Virginia Lawyers Weekly VA Lawyers Weekly
Where the wholly-owned subsidiary of a China-based company petitioned to permanently employ foreign citizen as a general manger, but the statute required a detailed list of the job-related tasks that the man has performed or will perform, and the submission here was “filled with fluffy descriptions devoid of any real substance,” the petition was denied.
Background
Elizur International Inc. is a wholly owned subsidiary of China-based company Triple-R International Glass Co. Ltd. Elizur filed an immigration petition, seeking to permanently employ Chuncheng Ren in the United States as a multinational executive or manager under the Immigration and Nationality Act, or INA. The United States Citizenship and Immigration Services, or USCIS, denied Elizur’s petition.
Elizur and Ren filed suit in federal district court pursuant to the Administrative Procedure Act, or APA, challenging the agency’s denial of the petition as arbitrary and capricious. The district court granted summary judgment to the USCIS.
Standard
To qualify as a multinational manager or executive under the INA, the alien must satisfy two criteria. For an alien already lawfully in the United States, like Ren, in the three years preceding admission as a nonimmigrant, must have been employed outside the United States for at least one year in a managerial or executive capacity. Second, the alien must seek to enter the United States to continue to render services to the same employer, or to a subsidiary or affiliate thereof, in a managerial or executive capacity.
Neither this court nor the Supreme Court has closely examined the requisite level of proof to establish that an employee has worked or will work in a managerial or executive role. But other courts uniformly hold that the sponsoring employer must submit a detailed list of the job-related tasks that the putative beneficiary has performed or will perform; general or vague descriptions are insufficient.
The court finds this line of cases instructive and persuasive, and similarly holds that the petitioner must provide specific details concerning the putative beneficiary’s job-related tasks. Without such specifics, the agency is hamstrung in its ability to determine whether the putative beneficiary has been or will be employed in the required managerial or executive role.
But a thorough job description is not enough. Rather, that description must also reveal that the putative beneficiary’s duties have been or will be “primarily” managerial or executive in nature. That the employee’s duties involve some managerial or executive tasks will not do: “such tasks must encompass his primary responsibilities.”
Merits
The USCIS concluded that Elizur failed to supply sufficient evidence demonstrating that Ren was employed in a managerial or executive capacity as general manager of Triple- R prior to his admission into the United States. The agency did not commit a clear error in judgment. The record contains ample support for the agency’s conclusion that Elizur failed to provide the necessary level of detail as to Ren’s duties to permit the agency to conclude that Ren functioned in a managerial or executive capacity while employed at Triple-R.
Elizur and Ren assert that the agency impermissibly cherry-picked statements from Triple-R’s letter while ignoring others, including statements detailing Ren’s achievements as general manager. This court disagree with their characterization. The USCIS fairly described the whole submission, and it did so by highlighting specific passages that supported its decision. The four-page portion of Triple-R’s letter that Elizur and Ren claim to be sufficiently specific is filled with fluffy descriptions devoid of any real substance.
But even accepting that the agency did not explicitly discuss a handful of arguably more-specific achievements recounted in the letter, that fact doesn’t render the agency’s decision arbitrary and capricious. When viewed in the broader context of a letter that otherwise largely contains indefinite job descriptions lacking substantive worth, the inclusion of those few relatively specific achievements affords no basis to hold that the agency committed a clear error of judgment.
Elizur and Ren further argue that the agency impermissibly imposed a requirement not found in the INA—that the putative beneficiary’s executive duties must be stated in terms of “day-to-day duties” showing a “daily routine.” That argument is meritless.
Affirmed.
Ren v. United States Citizenship and Immigration Services, Case No. 21-1661, Feb. 14, 2023. 4th Cir. (Agee), from EDVA at Norfolk (Young). Geoffrey Forney for Appellants. Anna Maria McKenzie for Appellee. VLW 023-2-041. 15 pp.
