dismissed EB-1C Case: Beauty Services

(b)(6)
DATE: .APR 0 1 2014 
INRE: Petitioner: 
Beneficiary : 
OFFICE : TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
SELF-REPRESENTED: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case . 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~~ j- Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center , denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner filed a Form I-140, Immigrant Petition for Alien Worker, to classify the beneficiary 
as an employment-based immigrant pursuant to section 203(b )(1 )(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. The 
petitioner is a Florida limited liability company that claims to be a subsidiary of 
_ the beneficiary's former foreign employer located in Mexico. The 
petitioner operates a tanning and beauty salon and seeks to employ the beneficiary as its "manager 
executive." 
On August 21, 2013, the director denied the petition concluding that the petitioner failed to 
establish: (1) that it has a qualifying relationship with the foreign entity; (2) that it would employ 
the beneficiary in a qualifying managerial or executive capacity; and (3) that it has the ability to pay 
the beneficiary the proffered wage. The director further found that the petitioner failed to establish 
that the beneficiary was employed abroad for at least one year by the parent, affiliate or subsidiary 
of the petitioner, as required by 8 C.F.R. § 204.5G)(3)(i)(B). This finding was based on the 
petitioner's failure to establish its qualifying 
relationship with the beneficiary's employer in Mexico. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director 
erred in determining that the beneficiary would not be employed in a qualifying managerial or 
executive capacity. Specifically, the petitioner states that the petitioner submitted a detailed 
description of the beneficiary's duties which supports a finding that the beneficiary "can easily be 
deemed a functional manager." The petitioner does not directly address its qualifying relationship 
with the foreign entity or its ability to pay the beneficiary's proffered salary. 
I. THE LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding 
the time of the alien's application for classification and admission into 
the United States under this subparagraph, has been employed for at 
least 1 year by a firm or corporation or other legal entity or an affiliate 
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or subsidiary thereof and who seeks to enter the United States in order 
to continue to render services to the same employer or to a subsidiary 
or affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form I-140, Immigrant Petition for Alien Worker, 
for classification of an alien under section 203(b)(l)(C) of the Act as a multinational executive or 
manager. No labor certification is required for this classification. The prospective employer in the 
United States must furnish a job offer in the form of a statement which indicates that the alien is to 
be employed in the United States in a managerial or executive capacity. Such a statement must 
clearly describe the duties to be performed by the alien. 
Additionally, the regulations at 8 C.F.R. § 204.5(j)(3)(i) state that the petitioner must provide the 
following evidence in support of the petition in order to establish eligibility: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by a 
firm or corporation, or other legal entity, or by an affiliate or subsidiary of 
such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by 
which the alien was employed overseas, in the three years preceding entry as 
a nonimmigrant, the alien was employed by the entity abroad for at least one 
year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which 
the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at least 
one year. 
II. QUALIFYING RELATIONSHIP 
The first issue to be addressed is whether the petitioner has established that it has a qualifying 
relationship with the foreign entity, - ' _ · · T To establish 
a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
(b)(6)
NON-PRECEDENTDEC~ION 
Page4 
beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. 
entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 
§ 203(b)(1)(C) of the Act, 8 U.S.C. § 1153(b)(1)(C); see also 8 C.F.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
A. Facts 
In a letter accompanying the Form I-140, the petitioner claimed to be a subsidiary of 
_ ------~-- . The petitioner is engaged 
in the tanning and beauty business and refers to the foreign entity as its "headquarters." 
The petitioner submitted evidence that it filed its articles of organization with the Florida Secretary 
of State on December 9, 2010 identifying _ J • - - -as its managing members. 
The petitioner's 2012 limited liability company Annual Report dated January 17, 2012 indicates that 
its managingmembers are and the beneficiary. 
The petitioner also submitted a ten-page Spanish language document that appears to be the Mexican 
company's articles of incorporation. The document is followed by what appears to be a two page 
summarized English translation. No certification of translation was attached. 
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Page 5 
The director issued a Request for Evidence (RFE) dated March 13, 2013. The RFE asked for "the 
petitioner's Articles of Incorporation, the Operating Agreement (OA), meeting minutes, or other 
documentation that establishes ownership or control." Further, the director recognized that the 
petitioner already provided the Mexican company's articles of incorporation but did not include a 
certified English translation. The director advised the petitioner that "[i[f any document is in a 
foreign language, then it must be submitted along with a certified English translation." 
In response to the RFE, the petitioner stated that it submitted corporation information for the foreign 
entity and documents to demonstrate the qualifying relationship. The petitioner provided a copy of 
its articles of organization, but no operating agreement or meeting minutes. The petitioner's 
response included a copy of its Internal Revenue Service (IRS) Form 1065 U.S. Return of 
Partnership Income for 2011 and 2012. These documents indicate that the company has two 
members: ~ · ·· ·· and the beneficiary. The petitioner also provided IRS Form 8308 Report 
of a Sale or Exchange of Certain Partnership Interests to document the transfer in membership 
interest from to the beneficiary on May 23, 2011. 
Regarding the foreign entity, the petitioner submitted a one-page English language document titled 
, • A Florida Notary Public affixed her seal and signed her 
name under the statement: "1, hereby certify that the text appearing above is accurate translation of 
an original birth certificate in Spanish and that I am competent in both English and Spanish to 
render such translation." The document was dated June 6, 2013. Despite the notary public's 
certification that the document contains a translation of an original birth certificate in Spanish, the 
document contains the foreign company's name, date and place of creation, and "names of 
associates," and is accompanied by the previously submitted 10-page corporate document for the 
foreign entity. This translated document contains the following information regarding the foreign 
entity: 
Name ofthe Associates 
[The beneficiary] 25 of Action 
25 of Action 
The director denied the petition, noting that the petitioner failed to submit the evidence requested in 
the RFE. The director found that the evidence of record did not support the petitioner's claim of a 
qualifying relationship with the foreign entity. 
B. Analysis 
Upon review, the petitioner has not established that it has a qualifying relationship with the foreign 
entity. 
As general evidence of a petitioner's claimed qualifying relationship, a certificate of formation or 
organization of a limited liability company (LLC) alone is not sufficient to establish ownership or 
control of an LLC. LLCs are generally obligated by the jurisdiction of formation to maintain 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 6 
records identifying members by name, address, and percentage of ownership and written statements 
of the contributions made by each member, the times at which additional contributions are to be 
made, events requiring the dissolution of the limited liability company, and the dates on which each 
member became a member. These membership records, along with the LLC's operating agreement, 
certificates of membership interest, and minutes of membership and management meetings, must be 
examined to determine the total number of members, the percentage of each member's ownership 
interest, the appointment of managers, and the degree of control ceded to the managers by the 
members. Additionally, a petitioning company must disclose all agreements relating to the voting 
of interests, the distribution of profit, the management and direction of the entity, and any other 
factor affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N 
Dec. 362 (BIA 1986). Without full disclosure of all relevant documents, USCIS is unable to 
determine the elements of ownership and control. 
The petitioner claimed that it was a subsidiary of the foreign entity but failed to present any 
evidence that the foreign entity has an ownership interest in the U.S. company. 
In fact, the petitioner's evidence contradicts its claim that it is a subsidiary of the foreign entity. 
The limited evidence submitted suggests that the petitioner is actually owned by and 
the beneficiary in equal shares, rather than by the foreign company. Despite the director's RFE, the 
petitioner failed to provide additional evidence such as its operating agreement, certificates of 
membership, meeting minutes or any corporate documents to support its claim that it is a subsidiary 
of the foreign entity. 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). 
The petitioner submitted evidence relating to the foreign entity, however, none of the documents 
submitted are sufficient to meet the petitioner's burden of proof. The petitioner's summarized 
English translation of the foreign entity's Spanish-language articles of incorporation is insufficient. 
The regulations require that any document submitted to USCIS containing a foreign language shall 
be accompanied by a full English language translation which the translator has certified as complete 
and accurate, and by the translator's certification that he or she is competent to translate from the 
foreign language into English. 8 C.F.R. § 103.2(b)(3). The submitted summary translations do not 
meet these requirements and therefore will not be given any weight in this proceeding. 
While the petitioner also provided a notarized document but it· is unclear what the document was 
intended to show as the notary/translator indicated that she made the translation based on a birth 
certificate. The evidence presented regarding the foreign entity suggests that the petitioner may 
have been attempting to demonstrate that the two companies are affiliated based on the beneficiary's 
ownership. However, the petitioner did not assert this claim and the evidence does not support that 
relationship due to the deficiencies addressed above. Even if the documents regarding the foreign 
company were considered as probative, additional evidence would be required to establish that the 
beneficiary has a controlling interest in both the petitioning company and the foreign entity. 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 7 
Finally, despite the director's conclusion that the petitiOner failed to establish a qualifying 
relationship, the petitioner offered no relevant evidence or argument on appeal challenging the 
decision. 
For the reasons discussed above, the AAO finds that the evidence submitted does not establish that 
the petitioner has a qualifying 
relationship with the foreign employer. Accordingly, the appeal will 
be dismissed. 
III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The second issue the director addressed was whether the petitioner established that it would employ 
the beneficiary in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an 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 
managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A frrst-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. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
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NON-PRECEDENT DECISION 
(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. 
A. Facts 
The petitioner stated on the Form I-140 that it operates a tanning and beauty salon with eight 
employees. In a letter submitted in support of the petition, the petitioner stated that the beneficiary's 
role as manager executive would include the following duties: 
[The beneficiary] will be continuing evaluating and reviewing the marketing 
strategies and customer service products of beauty and tanning services worldwide. 
She will then modify these services and develop new services and products and 
recommend to the [foreign entity] headquarters the appropriate service and or 
products not in use by that organization .... 
In the area of human resources management, [the beneficiary] exercise authority in 
regard to hiring, firing, training, delegation of assignments according to capabilities, 
preferences and technical goals, discipline, promotions and remuneration. She 
conducts performance reviews and ensures that her staff followed corporate 
procedures. 
Functioning autonomously, [the beneficiary] is responsible for managing and 
directing all development activities of [the petitioner] as they pertain to our 
international operations. [The beneficiary] routinely meets with our headquarters' 
directors from the international units to ensure that our corporate philosophy is 
understood and is being delivery [sic] accurately ... 
In sum, [the beneficiary] has autonomous control and exercises wide latitude and 
discretionary decision making in, establishing the most advantageous courses of 
action for the successful management and direction of our international activities. 
The petitioner provided three Internal Revenue Service (IRS) Form 941 Employer's Quarterly 
Federal Tax Returns for 2012. According to these documents, the petitioner had three employees in 
the first quarter, two employees in the second quarter, and one employee during the third quarter. 
The petition was filed during the fourth quarter of2012. 
(b)(6)
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Page 9 
The petitioner's most recent Florida Employer's Quarterly Report, for the third quarter of 2012, 
indicated that the company had 0 employees in July, two employees in August, and one employee 
in September. The employees who received wages during the quarter were the beneficiary ($1 ,250) 
and $3,998.1 0). 
In the RFE, the director requested additional evidence relating to the beneficiary's claimed 
managerial or executive role, including: a detailed duty description with the percentage of time 
spent on specific tasks; an organizational chart; and detailed information regarding the petitioner's 
employees including evidence of wages paid to employees. The director also directed the petitioner 
to provided information regarding contract workers if applicable. 
In response to the RFE the petitioner provided the following position description , including the 
percentage of time the beneficiary allocates to the listed duties on a weekly basis: 
Perform the management required to achieve the development of the company, 
according to plans and programs set up, taking into account the profiles that are 
within the Organization, the characteristics of the environment and the internal 
conditions of the company . 25% 
Ensure the efficient utilization of resources , technical , financial and talent of the 
entity and the fulfillment of goals and programs approved by the Board of Directors. 
Give instructions on the development of each of the charges to all employees of the 
company, coordinating and guiding processes , and ensuring compliance with them. 
Lead and ensure full compliance with the administrative process in each of the levels 
of administration and op[ e ]ration of the business . 20% 
Exercise supervision and control on administrative, operational, reception and Office 
units, programs and projects ofthe business. 20% 
Analyze results newspapers and the operational and financial scope of the trading 
company statistics; evaluating them with functional managers of each area. 2% 
Inform the Board about the situation and evolution of the company, through the 
account of results, comparison and deviations with the budget, etc. 2% 
Submitting to the Board of partners the draft budget of income and expenditure of 
the trading company to run it once to be issued by such entity. 2% 
Participate and advise managers in making important decisions. 2% 
Define and track the quality policy of the company . 2% 
Make appropriate decisions define a human resource policy. 2% 
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Sign contracts and agreements with customers and suppliers, issue acts which are 
necessary for the fulfillment of the objectives of the trading company covered by 
existing legal provisions. 1% 
Promoting the adaptation and adoption of standards aimed at improving the quality 
and efficiency in the provision of services models and techniques. 5% 
Lead starting up of an information system that supports the management of the 
company in their reception and dispatch, technical and administrative processes. 5% 
Apply disciplinary sanctions that correspond by law or regulation. Issue functions, 
requirements and administrative procedures manuals. 1% 
Review of official procedures and cost control. 1% 
Develop objectives, strategies leading to improve working conditions, organizational 
climate, occupational health and the level of trading, and in particular to execute a 
process of continuing education for all staff of the entity. 5% 
Direct and encourage national and international trade relations of the marketer. 5% 
The petitioner also provided an undated organizational chart that depicted eleven (11) employees 
with the beneficiary in the senior position as "manager member." Directly subordinate to the 
beneficiary is a manager, ~ The chart indicates that all other employees report to the 
manager and include: (1) a marketing and public relations employee (. ; (2) a 
sales/front desk employee ( four therapists 
~ . ,; and three cleaning staff 
Ibanez). 
The petitioner provided a brief duty summary for each position as follows: 
1. MANAGING MEMBER- Responsible ofthe give direction [sic] to the Manager 
for the daily operation and to expand the organization, trying to be all the time 
upgraded with all the new techniques on all of our services that we offer. 
2. MANAGER - Responsible of the daily operations and to apply all the strategies 
that the team analyze [sic] with the Manager Member. 
3. MARKETING & P.R.- Responsible to do action plans to put on practice all the 
Marketing & Public Relations strategies, with the main purpose; sending new 
public to [the petitioner]. 
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4. SALES/FRONT DESK - Responsible to sale to the public all the services that 
[the petitioner] offer[s], to share and explain with them the promotions that we 
have, and to make the appointments for the treatments. 
5. THERAPIST - Responsible to give to the client the different services that [the 
petitioner] offers. 
6. CLEANNING [sic] -Responsible to keep clean at any moment all the different 
areas of [the petitioner]. 
In support of the director's request regarding pay documentation, the petitioner submitted its IRS 
Form 941 for the fourth quarter of2012 indicating that the petitioner had one employee. 
The petitioner also provided copies of its IRS Forms 1096, Annual Summary and Transmittal of 
U.S. Information Returns, indicating that the petitioner paid a total of $82,506.30 on 11 IRS Forms 
1099, Miscellaneous Income, in 2012. The petitioner submitted copies of all 11 IRS Form 1099-
MISC statements for nonemployee compensation paid during 2012. The petitioner also indicated 
that three employees, including and a third individual not named on the 
organizational chart received IRS Form W-2s in 2012, but it did not provide copies of these 
documents. 
Overall, seven of the individuals identified on the organizational chart received a 2012 IRS Form 
1099. These employees included: all three cleaners (who earned between $4,000 and $5,640); the 
manager ($6,727); the sales/front desk employee ($16,459); and three therapists (who earned 
$7,475, 
$7,812, and $15,300, respectively). The petitioner submitted valid licenses for the manager 
and one of the therapists listed on the chart, as well as expired credentials for a second therapist. 
The petitioner provided no evidence of wages or other payments to the marketing and public 
relations employee or to one of the therapists identified on the chart. 
The petitioner also submitted a business plan dated May 2013 in which it stated that it currently had 
9 employees including one manager, three therapists, three front desk personnel, and two cleaning 
staff. 
The director reviewed the petition and concluded that the petitioner did not establish that the 
beneficiary would be employed in a qualifying managerial or executive capacity. In denying the 
petition, the director found that the beneficiary's duties were described in overly general terms, and 
further observed that the beneficiary has limited subordinate staffto relieve her from involvement in 
the day-to-day operational activities of the company. 
On appeal, the petitioner asserts that the beneficiary will be employed in a qualifying capacity and 
that she has subordinate employees who are professionals. The petitioner further asserts that the 
beneficiary does not perform tasks to produce the company product or provide company services · 
(b)(6)
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Page 12 
but that the beneficiary's duties "are related directly to managing a maJor component of the 
petitioner's business." 
B. Analysis 
Upon review, the petitioner has not established that it will employ the beneficiary in a qualifying 
managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's 
description of the job duties. See 8 C.P.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.P.R. § 204.5(j)(5). The AAO 
reviews the totality of the record, which includes not only the beneficiary's job description, but also 
takes into account the nature of the petitioner's business, the employment and remuneration of other 
employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
In this matter, the petitioner responded to the director's RFE with a lengthy job description; 
however, the description was vague and fails to give insight into how the beneficiary would spend 
her day. For example, the petitioner indicates that 25% of the beneficiary's day will be spent in the 
"development of the company" but offered no details regarding what specific tasks the beneficiary 
would perform within the scope of this responsibility. The duty description further refers to the 
beneficiary's complex supervision over "administrative, operational, reception and Office units, 
"evaluating company information "with functional managers of each area," and "advis[ing] 
managers" despite the fact that the petitioner failed to establish the existence of such a complex 
organization. The petitioner indicated that the beneficiary will allocate 20 percent of her time to 
"lead and ensure full compliance with the administrative process in each of the levels of 
administration and op[ e ]ration of the business," but again, offered no examples of specific tasks the 
beneficiary performs to carry out this responsibility. Overall, the petitioner indicates that these 
overly broad duties account for 65% of the beneficiary's time. 
Therefore, the AAO concurs with the director's observation that the beneficiary's duty description is 
too vague and general to establish that she will primarily perfom1 qualifying duties. Further, it fails 
to correlate in any meaningful way to the actual nature of the organization presented in this petition, 
that is a tanning and beauty business staffed by part-time therapists, cleaning staff, a front desk 
employee and one subordinate supervisor. The duties the petitioner did list were broadly described 
and provided little insight into what the beneficiary was to do on a day-to-day basis within the 
context of this business and its current organizational structure. 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 (E.D.N.Y. 1989), ajj'd, 905 F.2d 41 (2d. Cir. 1990). 
(b)(6)
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Page 13 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must 
show that the beneficiary performs the high-level responsibilities that are specified in the 
definitions. Second, the petitioner must prove that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority of his or her time on day-to-day functions. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991) . 
. While the beneficiary likely exercises the appropriate level of discretionary decision-making over 
the business as a managing member, the petitioner has not established the nature of her day-to-day 
duties, such that they could be deemed to be primarily managerial or executive in nature. Reciting 
the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has 
failed to provide any detail or explanation of the beneficiary's activities in the course of her daily 
routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. at 1108, affd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner also failed to clearly establish the number of employees and/or contract workers it 
had on staff at the time the petition was filed. The petitioner claimed eight employees on its Form 
1-140, however, its undated organizational chart depicted 11 employees, and its IRS Form 941 for 
the relevant quarter of 2012 indicated that it had one employee at the time of filing. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). 
It appears that the petitioner may have counted its contractors as its employees in that it submitted 
11 Form 1 099-MISC indicating it hired contractors to support its business at some point during 
2012. This does not resolve the inconsistency above. Notably, the 11 employees on the 
organizational chart do not mirror the individuals who received 1099-MISC forms for 2012. The 
petitioner has not established which contractors or employees were actually on staff or working for 
the company as of December 2012 when the petition was filed, and most of the payments made to 
contractors were not consistent with full-time employment for a full calendar year. 
Moreover, the petitioner has not established that its manager was working on a full-time basis and 
therefore, it is not clear to what extent this employee would relieve the beneficiary from supervising 
the lower-level employees. The petitioner has not established that it actually employs the claimed 
marketing and public relations employee and has not established who was responsible for 
performing these duties when the petition was filed. Further, the petitioner has not established that 
it had any administrative staff in place to perform duties such as purchasing supplies, performing 
routine bookkeeping and banking duties, or other tasks associated with operating the company's 
salon. The petitioner did not explain how the company's largely part-time contract staff would 
relieve the beneficiary from performing a number of non-qualifying duties associated with 
operating the petitioner's business. 
(b)(6) NON-PRECEDENT DECISION 
Page 14 
The statutory definition of "managerial capacity" allows for both "personnel managers" and a 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) 
and (ii). Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. Contrary to the common understanding of the 
word "manager," the statute plainly states that 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." Section 101(a)(44)(A)(iv) 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. Section 
101 (a)( 44)(A)(iii). 
The petitioner indicates that the beneficiary supervises one subordinate manager who appears to 
work on a part-time basis. This individual is also licensed to provide the petitioner's cosmetology 
services, which raises questions regarding the scope of her supervisory responsibilities. The 
petitioner simply indicates the manager is "responsible of the daily operations," and it is unclear 
whether she can be deemed a managerial or supervisory employee. 
The petitioner further asserts that the beneficiary's subordinates are professionals. In evaluating 
whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 101(a)(32) of the Act, 8 U.S. C. § 1101(a)(32), 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." The term "profession" 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained 
by a prolonged course of specialized instruction and study of at least baccalaureate level, which is a 
realistic prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 
(Comm'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 
(D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the 
degree held by subordinate employee. The possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a 
professional capacity as that term is defined above. In the instant case, the petitioner has presented 
some evidence of licenses and qualifications held by some employees, but it has not established that 
a bachelor's degree is necessary to perform the personal services offered by the business. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter ofSo.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998). 
Further, the petitioner claims for the first time on appeal that the beneficiary "can easily be deemed 
a functional manager," and states that she manages "a major component of the petitioner's 
business." The term "function manager" applies generally when a beneficiary does not 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, 8 U.S.C. § 
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110l(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a 
written job offer that clearly describes the duties to be performed in managing the essential 
function, i.e. identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential 
function. See 8 C.F.R. § 204.5(j)(5). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the 
duties related to the function. 
The petitioner has not adequately articulated or supported a claim that the beneficiary would be 
employed as a function manager. It has not identified which function or "major component" of the 
petitioner's business the beneficiary manages, nor has it provided the required detailed description 
of the beneficiary's duties or the amount of time she allocates to managing the claimed function. 
In sum, the petitioner has submitted an inadequate description of the beneficiary's duties and 
insufficient evidence of its organizational structure. Accordingly, the petitioner has not established 
that the beneficiary will be employed in a primarily managerial or executive capacity, as required 
by section 203(b)(l)(C) of the Act, and for this additional reason the appeal will be dismissed. 
IV. ABILITY TO PAY 
The next issue to be addressed is whether the petitioner has established that it has the ability to pay 
the beneficiary the proffered wage of $65,000 per year. 
8 C.F.R. § 204.5(g)(2) states: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the 
ability to pay the proffered wage. The petitioner must demonstrate this ability at 
the time the priority date is established and continuing until the beneficiary 
obtains lawful permanent residence. Evidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited financial 
statements. In a case where the prospective United States employer employs 100 
or more workers, the director may accept a statement from a financial officer of 
the organization which establishes the prospective employer's ability to pay the 
proffered wage. In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by the Service. 
The director found that the petitioner failed to provide evidence that it currently employs the 
beneficiary at the proffered wage, noting that the record contained one pay stub indicating the 
beneficiary's year-to-date salary as $1,250 as of August 31, 2012. The director further determined 
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Page 16 
that the petitioner reported insufficient net income or net current assets on its 2012 IRS Form 1065 
U.S. Return ofPartnership Income to pay the beneficiary's proffered wage of $65,000. Rather the 
petitioner reported a 
net loss of$333,710 and net current assets of -$70,600. 
The petitioner does not object to the director's conclusion or otherwise address this issue on appeal. 
Accordingly, the AAO will affirm the denial of the petition for the reasons stated in the director's 
decision and dismiss the appeal. 
V. EMPLOYMENT ABROAD 
The fourth and final issue addressed by the director is whether the petitioner established that the 
beneficiary was employed by a qualifying entity abroad, specifically, the petitioner or its parent, 
affiliate or subsidiary, for one full year in the three years preceding the filing of the petition. This 
finding was based on the director's determination that the petitioner failed to establish that it has a 
qualifying relationship with the foreign entity. The director did not address whether the 
beneficiary's employment abroad was in a qualifying managerial or executive capacity. 
As discussed above, the petitioner has not established its qualifying relationship with the foreign 
entity, and therefore, the director's determination with respect to the beneficiary's one year of 
employment with a qualifying entity abroad will be affirmed. The petitioner has not addressed this 
issue on appeal. 
Further, although not directly addressed by the director, the AAO finds insufficient evidence that 
the beneficiary's employment with the Mexican entity was within a qualifying managerial or 
executive capacity. 8 C.F.R. § 204.5G)(3)(i)(B). 
The petitioner's duty description for the beneficiary's employment abroad was brief and overly 
vague. The petitioner simply stated that the beneficiary's role as executive manager for the 
petitioner was "[b]ased on her critical experience acquired through having managed and supported 
functions as well as her acumen and managerial skill demonstrated during her tenure with our 
headquarters in Mexico, [the beneficiary's] ." Therefore, the director issued a request for evidence 
(RFE) requesting information about the beneficiary's work for the foreign entity, specifically her 
position title, all specific daily duties, the percentage of time spent on each of those duties, and an 
organizational chart showing the employees who reported to the beneficiary along with the 
employees' duty descriptions and education requirements. 
In response to the director's requests for additional documentation relating to the beneficiary's duties 
abroad, the petitioner stated "[t]he beneficiary's duties in the company abroad included dealing with 
multinational tasks as a manager whose objectives includes supervising the functions of the 
company and making decisions for the greater good of the company." The petitioner submitted an 
undated organizational chart identifying the foreign entity's positions and assigned employees. The 
chart depicted the beneficiary as vice president, supervising an administrative director, a sales 
manager and an operation director. However, the petitioner provided no additional details regarding 
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Page 17 
the foreign entity's staffing, the beneficiary's duties, or the duties performed by her subordinate 
employees. 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). The evidence of record provides no 
insight into the beneficiary's role with the foreign entity or any explanation of the nature of her 
actual duties. As such, the petitioner has not established that the beneficiary's role with the foreign 
entity in a qualifying managerial or executive capacity. For this additional reason, the petition 
cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001 ), affd. 345 F .3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 3 81 F .3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
VI. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.