Family, Inc. v. USCIS, (9th Cir. Dec. 4, 2006)

USCIS may properly, but not exclusively consider an organization's small size as one factor in assessing whether its operations are substantial enough to support a manager.

Appellants, a corporation and its president, a native and citizen of South Korea, sought review of the district court's summary judgment order affirming USCIS's denial of their immigrant petition for classification as a multinational manager under INA §203(b)(1)(C). The corporation, Family, Inc., owned a dry cleaning operation that employed Appellant, his wife, three pressers and a cashier. USCIS determined that Appellant did not carry his burden of establishing that he was acting in a managerial capacity. Specifically, USCIS determined that "in light of all the evidence submitted, including [the company's] small size, Appellant was 'likely to be involved in the performance of routine operational activities of the business' rather than in managing the business."

The court rejected Appellant's argument that USCIS "exclusively and improperly" relied on the company's small size in determining that his duties did not meet the statutory definition of "managerial capacity." See INA §101(a)(44)(A). The court agreed with Appellant that the size of a company cannot alone justify USCIS's finding that he is not operating in a managerial capacity. However, the court concluded that the plain language of the agency's denial of the petition indicated that it considered all of the evidence before it and did not err by considering the company's size as one factor in drawing its conclusion. Furthermore, the court found that the facts in the record support USCIS's determination that Appellant was likely engaged in ordinary operational activities as opposed to managerial activities. The court held that USCIS's decision was supported by substantial evidence.