OMNIBUS ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This action arises out of the United States Citizenship and Immigration Services’ (“USCIS”) denial of a Form 1-140, Immigrant Petition for Alien Worker Visa (“Form 1-140 Petition”), and the Administrative Appeals Office’s (“AAO”) subsequent denial of an appeal. It is currently before me on the parties’ cross-motions for summary judgment.
I. BACKGROUND
Plaintiff, Saga Overseas, LLC (“Saga”), is the U.S. subsidiary of a Venezuelan company, Ferrelago, C.A. (“Ferrelago”), which has two primary office locations in Venezuela. Pl.’s Mot. Summ. J. ¶2, ECF No. 19. Ferrelago operates as an importer and exporter of agricultural and construction machinery and provides related consulting services. Def.’s Mot. Summ. J. 1, ECF No. 18. On July 22, 2013, Saga filed a Form 1-140 Petition with USCIS for Diana Maria Auvert Vetencourt (“Vetencourt”), a foreign national, to work in the United States as Saga’s general manager. PL’s Mot. Summ. J. ¶ 10; Defi’s Mot. Summ. J. I. Saga sought to qualify Vetencourt as a “multinational business executive or manager” pursuant to 8 U.S.C. § 1153(b)(1)(C), or Section 203(b)(1)(C) of the Immigration and Nationality Act (“the Act”). Id. at 2.
Vetencourt has a Master’s Degree in Business Administration from the Institute of Higher Education Administration in Venezuela and has over twenty years of advanced work experience in the field of Business Administration. PL’s Mot. Summ. J. ¶5. Ferrelago hired Vetencourt as a Marketing Analyst in 1990, promoted her to Marketing Manager in 1999, and again promoted her to the position of General Manager of Ferrelago in 2007. Id. ¶ 6.
On October’25, 2010, Saga submitted a Form 1-129, Petition for a Nonimmigrant Worker Visa, seeking to classify Vetenc-
Subsequently, Saga filed the instant Form 1-140 Petition, and included a general job description of Vetencourt’s position along with its application materials. Def.’s Mot. Summ. J. 2. The job description stated that Vetencourt would direct Saga by overseeing its growth and structural development, setting strategies, and planning the company’s activities and human resources. Id. Further, Saga stated that Ve-tencourt would represent the company in all contract negotiations at the national and international levels, control financial investments and technical operations, and have discretionary authority over all personnel actions, including hiring and firing of employees, evaluating employee performances, and establishing procedures for all training purposes. Id.
Due to an insufficiency of evidence establishing that Vetencourt would be employed in the United States in a managerial or executive capacity, USCIS issued a Request for Evidence (“RFE”) on September 30, 2013. Id. USCIS determined that Saga’s description of Vetencourt’s job was too vague, making it difficult to determine precisely what job duties she would perform on a daily basis. Id. Further, USCIS deemed Saga’s claimed staff of six employees to be limited. Id. Saga responded to USCIS’ RFE with evidence that included a percentage breakdown of Vetencourt’s job duties, consisting of a list of 29 items of her daily, weekly, monthly, quarterly, and yearly job duties. Id. at 3.. Saga also provided an organizational chart depicting a three-tiered organizational system with Vetencourt at the top, followed by an administrative assistant, an attorney, an accounting firm, a business development specialist, and one vacant position, titled “business consultant” below her. Id. The bottom tier of the organizational chart also included a sales associate, identified as employed in Venezuela, a freight forwarder, and one vacant position titled “logistics import & export specialist.” Id.
After reviewing Saga’s submissions, US-CIS determined that Saga failed to establish that Vetencourt would be employed in the United States in a qualifying managerial or executive capacity. Id. Therefore, USCIS denied Saga’s Form 1-140 Petition on behalf of Vetencourt on February 21, 2014. Id, at 3. More specifically, USCIS found that Saga’s descriptions of Vetenc-ourt’s job duties “fail to convey an understanding of exactly what the beneficiary will be doing on a day-to-day basis.” R. at P573. The decision further stated that many of Vetencourt’s job duties “are not higher level duties that necessitate a multinational executive or manager.” Id. USCIS also noted that, the two employees who work directly for Saga, under Vetencourt’s purported supervision, are both employed on a part-time basis. This led USCIS to question whether those employees could relieve Vetencourt from having to perform nonqualifying tasks as the primary portion of her daily responsibilities. Def.’s Mot. Summ. J. 3.
Saga filed a timely appeal (Form I-1290B, Notice of Appeal) seeking to over
II. LEGAL STANDARD
Under Rule 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Iri determining whether summary judgment is appropriate, a court “must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Haves v. City of Miami,
When USCIS grants or denies a visa preference classification, this decision is subject to judicial review under the Administrative Procedures Act (“APA”), see 5 U.S.C. § 702, “but the standard [of review] is a highly deferential one which presumes that the agency’s action is valid.” Khamisani v. Holder, No. H-10-0728,
“Under the APA, a court shall set aside an action of an administrative agency only where it is arbitrary, capricious, or an abuse of discretion.” Preserve Endangered Areas,
Thus, “[t]he role of the court is not to conduct its own investigation and substitute its own judgment for the administrative agency’s decision.” Preserve Endangered Areas,
III. DISCUSSION
Each year, USCIS grants a limited number of preference visas to “certain multinational executives and managers” who serve “in a capacity that is managerial or executive.” 8 U.S.C. § 1153(b)(1)(C); see Khamisani,
The Act defines “managerial capacity” as follows:
[A]n assignment within an organization in which the employee primarily-
(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 man- • aged; and
(iv) exercises discretion over the day-today 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.
8 U.S.C. § 1101(a)(44)(A).
The Act defines “executive capacity” as follows:
[A]n assignment within an organization in which the employee primarily-
(i) directs the management of the organization or a major component or function of the organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
8 Ü.S.C. § 1101(a)(44)(B).
Additionally, 8 U.S.C. § 1101(a)(44)(Q states the following regarding staffing levels and size of organizations:
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.
8 U.S.C. § 1101(a)(44)(C).
Here, Saga contends that USCIS ignored the evidence it provided regarding Vetencourt’s classification as an executive or manager in support of its Form 1-140 Petition. As a result, Saga contends that USCIS’s decision is so contrary to the administrative record as to necessitate reversal. Saga further claims that USCIS applied an incorrect legal standard in its review of the Form 1-140 Petition filed on behalf of Vetencourt, and thus, behaved in an arbitrary and/or capricious manner. Id. However, USCIS disagrees, noting that the record in this case does not substantiate Saga’s assertion that Vetencourt’s position is primarily managerial or executive in nature. USCIS explains that it considered Vetencourt’s job description in the context of Saga’s organizational structure as a whole, the duties of Vetencourt’s subordinate employees, the ability of these subordinate employees to relieve Vetencourt from performing operational duties, the nature of Saga’s business, and other factors that contribute to a comprehensive understanding of Vetencourt’s actual duties and role within Saga. USCIS maintains that in looking at these different factors, Saga has failed to establish that Vetencourt is primarily employed in a managerial or executive capacity.
After considering the parties’ arguments and the administrative record, I agree with USCIS’s decision. A review of the administrative record reveals that USCIS considered relevant factors, and that there is at least some “rational connection” between the record and the- denial of Saga’s petition. Q Data Consulting, Inc. v. I.N.S.,
First, USCIS reasonably concluded that the record evidence fails to adequately demonstrate just how Vetencourt’s responsibilities are primarily managerial or executive in nature. In response to USCIS’s RFE, Saga submitted documentation purportedly expanding upon the descriptions of Vetencourt’s job duties. However, US-CIS found the submitted job descriptions to be lacking in specificity. For example, Saga listed the following specific tasks to be carried out by Vetecnourt: “supervising employees at the end of the day” and “planning special activities.” Although Saga provided some additional details regarding these duties, USCIS found the information provided to be inadequate in explaining the actual work Vetencourt performs to achieve the broad objectives outlined by Saga in its general job descriptions.
The general descriptions provided by Saga fall short of the detailed descriptions necessary to determine whether an employee’s actual duties will be primarily managerial. See 8 C.F.R. § 204.5(j)(5). General descriptions are inadequate to satisfy the implementing regulations because, as one court has observed, “[t]he actual duties themselves reveal the true nature of the employment.” Fedin Bros. Co. v. Sava,
Further, USCIS reasonably decided that some of Vetencourt’s tasks are of a nonqualifying nature. The following duties and responsibilities provided in support of Vetencourt’s petition are more non-managerial or administrative in nature: checking mail, paying bills, contacting clients, checking bookkeeping software, and getting new clients for consulting projects. USCIS was within its bounds in determining that these duties, and perhaps others, are non-managerial. “By requiring that the duties be primarily managerial or executive, the express language of the regulations excludes workers whose job involves a mix of management and non-management responsibilities.” Khamisani,
Additionally, USCIS correctly found that the record fails to establish that Saga has the staffing necessary to relieve Ve-tencourt from having to spend a majority of her time performing non-managerial tasks. USCIS considered the job descriptions and organizational charts provided by Saga and determined that a majority of Vetencourt’s time could not possibly be spent acting in an executive or managerial capacity. As the AAO explained, “[g]iven that the petitioner had two vacancies within its organization, it is. unclear who, if not
In Sunshine Co. Food Distrib., the Eleventh Circuit held that the district court did not err in granting summary judgment in favor of USCIS after “USCIS found that the majority of [the beneficiary’s time] could not be spent acting in an executive or managerial capacity because [the beneficiary] had to fulfill non-managerial and non-executive tasks.” Sunshine Co. Food Distrib., Inc.,
Saga further contends that US-CIS erred in failing to properly consider the expert testimony of Professor Burak, which Saga submitted to further bolster its Form 1-140 Petition for Vetencourt. However, since Professor Burak indicated that he was unfamiliar with the Act’s definitions of managerial and executive capacity, it was not arbitrary or capricious for USCIS to decline to afford his opinions much evi-dentiary weight. Specifically, “[t]here is no indication that Mr. Burak was aware of and thoroughly understood the applicable statutory definitions.” Id. As such, the amount of weight USCIS accorded Mr. Burk’s opinions was reasonable and not an abuse of discretion.
Finally, Saga argues that this Court should rule in its favor because US-CIS previously granted Vetencourt’s L-1A visas, which have the same managerial criteria as the 1-140 classification. Such inconsistency, Saga argues, mandates reversal of the denial as well as an explanation of the inconsistency. However, Saga’s arguments are inapposite. “[M]any cases where 1-140 petitions were denied involved aliens who already enjoyed classification L nonimmigrant status.” Q Data Consulting, Inc.,
IV. CONCLUSION
Having reviewed the arguments and the record, I do not find that USCIS was arbitrary or capricious, or that it abused its discretion in denying Saga’s Form 1-140 Petition on behalf of its employee, Diana Maria Auvert Vetencourt. Although I am sympathetic to Vetencourt’s situation, I am bound by the applicable laws and standard of review. Therefore, it is hereby ORDERED and ADJUDGED as follows:
(1) Defendants’ Motion for Summary ' Judgment (ECF No. 18) is GRANTED.
(2) Plaintiffs Motion for Summary Judgment (ECF No. 19) is DENIED.
(3) All pending motions, if any, are DENIED as moot.
(4) The Clerk shall CLOSE this case.
(5) A separate judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure shall issue concurrently.
DONE and ORDERED in Chambers at Miami, Florida, this 10th day of August 2016.