dismissed EB-1C Case: Beauty Supply

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-T- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 25.2016 
PETITION: FORM 1-140 IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an importer of beauty supplies, seeks to permanently employ the Beneficiary .. seeks to 
permanently employ the Beneficiary as its President under the first preference immigrant 
classification for multinational executives or managers. See Immigration and Nationality Act (the 
Act) § 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified f()reign employee to the United States to work in an executive or 
managerial capacity. 
The Director, Texas Service Center. denied the petition. The Director determined that the evidence 
of record did not establish: (1) that the Beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity: or (2) that the Beneficiary was employed by a 
qualifying foreign entity in a managerial or executive capacity for at least one year in the three years 
preceding his entry to the United States as a nonimmigrant. 
The matter is now before us on appeal. In its appeaL the Petitioner submits a brief and copies of 
supporting documents and asserts that the Director's conclusion was based on an incorrect 
interpretation of the law. 
Upon de novo review. we will dismiss the appeal. 
I. LAW 
A U.S. employer may file a petition on Form 1-140, Immigrant Petition for Alien Worker. tor 
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. 
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): 
Matter ofF- T- Inc. 
(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 tor at least 1 year by a firm or corporation or other legal entity or an affiliate 
or subsidiary thereof and the alien 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 only to those executives and managers 
who have previously worked tor 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 tor the same entity, or its affiliate or 
subsidiary. 
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 beneficiary. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY IN THE UNITED 
STATES 
The first issue addressed by the Director was whether the Petitioner established that the Beneficiary 
will be employed in the United States in a qualifying managerial or executive capacity. 
Section 10l(a)(44) ofthe Act. 8 U.S.C. § 1101(a)(44). provides: 
(A) 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 
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Matter ofF- T- Inc. 
(iv) exercises discretion over the day-to-day 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 arc 
professional. 
(B) The term ··executive capacity"' means an 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 ofthe organization. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity. U.S. Citizenship and Immigration Services (USCIS) must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. Section 101 (a)( 44 )(C) of the Act. 
A. Evidence of Record 
The Petitioner filed the Form I-140 on April 14, 2014. The Petitioner stated on the petition that it 
operates a beauty supply import and export business with five employees. The record also contains 
a letter from the Petitioner stating that the Beneficiary is cunently serving as president of the U.S. 
entity and will continue to have the following responsibilities: 
• Creating. communicating and implementing the organization· s vision. mission, and 
overall direction. 
• Leading. guiding, directing. and evaluating the work of other executive leaders. 
• Soliciting advice and guidance. vvhen appropriate. from a Board of Directors. 
• Formulating and implementing the strategic plan that guides the direction of the 
business. 
• Forming. staffing. guiding, leading. and managing the organization to accomplish the 
strategic plan ofthe business. 
• Overseeing the complete operation of the Company in accordance with the 
established in the strategic plans [sic]. 
• Evaluating the success of the organization. 
Matter ofF- T- Inc. 
• Maintaining awareness of both the external and internal competitive landscape. 
opportunities for expansion. customers. markets. ne\v industry developments and 
standards. and so forth. 
• Represent the organization in civic and professional association responsibilities and 
activities in the local community. the state. and at the national level. 
The Petitioner also lists the following .. Duties: .. 
• Plan, develop. organize. implement, direct and evaluate the organization's fiscal 
function and performance. 
• Participate in the development of the corporation's plans and programs as a strategic 
partner. 
• Develop credibility for the finance group by providing timely and accurate analysis of 
budgets, financial reports and financial trends in order to assist the Board and senior 
executives in performing their responsibilities. 
• Enhance and/or develop, implement and enforce policies and procedures of the 
organization by way of systems that will improve the overall operation and 
effectiveness of the corporation. 
• Provide technical financial advice and knO\vledge to others within the financial 
discipline. 
• Continual improvement of the budgeting process through education of department 
managers on financial issues impacting their budgets. 
• Provide strategic financial input and leadership on decision making issues affecting 
the organization. 
• Optimize the handling of bank and deposit relationships and initiate appropriate 
strategies to enhance cash position. 
• Develop a reliable cash flow projection process and reporting mechanism. which 
includes minimum cash threshold to meet operating needs. 
• Evaluation ofthe finance division structure and team plan for continual improvement 
of the efficiency and effectiveness of the group as well as providing individuals \vith 
professional and personal growth with emphasis on opportunities (where possible) of 
individuals. 
The letter indicated that the Beneficiary spends his time as President as follO\vs: 
Planning and Analyzing 30% 
Supervision 30% 
External representation ofthe Company 30% 
Operational 1 0% 
The Petitioner submitted two ditTerent organizational charts. The first shO\vs the Beneficiary as 
President with three direct reports: an Administrative Assistant, Purchasing & Logistics Coordinator. 
and a Sales & Marketing Manager. The Sales & Marketing Manager is shown as having one direct 
4 
Matter ofF- T- Inc. 
report: the Warehouse & Otlice Manager. The second organizational chart shows a similar structure 
but also includes a ··Shipping & Receiving Expediter"' who reports to the Sales & Marketing 
Manager. The Petitioner also submitted IRS Form W-2 for 2012 for the Beneficiary and all of the 
individuals named on the two organizational charts. 
The Director issued an RFE and stated that the Petitioner had not submitted sufficient evidence to 
establish that the Beneficiary would be acting in a qualifying capacity. The Director instructed the 
Petitioner to submit additional evidence describing the Beneficiary's proposed position: as well as 
evidence documenting the Petitioner's employment of the claimed subordinate employees and a 
description of the jobs these subordinates perform. The Director also requested copies of the 
Petitioner's Form 941 Federal Quarterly Tax Report tor each quarter of 2013 and for the first t\vo 
quarters of2014. 
In response to the RFE, the Petitioner resubmitted the description of duties tor the proposed position. 
along \vith a revised organizational chart and a 2013 catalogue of products sold. The Petitioner also 
submitted W -2 Wage and Tax Statements for 2013 for the Beneficiary indicating that he earned 
$72,000, along with Form 941 Quarterly Income Tax Statements tor all quarters of2013 and the first 
and second quarter of 2014, which indicated that the Petitioner had five employees. 
On February 5. 2015, the Director denied the Petition stating in part. that the Petitioner did not 
demonstrate that the Beneficiary \Vould be employed in an executive capacity. The Director pointed 
specifically to the list of duties submitted by the Petitioner indicating that they \vere vague and did 
not convey an understanding of what the Beneficiary would actually be doing on a daily basis. 1 
On appeaL the Petitioner maintains that it has submitted sufficient evidence of the Beneficiary's 
employment in an executive capacity. 
B. Analysis 
Upon review. and for the reasons stated below, we find that the Petitioner has not established that the 
Beneficiary's proposed position \Vith the Petitioner is in a qualif)ring managerial or executive capacity. 
2 
In this case, the Petitioner does not assert that the Beneficiary will be employed in a managerial 
capacity; therefore we will restrict our analysis to whether or not the Beneficiary \Vill be serving in an 
executive capacity. 
l \Ve note that the Notice of Denial contains a list of responsibilities that are not reflected in the record. Therefore, we 
withdraw this portion of the Director"s decision and have evaluated the record based upon a de novo review of the entire 
record of proceedings, including the specific list of duties submitted by the Petitioner. 
-' The Director also took issue with whether or not the proposed employment would be fulltime. The Director notes that 
according to tax returns for 2009 through 2013. the Beneficiary indicates he spends 50% of his time working for the 
Petitioner. We do not consider this evidence inconsistent with the proffered employment and do not consider the 
Beneficiary's past employment with the Petitioner indicative of his future employment. if the petition in question was 
granted. 
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Matter ofF- T- Inc. 
The definitions of managerial and executive capacity each have t\vo parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (table). Second. the Petitioner must prove that the Beneficiary 
will be primari(v engaged in managerial or executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. S'ee Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World. 940 F.2d 1533. 
The statutory definition of the term ··executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act, 8 U.S.C. §110l(a)(44)(B). Under the statute. a beneficiary must have the ability to ··direct the 
management" and '·establish the goals and policies·· of that organization. Inherent to the definition. 
the organization must have a subordinate level of managerial employees for the Beneficiary to direct 
and the Beneficiary must primarily focus on the broad goals and policies of the organization rather 
than the day-to-day operations of the enterprise. An individual vvill not be deemed an executive 
under the statute simply because they have an executive title or because they "direct" the enterprise 
as the owner or sole managerial employee. The Beneficiary must also exercise .. wide latitude in 
discretionary decision making" and ·'receive only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization:· /d. 
While the Petitioner submitted a long list of duties w·ith the initial submission, some of the duties 
themselves are vague. Duties such as .. [e]valuating the success ofthe organization, .. [p]articipate in 
the development of the corporation's plans and programs as a strategic partner," and '[e]nhance 
and/or develop, implement and enforce policies and procedures of the organization by vvay of 
systems that will improve the overall operation and effectiveness of the corporation" do not 
meaningfully describe the tasks to be performed by the Beneficiary on a daily basis, nor do they 
provide insight into the Beneficiary's work as it relates to the Petitioner"s specific business model. 
Specifics are clearly an important indication of w·hether 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), 
a.ff"d, 905 F .2d 41 (2d. Cir. 1990 ). 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 actual duties themselves will reveal the true nature of the 
employment. /d. 
Furthermore, the claimed responsibilities also include duties that appear incongruous \vith the stated 
organization and staffing structure. For example. one of the Beneficiary's proposed duties is, 
'·Leading, guiding, directing, and evaluating the work of other executive leaders... The record. 
however. does not contain evidence of these other executive leaders. The descriptions also indicate 
that the Beneficiary is tasked with '"evaluation of the finance division structure and team plan for 
continual improvement of the efficiency and effectiveness of the group as well as providing 
individuals with professional and personal growth with emphasis on opportunities where possible of 
individuals:· .. [ d]evelop credibility for the finance group by providing timely and accurate analysis 
Matter ofF- T- Inc. 
of budgets . . .:' and ''[p Jrovide technical financial advice and knowledge to others within the 
financial discipline.'' However. there is no finance group or division noted in the organizational 
charts and no subordinate employees have been identified as working .. within the financial 
discipline." The record does not specify who is included in the finance division or team and none of 
the subordinate positions appear to include finance; the only identified departments arc 
administrative, sales and marketing, purchasing and warehouse office manager. The inconsistencies 
noted raise some doubt as to the veracity of the job description presented. The Petitioner has not 
resolved these inconsistencies with independent objective evidence pointing to where the truth lies. 
See Matter (?f Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Absent further explanation or evidence, it 
does not appear that the information provided is an accurate representation of the Beneficiary's 
duties. 
Moreover, while the Petitioner assigned a percentage of time spent on four broad categories of 
duties, these categories appear to include both qualifying and non-qualifying tasks and 
responsibilities. As such, we are unable to determine whether the claimed executive duties 
constitute the Beneficiary's primary duties, or whether the Beneficiary will primarily perform non­
executive administrative or operational duties associated with the day-to-day operation of the 
business. The Petitioner's description of the Beneficiary's job duties does not establish what 
proportion of the Beneficiary's duties is executive in nature, and what proportion is actually non­
qualifying. See Republic (?f"Transkei v. llVS, 923 F.2d 175. 177 (D.C. Cir. 1991). 
Beyond the required description of the job duties, we review the totality of the record when 
examining whether a beneficiary is employed in a qualifying managerial or executive capacity. 
including the petitioner's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational 
duties. the nature of the petitioner's business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. Here. the Petitioner has also not 
established that it has sufficient staff to relieve the Beneficiary from performing the non-qualifying 
duties associated with running its business. The Petitioner operates an import/export business and 
has documented its employment of a four person subordinate staff identified on its organizational 
chart at the time of filing. Although requested by the Director, the Petitioner did not provide job 
duties for any subordinate staff members. Without information on the duties and responsibilities of 
the claimed subordinate statT, we cannot determine that the Beneficiary would be relieved from 
performing non-qualifying duties. such as general administrative, bookkeeping, customer service, 
sales, and purchasing tasks, that are associated with running a beauty supply import and export 
business. 
In this case, the Petitioner has not established that it has sufficient stafT to relieve the Beneficiary 
from performing non-qualifying duties. such that the Beneficiary would be primarily engaged in an 
executive capacity. The fact that the Beneficiary manages or directs a business does not necessarily 
establish eligibility for classification as a multinational manager or executive within the meaning of 
section 10l(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of 
(b)(6)
Matter ofF- T- Inc. 
a position be "primarily" of an executive or managerial nature. Sections 101(A)(44)(A) and (B) of 
the Act, 8 U.S.C. § 1101(a)(44). 
Accordingly, we find that the Petitioner has not established that the Beneficiary will be employed in 
the United States in a qualifying managerial or executive capacity. 
III. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
FOR AT LEAST ONE YEAR 
The Director also denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary was employed by a qualif)'ing entity in a managerial or executive capacity for at least 
one year. There are two parts to this analysis: (1) whether the Beneficiary had one year of 
employment abroad in the three years preceding his entry to the United States in nonimmigrant 
status, and (2) whether this employment was in a managerial or executive capacity. \Ve \viii take 
each part in turn. 
A. Employment for at least one year 
The regulation at 8 C.F.R. § 204.5(j) states: 
( 3) Initial evidence--
(i) Required evidence. A petition for a multinational executive or manager 
must be accompanied by a statement from an authorized official of the 
petitioning United States employer which demonstrates that: 
(B) If the alien is already in the United States \Vorking for the same employer 
or a subsidiary or atliliate 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; 
1. Evidence of Record 
As noted, the petition was filed on April 14, 2014. In the initial filing, the Petitioner asserted that the 
Beneficiary was employed abroad as the President of the '·foreign Mexican atliliate company: .. 
The Petitioner submitted an untranslated 
organizational chart for the entity listing the Beneficiary as .. Director General;" along \Vith what appears 
to be untranslated position descriptions for the foreign company. The Petitioner also submitted a copy 
of the Beneficiary's resume which states that he has been working as the ··General Director" of 
since 1995. The Petitioner further submitted incorporation 
documents for the and a "verification" from 1 
8 
(b)(6)
Matler ofF- T- Inc. 
, Certified Public Accountant, attesting that the foreign entity \vas incorporated on 
L__ ______ , m 1 Mexico. 
Regarding the Beneficiary's nonimmigrant status, the Petitioner submitted a copy of the Beneficiary's 
E-2 visa stamp in his passport, showing the Beneficiary's entry into the United States in E-2 
nonimmigrant status on or about November 19, 2008. 
The Director issued an RFE requesting. among other things. evidence documenting the Beneficiary was 
employed overseas by the foreign entity during the 
requisite timeframe. In response to the RFE, the 
Petitioner submitted a letter dated October 20, 2014, from the foreign entity stating that the 
Beneficiary had been employed as the Managing Director since 2008. The RFE response also 
included a duplicate of the organizational chart f(lr the foreign entity listing the Beneficiary as the 
'·Director General.'' 
The Director denied the petitiOn stating that the evidence regarding the foreign corporation· s 
incorporation and the Beneficiary's nonimmigrant history conflicted with the claimed dates of 
employment abroad for the Beneficiary. 
On appeaL the Petitioner asserts that the foreign entity was incorporated in and that the 
Director erred in relying upon a 2008 amendment to the Articles of Incorporation. The Petitioner 
maintains that the evidence in the record establishes that the Beneficiary has the requisite year of 
employment abroad. 
2. Analysis 
Upon review. we find that the Petitioner has not demonstrated that the Bene1iciary has the required 
one year of employment abroad. As noted, the Beneficiary must, in the 3 years preceding the time of 
the alien's application for classification and admission into the United States under this subparagraph, 
have been employed for at least one year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and must seek to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or atliliate thereof in a capacity that is managerial or executive. 
8 C.F.R. § 204.5(j). 
The Director examined the Beneficiary's employment abroad from the date of tiling of the petition, 
finding that the record did not establish that the Beneficiary was employed for one year by the 
foreign entity in the three years preceding the tiling of this petition on April 14, 2014. The Director 
based his findings largely on the fact that the Beneficiary has spent significant time in the United 
States in E-2 status since November 2008 and that tax documents report that the 
the Beneficiary had 
been devoting 50 percent of his time to the Petitioner from 2009 to present. The Director concluded 
that if the Beneficiary began employment with the foreign entity in 2008. entered the U.S. in E-2 
status in November 2008, and devoted 50 percent of his time to the Petitioner in each year since 
2009, that it was not clear when the Beneficiary would have been employed abroad by the foreign 
9 
(b)(6)
Matter ofF- T- Inc. 
entity for one year in the three years preceding the filing of this petition (between April 2011 and 
April2014). 
However, we note that as the Beneficiary has been in the United States in valid nonimmigrant status 
working for the Petitioner since November 2008 (or earlier), the Petitioner may show that the 
Beneficiary was employed abroad for one year in the three years preceding the Beneficiary's entry 
into the United States and not, as the Director stated, within the three years preceding the tiling of 
this petition. In analyzing whether or not the Beneficiary \vas employed for one year abroad by the 
foreign company between November 2005 and November 2008, we encounter t\vo sets of 
inconsistencies in the record that prevent us from determining the true facts of the Beneficiary's 
foreign employment. First, the date of incorporation of the foreign company has been inconsistently 
portrayed. In the initial petition, the Petitioner submitted the foreign entity's articles of 
incorporation and a letter from CPA attesting that the foreign entity was incorporated on 
. in Mexico. On appeal. the Petitioner asserts that the Director mistook 
an amendment to the foreign entity's articles of incorporation for the original articles of 
incorporation. The Petitioner resubmits the articles of incorporation, highlighting text that 
references the incorporation of the foreign entity in Upon review of the documents submitted, 
we tind that the foreign entity \vas, more likely than not, established 
in . rather than 
Nonetheless, the Petitioner must also resolve the inconsistencies regarding the Beneficiary's 
dates of 
employment abroad. The Beneficiary's resume reports that he has been employed abroad by the 
foreign entity since 1995; however, the letter from the foreign entity dated October 20, 2014, states 
that the Beneficiary has been employed by the toreign entity since 2008. If the Beneficiary did in 
fact commence employment with the foreign entity at some date in 2008 and he entered the United 
States in E-2 nonimmigrant status in November 2008, then \Ve cannot find that the Beneficiary has 
the required one year of employment abroad prior to his entry into the United States in 
nonimmigrant status. The Petitioner has not explained the discrepancy or resolved the 
inconsistencies present with independent objective evidence. Afalter l?l Ho. 19 I&~ Dec. 582, 591-
92 (BIA 1988). Moreover. the record lacks evidence such as employment records, payroll records. 
tax documents and/or dated organizational charts and corporate documents necessary to establish 
that the Beneficiary \Vas in fact employed by the foreign entity for any period of time. Simply going 
on record \vithout supporting documentary evidence is not sutricient tor the purpose of meeting the 
burden of proof in these proceedings. Matten?f'S<?ffici, 22 I&N Dec. 158, 165 (Comm. 1998). 
Based on the foregoing, the Petitioner has not established that the Beneficiary's was employed 
abroad with the foreign entity for the requisite period of time. 
B. Managerial or Executive Capacity Abroad 
I. Evidence of Record 
The record contains a letter dated October 20. 2014, in which a representative of the foreign entity 
stating that the Beneficiary has worked at the company 
10 
(b)(6)
Matter qf F- T- Inc. 
since 2008 as Managing Director and Legal Representative. The letter describes the 
Beneficiary's job duties as managing director as follows: 
• Managing the matter of administration of the entire company 
• Operating the multi-faceted tasks that a company has with great efficiency. 
• Setting and meeting of different targets that is highly necessary for the success of the 
company. 
• Ensuring that the routine requirements of the company are adequately fulfilled and on 
time. 
• Supervising of the annual accounts of the company. 
• Looking atler the health, safety. employment, tax and the business related matters of 
the company. 
• Supervising the accomplish of sales plan 
• Keeping the good relation with clients, partners and suppliers, 
verifying that contracts 
and agreements be fulfilled 
• Representation of the Company 
• Guarantee the best customer service. 
The Director issued an RFE requesting. in part, evidence documenting the Beneficiary's position in a 
managerial or executive capacity with the foreign entity. The Director requested a more detailed 
description of the Beneficiary's duties identifying the amount of time he allocates to specific tasks. 
as \veil as evidence of the number of employees supervised by the beneficiary. their position titles, 
their duties and their salaries. The Director also recommended that the Petitioner submit a detailed 
organizational chart or diagram clearly identifying 
the Beneficiary's position. 
In response to the RFE, the Petitioner submitted a statement explaining that ·'it is a commonly 
accepted business practice to allow· for a great latitude in work activity and responsibilities f()r top 
level Executives in flat line organizations as is the instant case. In these types of organizational 
structures the 'Directors' perform a wide variety of executive work that is ditlerent from more 
structured organizations or governmental agencies.'' The RFE response included an organizational 
chart for the foreign entity which is not translated along with many position descriptions which 
appear to relate to subordinates listed on the organizational chart. 
The Director denied the Petition, noting, in part. that the Petitioner had not submitted sufficient 
evidence identifying the Beneficiary's role as a manager or executive with the foreign entity. 
Specifically, the Director noted that the job description \Vas vague and did not identify specific tasks 
performed by the Beneficiary on a daily basis and that the Petitioner did not indicate the amount of 
time spent on each tasks or the educational levels of other employees. 
On appeal, the Petitioner contends that the Beneficiary's overseas position meets all four prongs of 
the regulatory requirements for a manager. The Petitioner disputes the Director's finding that the job 
description lacked detail. 
11 
Matter ofF- T- Inc. 
2. Analysis 
Upon review, and for the reasons stated below. we find that the Petitioner has not established that the 
Beneficiary's position abroad was in a qualifying managerial or executive capacity. 
As noted above. the Petitioner's description of the job duties must clearly describe the duties to be 
performed by the Beneficiary and indicate whether such duties are either in an executive or 
managerial capacity. See 8 C.F.R. § 204.50)(5). A detailed job description is cruciaL as the duties 
themselves will reveal the true nature of the beneficiary's employment. 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). When 
examining the job duties, we will consider this information in light of other relevant factors. 
including (but not limited to) job descriptions of the Beneficiary's subordinate employees, the nature 
of the business conducted, and any other facts that may contribute to a comprehensive understanding 
of the Beneficiary's actual duties and role in a petitioner's organizational hierarchy. 
Here, the Petitioner has stated that the Beneficiary was the managing director of the foreign entity 
with responsibility for the overall operation of the company. The Beneficiary's duties. however, are 
vague and do not include percentages of time devoted to each duty. The broad duties listed include 
duties such as '·[m]anaging the administration ofthe entire company," ·'[o]perating the multi-faceted 
tasks that the company has with great efficiency,'' '·[g]uarantee the best customer service ... 
"[r]epresentation of the company,'' and •·ensuring that the routine requirements of the company are 
adequately fulfilled.'' These are general statements that shed little light on the actual tasks that the 
Beneficiary performed in his role or how they related to the foreign entity's specific business. 
Furthermore, the Petitioner did not provide the required information concerning the organizational 
structure of the foreign entity and did not identify any subordinate stafT that performed the non­
qualifying functions to support the Beneficiary's claimed managerial or executive position. Without 
this information. we are unable to determine that the Beneficiary was performing in a qualifying 
managerial or executive role. Moreover, the Beneficiary's specific duties included activities such as 
"accomplishing a sales plan" and '·managing the administration of the entire company:· Without a 
full-time statT to execute the sales function or conduct company operations, it is unclear how the 
Beneficiary would have primarily devoted his time to managerial or executive duties. It is 
reasonable to conclude that the foreign entity would require employees. in addition to the 
Beneficiary, to perform the functions of sales, administrative. and operational staff 
Based on the statements provided in the record, we are unable to determine whether the claimed 
managerial and executive duties constituted the Beneficiary's primary duties. or whether the 
Beneficiary primarily performed non-managerial administrative or operational duties as described 
above. Although specifically requested by the Director, the Petitioner's descriptions of the 
Beneficiary's job duties does not sutliciently establish what proportion of the Beneficiary's duties 
was managerial or executive in nature, and what proportion was actually non-managerial. S'ee 
Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991 ). 
12 
Matter <~{ F-T- Inc. 
The statutory definition of '"managerial capacity" allows for both ··personnel managers" and 
'·function managers." See section 10l(a)(44)(A)(i) and (ii) ofthe 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 10l(a)(44)(A}(iv) of the Act: 8 C.F.R. ~ 
204.5(j)(4)(i). lf 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 personne I 
actions. 8 C.F.R. § 204.5(j)(2). Here. the Petitioner did not state that the Beneficiary would 
supervise subordinate employees. While the Petitioner did submit an organizational chart that seems 
to indicate that the Beneficiary would oversee other employees. it is not translated and the 
organizational structure is not explained. The Petitioner did not provide evidence indicating that the 
Beneficiary had the authority to control the work of subordinate employees including the authority to 
hire, fire and make personnel decisions. nor did the Petitioner indicate that he controlled the work of 
other supervisory, professional, or managerial employees. For these reasons. the Petitioner has not 
established the Beneficiary was employed as a personnel manager. 
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 tor managing an ··essential function .. 
within the organization. See section 10l(a)(44)(A)(ii) of the Act, 8 U.S.C. ~ 110l(a)(44)(A)(ii). 
The term "essential function'' is not defined by statute or regulation. lf a petitioner claims that the 
beneficiary is managing an essential function. the petitioner must fumish a \Vritten 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. An employee who "primarily" pertorms the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial capacity. See sections 
10l(a)(44)(A) and (B) of the Act (requiring that one ··primarily'' perform the enumerated managerial 
or executive duties): see also Afalter (~{Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm·r 
1988). 
In this matter, the Petitioner has not provided evidence that the Beneficiary will manage an essential 
function. The Petitioner generally asserts the Beneficiary will manage the functions of the foreign 
company and operate at a senior level in the organization·s hierarchy, but it has not detined a 
specific function to be managed or established that the Beneficiary primarily periom1s managerial 
duties in general, or with respect to a specific. defined function. The Petitioner has also not 
established that the subordinate staff of the company performed the day-to-day tasks of the function 
managed, thereby allowing the Beneficiary to manage the function and not perform the function. 
Accordingly. we find that the Petitioner has not provided reliable. probative evidence sufficient to 
establish that the Beneficiary was employed abroad as a function manager. 
13 
Matter (?f F- T- Inc. 
Finally. the Petitioner also indicates that the Beneficiary \vorked abroad as an executive. As noted. 
the term ''executive capacity'' focuses on a person's elevated position \Vithin a complex 
organizational hierarchy. including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act. 8 U.S.C. § 
1101(a)(44)(B). 
Here, the Petitioner emphasizes that Beneficiary's title as Managing Director as evidence of his 
performance of qualifying executive duties. As discussed. incorporating our discussion regarding 
the deficiencies of the position description and absence of documentation concerning other 
employees, we find that the totality of the evidence does not support a finding that the Beneficiary 
was employed as an executive who primarily tocused on the broad goals and policies of the 
organization rather than on its day-to-day operations. 
A company's size alone. without taking into account the reasonable needs of the organization, may 
not be the determining factor in denying a visa to a multinational manager or executive. See § 
101(a)(44)(C) of the Act, 8 U.S.C. § 110l(a)(44)(C). However. it is appropriate tor USClS to 
consider the size of the petitioning company in conjunction \Vith other relevant factors. such as a 
company's small personnel size, the absence of employees who would perform the non-managerial 
or non-executive operations of the company, or a '"shell company'' that does not conduct business in 
a regular and continuous manner. See. e.g family Inc. v. US CIS. 469 F .3d 1313 (9th Cir. 2006 ): 
Systronics Corp. v. llv'S, 153 F. Supp. 2d 7. 15 (D.D.C. 2001). 
Here. given the overly broad breakdovm of the Beneficiary's duties, the lack of percentages of time 
devoted to those duties. the prevalence of non-qualifying duties in his position description, and the 
lack of subordinate staff to perform many essential day-to-day functions of the company. the 
Petitioner has not established by a preponderance of the evidence that the Beneficiary was employed 
in a qualifying managerial or executive capacity. 
IV. QUALIFYING RELATIONSHIP 
Beyond the Director's decision, we also tind that the Petitioner has not established that it is the same 
employer or a subsidiary or affiliate of the tirm or corporation or other legal entity by which the alien 
\Vas employed overseas. The Petitioner must show that the Beneficiary"s foreign employer and the 
proposed U.S. employer are the same employer (i.e. related as a '"parent and subsidiary'" or as 
'·affiliates.'') See generally section 203(b)( I )(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(B). 
The pertinent regulations at 8 C.F.R. § 204.5(2) define the terms "affiliate" and "subsidiary" as 
tollm:vs: 
·1ffiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by 
the same parent or individual, or 
14 
(b)(6)
Matter ofF- T- Inc. 
(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: 
Subsidimy 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. Evidence of Record 
The Petitioner asserts that is related to located in Mexico. 
The record contains a Certificate of Filing from the Office of the Secretary of State of Texas 
indicating that the Petitioner was formed as an entity on The Petitioner's 
Articles of Incorporation dated authorize the issuance of 5000 shares \Vith a par 
value of $1,00 each and identitY the Beneficiary as one of two Directors of the corporation. 3 In a 
document titled 
also dated the Petitioner's 
ownership is described as the Beneticiary owning 600 of the available 5000 shares and 
owning 400 of the available shares. The ·'Stock Ledger and Capitalization 
Summary" submitted shows that the Beneticiary purchased 600 shares on , and 
that purchased 400 shares on the same day. The stock ledger does not 
indicate that any additional shares have been purchased to date. The Petitioner also submitted stock 
certificates that corroborate this information. 
The record also contains IRS Form 1120 U.S. Corporation Income Tax Retum for the Petitioner for 
the years 2008-2011 and 2013. According to the 2008 IRS Form 1120, Schedule K. the Beneficiary 
reportedly owned 100 percent of the voting stock of the Petitioner. For for 2009, 20 I 0 and 2013, 
IRS Form 1120 Schedule G. Information of Certain Persons Ov,·ning the Corporation· s Voting 
Stock, the Beneficiary is listed as the 100% owner ofthe Petitioner's voting stock. Furthermore. for 
the years 2009, 2010, and 2013. the Form 1120 Schedule E. Part 1, indicates that the Beneficiary 
\Vas the owner of 100% of the common stock of the organization. and IRS Form 1125-E. 
Compensation of Officers for 201 I lists the Beneficiary as the I 00% owner of the common stock, 
devoting 50% of time to the corporation. 
' A nearly identical document entitled, "Articles of Incorporation;· is contained in the record; however , this document 
pertains. to a corporation called · The Benetlciary is listed as a Director of this corpor ation also 
and both corporations have the same registered office address of Texas. 
15 
(b)(6)
Matter ofF- T- Inc. 
The Petitioner also submitted a "verification'' from Certified Public 
Accountant dated July I, 2010. attesting to the relationship between the Petitioner and the foreign 
entity, _ This document indicates that the Beneficiary owns a 
60% interest in the Petitioner and that the Petitioner was incorporated on February 15, 2006. This 
document also states that the foreign entity was incorporated in 
Mexico , and that the Beneficiary is one of two shareholders with a 50% interest in the 
foreign entity. 
Regarding the ownership of the foreign entity , the Petitioner submitted copies of the foreign entity" s 
amended Articles of Incorporation of the foreign entity dated December 12, 2008. The amendm ent 
indicates that as of that date, the foreign entity had the following ownership structure: 
SHAREHOLDER ·'A'' STOCK "B'' STOCK TOTAL STOCK AMOUNT 
25 2,755 2,780 $ 2,780,000.00 
25 2,756 2,781 $ 2. 781.000.00 
0 439 439 $439.000.00 
,_ 
TOTALS 50 5,950 6,000 $6,000.000.00 
B. Analysis 
Upon review of the record, including materials submitted in support of the appeaL we conclud e that 
the Petitioner did not establish that it has a qualifying relationship with the Beneficiary' s foreign 
employer. To establish a "qualifying relationship" under the Act and the regulations. the Petitioner 
must show that the Beneficiary's foreign employer and the proposed U.S. employer are the same 
emplo yer (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. § ll53(b)(l )(C): see also 8 C.F.R. § 
204.50)(2) (providing definitions of the terms ·•aftiliate" and "subsidiary") . 
16 
I 
Matter (?f F-T- Inc. 
In this case, the Petitioner does not state the basis of the qualifying relationship. However, being a 
separate legal entity, the Petitioner does not qualify as a branch of the foreign entity, and absent any 
indication in the evidence of record that the foreign entity owns the Petitioner, or vice versa. the two 
entities do not appear to be related as parent and subsidiary. Rather, based on the evidence 
submitted, the Petitioner appears to assert that the Petitioner and foreign entity have an afliliate 
relationship. However, the record contains inconsistent and incomplete evidence regarding the 
Petitioner and foreign entity's ownership, such that we are precluded from determining that the two 
entities qualify as affiliates as that term is defined at 8 C .F.R. § 204.5(j )(2). 
First. the information submitted in regards to the Petitioner's ownership is inconsistent. Specifically. 
the Articles of Incorporation, stock ledger and capitalization summary. and stock certificates all state 
that the Beneficiary owned 60 percent of the 1000 issued shares as of February 2006. However, all 
of the tax documents noted above, tiled from 2008 to 2013, state that the Beneficiary owns 100 
percent of the Petitioner's stock. The stock ledger and stock certificates do not indicate that any 
stock has been transferred, sold, or issued since February 15, 2006; therefore. it is unclear how the 
Beneficiary's ownership grew from 60 to 100 percent. Moreover, in a letter dated July 1. 201 0. the 
Petitioner's CPA attests that the Beneficiary again owns 60 percent of the Petitioner's issued stock. 
Here, the Petitioner has not resolved these inconsistencies with independent. objective evidence 
pointing to where the truth lies. Malter (l I!o. 19 I&N Dec. 582, 591-92 (BIA 1988). The absence 
of any explanation as to the ownership changes raises doubt about the veracity of the information 
provided. !d. Therefore. based on the evidence available in the record, we cannot determine the 
facts of ownership and/or control of the Petitioner. 
Similarly, we are unable to determine the O\vnership structure of the foreign entity. While the 
Petitioner asserts that the Beneficiary owns 50 percent of the foreign entity, the December 2008 
amended Articles of Incorporation indicate that the Beneficiary owns less than 50 percent of the 
outstanding interest in the foreign entity. Thus, absent additional evidence, we cannot conclude that 
the Beneficiary has a majority ownership interest or control over the foreign entity. as asserted by 
the Petitioner. 
Absent sufficient information to detem1ine the true ownership structures of the Petitioner and to reign 
entity, we cannot find that the Petitioner has a qualifying relationship with the Beneficiary's claimed 
foreign employer. For this additional reason, the petition cannot be approved. 
V. CONCLUSION 
We will dismiss the appeal for the above stated reasons. with each considered as an independent and 
alternate basis f(w 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; Malter (d 
Otiende, 26 I&N Dec. 127. 128 (BIA 2013). Here, the Petitioner has not met that burden. 
17 
Matter ofF- T- Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter (dF-T- Inc., 10# 14540 (AAO Apr. 25, 2016) 
18