Unpublished Disposition, 940 F.2d 1533 (9th Cir. 1989)

MEMORANDUM^* 

Champion World, Inc. appeals the district court's summary judgment affirming an INS denial of a visa petition. Champion had submitted a visa petition for permanent immigration on behalf of its employee, Daniel Chang, seeking to establish his qualifications as a manager or executive under 8 C.F.R. Secs. 214.2(1) (1) (ii) (B) and (C) (1990). Champion argues that the INS misapplied the law and failed to consider relevant evidence in making its decision. We review a denial of a visa petition by deciding whether the INS decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Lauvik v. INS, 910 F.2d 658, 660 (9th Cir. 1990). We affirm.

The appellant asserts that the INS erred by incorrectly reading INS regulations to refer to the size of the beneficiary's business and by basing its decision on Champion's size. Champion is a small import-export firm; Chang is its only full-time employee. Citing Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570, 1574 (N.D. Ga. 1988), appellant argues that the size of a business is not a relevant factor in an INS review of a beneficiary's managerial or executive status. However, Mars merely held that the INS could not impose a minimum size requirement for a business to qualify. The INS may use size as a relevant factor in assessing whether the business is of the type that can support an executive or manager. See Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Brothers Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990).

Champion also argues that the INS overlooked evidence in the record proving that Chang is a manager or executive. The definitions of managerial and executive capacity have two parts. First, the beneficiary must show that he or she performs certain high level responsibilities. Second, the beneficiary must prove that he or she primarily performs these tasks and does not spend a majority of his or her time on day-to-day functions. The record shows Chang performing some managerial and executive duties: participating in establishing company policy, directing the firm's management, and hiring and firing employees. But the record does not show that Chang functioned primarily as a manager or executive.

Appellant argues that Chang's situation must be understood as analogous to the manager's in In Re The Irish Dairy Board, No. A28 845 421 (Administrative Appeals Unit Nov. 16, 1989), an unreported INS decision. That case concerned an import-export firm employing one person, who hired contractors to perform the day-to-day operations. The INS concluded that the beneficiary's use of independent contractors showed that he was not involved in performing the day-to-day functions of the firm. Appellant asserts that Champion also functioned through contractors, and so Chang must be a manager.

Champion does not provide evidence supporting this contention. Since the record does not show that Chang hired contractors or primarily performed managerial or executive tasks, Champion has not proven that he is not mainly involved in day-to-day operations. The INS did not abuse its discretion when it determined that Chang was not a manager or executive.

AFFIRMED.