dismissed EB-1C Case: Beauty Salon

U.S. Citizenship 
and Immigration 
Services 
In Re: 5554198 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 16, 2020 
PETITION: Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, a beauty salon, 1 seeks to permanently employ the Beneficiary as its "Director of 
Business Development" under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S .C. 
§ 1153(b )( 1 )(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition , concluding that the Petitioner did not 
establish, as required, that the Beneficiary was employed abroad in a managerial or executive capacity . 2 
The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity , and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate . Section 203(b)(l)(C) of the Act. 
The Form I-140 , Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
1 Although the Petitioner identified itself as a beauty supply distributor in the Form 1-140, it did not provide evidence to 
support this claim and instead provided evidence, such as photographs of the exterior and interior of the business premises 
and an organizational chart listing licensed stylists and a cosmetologists among its personnel , which indicates that the 
Petitioner would operate as a beauty salon. 
2 Although the foreign entity was not expressly referenced , the Director refen-ed to the Beneficiary as a first-line supervisor 
overseeing an office manager and two drivers. As these positions were listed in the foreign entity's organizational chart, 
but were not listed in the Petitioner's organizational chart, it is reasonable to conclude that the Director 's unfavorable 
decision pertains to the Beneficiary 's foreign employment. 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(i)(3). 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The primary issue to be addressed in this decision is whether the Petitioner provided sufficient 
evidence demonstrating that the Beneficiary was employed abroad in a managerial capacity. 3 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
Section 101(a)(44)(A)(ii) of the Act. If a beneficiary directly supervises other employees, the 
beneficiary must also have the authority to hire and fire those employees, or recommend those actions, 
and take other personnel actions. 8 C.F.R. § 204.5(i)(2). 
On the other hand, the term "function manager" applies generally when a beneficiary does not 
primarily supervise or control the work of a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. If 
a petitioner claims that a beneficiary will manage an essential function, it must clearly describe the 
duties to be performed in managing the essential function. In addition, the petitioner must demonstrate 
that "(1) the function is a clearly defined activity; (2) the function is 'essential,' i.e., core to the 
organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the 
beneficiary will act at a senior level within the organizational hierarchy or with respect to the function 
managed; and (5) the beneficiary will exercise discretion over the function's day-to-day 
operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
When examining the managerial capacity of a beneficiary, we review the totality of the record, 
including the beneficiary's own job duties and the duties performed by the support staff and 
subordinate personnel, the employing entity's organizational structure, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business of 
the employing entity, and any other factors that will contribute to our understanding a beneficiary's 
actual duties and role in a business. 
A. Procedural History 
In support of the petition, the foreign entity's presidentJ I offered a letter stating that the 
foreign entity sells and delivers various goods ranging from building materials to clothes and furniture. 
I I stated that in addition to offering transportation services, the foreign entity sells "a variety 
of goods" and operates with a four-person staff and contract labor that is hired on an as-needed basis 
to provide customers "the services they want." The Petitioner also provided the Beneficiary's resume 
where the Beneficiary stated that in addition to providing "senior-level leadership and direction," she 
is also "responsible for completing operational and P&L reports" and coordinating with the company's 
3 As the Petitioner does not claim that the Beneficiary was employed in an executive capacity, we will not address this 
issue in the present decision. 
2 
president to ensure maximum sales and cost control. The Beneficiary also included the following list 
of her job responsibilities: 
• Ensures safety in transporting hazardous and non-hazardous materials; 
• Ensures "high level" of customer service; 
• Develops policies and procedures and carries out supervisory responsibilities in accordance 
with policy guidelines; 
• Reviews staffing guidelines and participates in staff recruitment, training, and scheduling; 
• Evaluates staff performances and addresses employee problems; 
• Conducts analysis to determine customer and market needs; 
• Communicates with staff; 
• Develops and implements market strategy and provides "checks and balances"; 
• Develops budget and inventory control programs; 
• Ensures timely completion of "administrative requirements"; and 
• Mentors and assists employees. 
Beyond the initial submissions, the Petitioner was given an opportunity to provide additional evidence 
on two separate occasions - first in response to a request for evidence (RFE) and then in response to 
a notice of intent to deny (NOID), both of which informed the Petitioner that the initially submitted 
evidence did not adequately describe the Beneficiary's managerial job duties or state how much time 
the Beneficiary spent performing each job duty. 
Despite being informed that a job duty breakdown with time allocations was needed to describe the 
Beneficiary's employment abroad, the RFE response merely reiterated, verbatim, the list of 
responsibilities in the Beneficiary's resume. The Petitioner provided no new information and did not 
address the request for a more detailed list of specific job duties and time spent performing each duty. 
Subsequently, in response to the NOID, the Petitioner provided a statement in which it cited several 
unpublished AAO decisions and interpreted Congress's omission oflanguage discussing individuals 
who produce a product or provide a service from the Immigration Act of 1990 as an indication that it 
is permissible for a function manager to primarily perform operational tasks that are required to 
produce a product or provide services. The Petitioner asserted that despite performing such tasks, the 
Beneficiary manages a "critical function" and "is nevertheless deserving of L-lA classification." The 
Petitioner did not specifically identify the "critical function" the Beneficiary is claimed to manage or 
provide a detailed description of the job duties she performed in the course of managing that function. 
Instead, the Petitioner pointed to the Beneficiary's "specialized knowledge, training, education, and 
skills" as well as her ability to "understand[] the culture" and meet the "fiduciary responsibilities" of 
her position as general manager. The Petitioner did not establish that the Beneficiary allocated her 
3 
time primarily to managerial job duties that were performed in the course of managing an essential 
function of the organization. 
Accordingly, in denying the petition, the Director reiterated concerns about the Beneficiary's job 
description, finding that the Beneficiary supervised an office manager and two drivers and therefore 
functioned as a first-line supervisor in her position with the foreign entity. 
In support of the appeal, the Petitioner reasserts arguments made in its NOID response, maintaining 
the claim that the Beneficiary assumed the role of a function manager in her position abroad. 
B. Analysis 
We find that the Petitioner has not provided sufficient evidence demonstrating that the Beneficiary's 
foreign employment meets the criteria of a function manager. First, despite repeatedly claiming that 
the Beneficiary assumed the role of a function manager in her position abroad, the Petitioner does not 
describe with specificity the activity to be managed. See Matter of G- Inc., Adopted Decision 2017-
05. Although the Petitioner conveyed a general sense of the Beneficiary's broad job responsibilities, 
it did not identify a "clearly defined activity" within the foreign entity's transportation operation. Id. 
Merely referring to the Beneficiary's "senior-level leadership" and her collaboration with the 
company's owner to achieve maximum sales and lower costs does not establish that the Beneficiary 
performed primarily managerial job duties performed. These claims are overly broad and do not point 
to a specific function that the Beneficiary is claimed to have managed or establish precisely how the 
Beneficiary acted as a function manager. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature; otherwise, meeting the definitions 
would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, despite being issued an RFE and a NOID asking for a percentage breakdown of the 
Beneficiary's job duties, the Petitioner did not provide a detailed job description delineating the 
Beneficiary's actual daily job duties and the portion of time attributed to each job duty. Failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 103.2(b)(14). Here, in lieu of providing the requested evidence, the Petitioner 
repeatedly offered the same deficient list of the Beneficiary's broad job responsibilities that do not 
support the claim that the Beneficiary managed an essential function and, instead, indicate that the 
Beneficiary engaged in personnel management by maintaining "frequent contact" with the foreign 
entity's staff: reviewing staff requirements, engaging in recruiting activities, training and scheduling 
personnel, and mentoring and assisting employees. These job responsibilities are not consistent with 
the claim that the Beneficiary did not manage personnel and instead managed an essential function. 
The foreign entity's organizational chart also depicts the Beneficiary as a manager of personnel rather 
than the manager of an essential function in that it depicts the Beneficiary as overseeing an office 
manager and two drivers. Despite claiming that the office manager has a bachelor's degree, the 
Petitioner did not establish that such a degree was necessary to carry out the duties assigned to that 
4 
position and it did not claim that the two drivers assumed professional positions. 4 Therefore, as 
indicated in the denial, the Petitioner has not established that the Beneficiary managed a staff that was 
comprised of professional employees. 
Further, with regard to the Petitioner's interpretation of Congress's omission of certain language from 
the Immigration Act of 1990, the Petitioner does not reference a precedent decision to support its 
interpretation, which is contrary to existing precedent, which states that an employee who primarily 
performs the tasks necessary to produce a product or to provide a service is not considered to be 
employed in a managerial or executive capacity. Matter of Church Scientology Int 'I, 19 I&N Dec. 
593, 604 (Comm'r 1988). Despite the changes made by the Immigration Act of 1990, the statute 
continues to require that an individual "primarily" perform managerial duties in order for a position to 
be deemed as being in a managerial capacity. Where an individual primarily performs the tasks 
necessary to produce a product or to provide a service, that individual cannot also "primarily" perform 
managerial or executive duties. The Petitioner has not submitted evidence, such as congressional 
reports, case law, or other documentation, to support its contention. 
In light of the deficiencies described above, the Petitioner has not established that the Beneficiary was 
employed abroad in a managerial capacity. 
III. DOING BUSINESS IN THE UNITED STATES FOR ONE YEAR 
In addition, while not addressed in the Director's decision, we find that the Petitioner did not provide 
sufficient evidence to demonstrate that it had been doing business for one year prior to filing this 
petition. 8 C.F.R. § 204.5(i)(3)(i)(D). The term doing business is defined as the regular, systematic, 
and continuous provision of goods and/or services and does not include the mere presence of an agent 
or office. 8 C.F.R. § 204.5(i)(2). 
The Petitioner must establish that it had been doing business for at least one year prior to filing its 
petition. In this instance, the petition was filed on October 5, 2017. Therefore, in order to qualify for 
the benefit sought in this matter, the Petitioner must establish that it had been doing business as of 
October 5, 2016. Although the record contains a lease agreement dated October 1, 2016, the 
Petitioner's certificate of incorporation shows that it was not incorporated until October 14, 2016, its 
Articles of Incorporation was not executed nor was its stock certificate issued until October 16, 2016, 
and it was not issued a business license until April 2017. Given these critical dates, it appears that the 
Petitioner did not exist as a corporate entity and was not licensed to conduct business as of October 5, 
2016. It is also worth noting that the Petitioner's earliest bank statement on record is for a 12-day 
4 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate positions 
require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) (defining 
"profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation"). Section 10l(a)(32) of the Act, states that "[t]he term profession shall include 
but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academies, or seminaries." 
5 
period - from October 19, 2016 to October 31, 2016 - during which the only recorded transaction was 
for a deposit of $100. 
In light of the above, we find that the Petitioner has not established that it commenced doing business 
as of October 5, 2016, and therefore it could not have been doing business for one full year prior to 
the date this petition was filed. 
IV. QUALIFYING RELATIONSHIP 
Finally, the Petitioner did not provide sufficient evidence to support the claim that it andD 
I lthe Beneficiary's foreign employer, have a qualifying relationship. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show that 
the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e., one 
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally 
section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
The Petitioner states that it and the foreign entity are affiliates. In order to establish an affiliate 
relationship, the Petitioner must demonstrate that its ownership scheme fits one of two scenarios: 
(1) the Petitioner and the foreign entity are subsidiaries that are owned and controlled by the same 
individual or parent entity; or (2) the Petitioner and the foreign entity are two legal entities that are 
owned and controlled by the same group of individuals with each individual owning and controlling 
approximately the same share or proportion of each entity. 8 C.F.R. § 204.5(j)(2). The Petitioner's 
claim rests on the first scenario where the same individual -I I - is claimed to be the 
common majority owner of both entities. 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Church Scientology Int'!, 19 I&N Dec. 593; Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). Ownership refers to the direct 
or indirect legal right of possession of the assets of an entity with full power and authority to control; 
control means the direct or indirect legal right and authority to direct the establishment, management, 
and operations of an entity. Matter of Church Scientology Int'!, 19 I&N Dec. at 595. 
In the present matter the Petitioner's claim regarding its ownership, while corroborated in its 2016 and 
2017 tax returns, is inconsistent with the Beneficiary's state issued cosmetology license, which 
identifies the Beneficiary as the Petitioner's owner. The Petitioner must resolve this inconsistency in 
6 
the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
In light of the inconsistent evidence regarding the Petitioner's ownership, we find that the Petitioner 
has not established that it and the foreign entity are commonly owned. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 
ORDER: The appeal is dismissed. 
7