would direct and their duties; a flow chart of the foreign entity’s supervisory and professional staff; and copies of work contracts between the petitioner and its clients.  The AAO held that there was sufficient evidence that “the beneficiary oversees the Petitioner’s sales and marketing departments, its market analysis and strategic planning, delivery of services, and its finances and accounting functions.”  It noted that the underlying duties associated with key departments are carried out by both US-based staff and foreign employees.  The AAO concluded that the beneficiary’s job duties are “primarily executive in nature, while the day-to-day operational tasks associated with the Petitioner’s daily functions are performed by other staff within the Petitioner’s multinational organization.  Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

There are two key points supported by this decision.  The first is that the executive duties must only be primarily executive in nature, not wholly executive.  Such an interpretation allows for the multinational executive beneficiary of an EB-1C I-140 petition to conduct some of the actual job duties, not merely direct or oversee them.  Also, this decision acknowledges that the supervision and direction of foreign staff may be taken into account in determining if the organization is sufficiently complex and if the beneficiary will be relieved of conducting most of the actual job duties.