dismissed EB-1C Case: Consulting

identifying data deleted to 
revent clearly unw~ted P . n ofpersona\ pnvac} inVa510 
PUBUCCOpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u. S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: 
FEB 2 2 2011 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U,S,c, § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case, All of the documents 
related to this matter have been returned to the office that originally decided your case, Please be advised that 
any further inquiry that you might have concerning your case must be made to that office, 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen, The 
specific requirements for filing such a request can be found at 8 c'F,R, § 103,5, All motions must be submitted 
to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, with a fee 
of $630, Please be aware that 8 c'F,R, § 103.5(a)(I)(i) requires that any motion must be filed within 30 days of 
the decision that the motion seeks to reconsider or reopen. 
Thank you, 
;f-Jjt--f Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner, a Texas corporation, claims to operate a consulting business. The petitioner seeks to 
employ the beneficiary as its president. Accordingly, the petitioner endeavors to classify the 
beneficiary as an employment-based immigrant pursuant to section 203(b)(I )(C) of the Immigration 
and Nationality Act (Act), 8 U.S.C. § 1153(b)(I)(C), as a multinational executive or manager. 
On April 1, 2009, the director denied the petition, determining that the petitioner failed to establish: 
(I) that there exists a qualifying relationship between the petitioner and the beneficiary's foreign 
employer; (2) that the foreign company continues to do business after the beneficiary's transfer to the 
United States; (3) that the petitioner has been doing business for at least one year prior to the date the 
petition was filed; and (4) that the beneficiary would be employed in the United States in a qualifying 
managerial or executive capacity. 
On appeal, the petitioner submits a letter and additional documentation addressing the director's 
grounds for denying the petition. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I year by a firm or corporation or 
other legal entity or an affiliate 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 the firm, corporation or other legal entity, or an affiliate or subsidiary 
of that entity, and 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 1-140 for classification of an alien under section 
203(b)(I )(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 that 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. 
See 8 C.F.R. § 204.50)(5). 
Qualifying Corporate Relationship 
The first issue in this proceeding is whether the petitioner has established 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 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)(l)(C) of the Act, 8 U.S.C. § 
1153(b)(l)(C); see also 8 C.F.R. § 204.50)(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. 
The regulation and case law confirm that ownership and control are the factors that must be examined 
in determining whether a qualifYing relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 
(BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter 
of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to 
the direct or indirect legal right of possession of the assets of an entity with full power and authority to 
control; control means the direct or indirect legal right and authority to direct the establishment, 
Page 4 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. 
at 595. 
The petitioner claims to be the wholly owned subsidiary 
company located in Seoul, Korea that employed the benlefuCIal'Y to to 
States under L-IA status. The petitioner provided a copy of its business plan, dated August 12, 2008, 
which states that the petitioner is "100% owned by its foreign parent company." In support of the 
claimed relationship between the two entities, the petitioner submitted, among other things, copies of the 
following stock certificates of the U.S. company, all issued to the foreign entity: 
Certificate no. Number of Shares Date 
• 
33,581 6/24/2008 
• 
25,775 5/28/2008 
-
27,734 3/25/2008 
• 
20,824 2/29/2008 
-
5,701 12/28/2007 
• 
100,000 8/07/2007 
The certificates indicate that the company is authorized to issue "1,000,000 shares common stock." 
The petitioner also submitted copies of six notices of funds transfer from the foreign entity to the U.S. 
entity's bank account at Bank of America. The dates of the notices and the amounts of funds 
transferred correspond to the issuance dates and numbers of shares issued (at the rate of one U.S. 
dollar per share) as stated in the stock certificates. 
The petitioner also submitted its IRS Form 1120, U.S. Corporation Income Tax Return, for the year 
2007. It is noted that on Schedule K of the tax return, the petitioner replied in the negative to the 
questions of whether (I) the company was a subsidiary in an affiliated group or a parent-subsidiary 
controlled group; (2) any individual, partnership, corporation, estate, or trust own, directly or 
indirectly, 50% or more of the corporation's voting stock; and (3) any foreign person own directly or 
indirectly at least 25% of the company's total voting stock at any time during the year. The petitioner 
also submitted its balance sheet as of September 30, 2008, which indicated the value of the company's 
capital stock at that time as $100,000. No other documentation relating to the ownership of the U.S. 
company was submitted. 
In denying the petition, the director found that the record failed to demonstrate that the foreign entity 
has a controlling interest in the U.S. company. Specifically, the director observed that "evidence 
Page 5 
demonstrates that [the foreign company] purchased 213,615 of [the petitioner's] 1,000,000 shares or 
about 24%." The director further noted that on the 2007 tax return, the petitioner disavowed any 
relationship with the foreign entity. 
On appeal, the petitioner maintains that the foreign entity holds 100% of the issued shares of the U.S 
company. The petitioner asserts that the authorized number of shares of the U.S. company is 
I ,000,000, but that number does not represent the number of issued and outstanding shares of the 
company. In support of these claims, the petitioner submitted the original certificate of formation of 
the company and an amendment dated April 14, 2009 stating the number of authorized shares of the 
company as "1,000,000 Shares/par value of $ lIComrnon Stock," in accordance with the minutes of the 
company's special shareholders meeting on August 7, 2007, a copy of which is also provided. The 
August 7, 2007 meeting minutes indicated that the foreign entity, holding "200 shares (100% of total 
issued shares)" was represented by proxy, and confirmed that, on that date, a shareholders resolution 
to issue 100,000 shares, par value I dollar per share, was adopted. The petitioner also submitted the 
company's tax return for the year 2008 and an amended tax return for 2007, both dated April 24, 2009, 
and both disclosing on the respective Schedules K that the foreign entity is the holder of 100% of the 
U.S. company's voting stock. 
The AAO acknowledges that the petitioner submitted copies of its share certificates number 1-6, as 
described above. However, as general evidence of a petitioner's claimed qualifying relationship, stock 
certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership 
and control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, 
corporate bylaws, and the minutes of relevant annual shareholder meetings must also be examined to 
determine the total number of shares issued, the exact number issued to the shareholder, and the 
subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning 
company must disclose all agreements relating to the voting of shares, the distribution of profit, the 
management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Matter of Siemens Medical Systems, Inc., supra. In this instance, there is no stock ledger in the 
record, and the petitioner has provided shareholders resolutions for only one stock issuance, the 
100,000 shares issued to the foreign entity on August 7, 2007. There is no evidence supporting the 
claimed issuance of shares represented by certificates number 2 through 6. Without full disclosure of 
all relevant documents, the AAO cannot conclude that the ownership of the petitioner's stock is as the 
petitioner claimed. 
Moreover, there are a number of unexplained inconsistencies in the record regarding the actual 
outstanding capital stock of the company. For example, there is no evidence in the record of the 
issuance or cancellation of the 200 shares purportedly held by the foreign entity to which the August 
7, 2007 shareholders meeting minutes referred. Stock certificate number I in the record represents the 
100,000 shares issued on August 7, 2007. Further, the disclosures regarding the company's capital 
stock on the company's 2008 balance sheet and tax return are inconsistent with the number of 
outstanding shares represented by the stock certificates. The AAO notes that Schedules K of the 
petitioner's tax return for 2008 and amended tax return for 2007 indicate that the foreign entity owns 
100% of the petitioner's capital stock. I However, the company's balance sheet for September 30, 2008 
and Schedule L of its 2008 tax return both state its capital stock value as $100,000, not $213,615, as 
represented by the stock certificates and corresponding fund transfer receipts included in the record. 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). Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Id. 
In light of these deficiencies in the record, the AAO concurs with the director's conclusion that the 
petitioner has failed to demonstrate that there exists a qualifying relationship between the U.S. 
company and the foreign entity. 
Foreign Company Doing Business 
The director also determined that the "evidence does not establish that the foreign entity continues to 
do business." The director noted that the foreign entity "is described as a tax and business services 
company with the beneficiary as the president and only CPA listed on the organization chart." Thus, 
the director found, the beneficiary's presence in the United States would negatively affect the foreign 
entity's ability to provide tax services to its clients in Korea. 
The regulation at 8 C.F.R. § 204.50)(2) provides the following definition: 
Doing business means the regular, systematic, and continuous provision of goods 
and/or services by a firm, corporation, or other entity and does not include the mere 
presence of an agent or office. 
In reviewing the record, the AAO notes that based on the foreign entity's organizational chart 
submitted with the initial petition, the company has seven other employees in addition to the 
beneficiary, including an assistant CPA, two tax teams and one consulting team, each with one 
manager and one assistant. The record also contains: the foreign entity's certificate for business 
registration dated September 5, 2008; certificates of VAT basis, dated August 29, 2008, covering the 
periods from January I, 2007 through June 30, 2008; and a copy of the lease of the foreign entity's 
current premises, with a term from April I, 2008 to March 31,2010. 
I It is noted that both the petitioner's 2008 tax return and amended tax return for 2007 are dated April 
24, 2009. The record contains no evidence that an extension request was filed, enabling the petitioner 
to file its tax return after the April 15 due date. Under the circumstance, the AAO must question 
whether these tax retums were in fact filed with the IRS or generated solely for the purposes of this 
petition. 
Page 7 
On appeal, the petitioner submits additional documentation as evidence of the foreign entity's ongoing 
business, including: a letter dated April 8, 2009 from the company's vice president, also a CPA, 
confirming that he has been "managing all aspects of the [company 1 including providing accounting 
services to the clients" after the beneficiary's transfer to the United States; the foreign company's 
certificate for business registration and certificate of VAT tax base, both dated April 9, 2009; the 
company's payroll records from September through December 2008; a new organization chart and 
employee list showing a staff of four as of March 31, 2009; and a number of the company's invoices 
from January 2008 through March 2009. 
Based on the submitted evidence, it appears that the foreign entity continues to employ a staff, albeit a 
reduced one, with at least one CPA. The company's invoices indicate that the foreign entity continues 
to provide tax, auditing, and other monthly business services to a number of corporate clients. In view 
of this evidence, the AAO concludes that the petitioner has sufficiently demonstrated, for purposes of 
this petition, that the foreign entity continues to be "doing business" subsequent to the beneficiary's 
transfer to the United States. The director's finding on this issue is therefore withdrawn. 
The U.S. Company "Doing Business" 
The director also found that the petitioner failed to establish that it was doing business for at least one 
year prior to the filing of the petition, as required under the regulation at 8 C.F.R.§ 204.5(j)(3)(i)(D). 
In the letter accompanying the petition, the petitioner claimed to be "in the business of providing top 
quality consulting services to its customers in the U.S." Among other things submitted with the Form 
1-140, the petitioner provided: its financial statement for the three quarters ended September 30, 2008; 
the company's business plan; the company's IRS Form 1120, U.S. Corporation Income Tax Return, for 
the year 2007; IRS Forms 941, Employer's Quarterly Federal Tax Returns, for the last quarter of 2007 
and the first three quarters of 2008; and a number of the company's invoices, dated from October 2007 
through August 2008, including those for consulting services provided to the foreign parent in 
October and November 2007 and what appeared to be transactions involving the wholesale of apparel 
to clients located in Korea. 
In finding that the petitioner failed to demonstrate that it has been doing business for at least one year 
prior to the filing of the petition, the director noted that the petitioner did not lease office space until 
December 1,2008, and that the petitioner's tax return for 2007 showed no assets or liabilities and only 
$17,999 in income. 
On appeal, the petitioner provides additional evidence relating to the conduct of its business in 2007 
and 2008, including: the company's 2008 federal tax return and amended return for 2007; financial 
statement for 2007; a lease agreement for the period from October 2007 through December 2008; and 
bank statements and additional invoices for 2007. Schedules K of both tax returns identify the 
company's business activity as "export consulting" and the product or service as "garment & 
accessor." The 2007 tax return shows $17,990 in gross receipts or sales and $25,000 in consulting 
income, and the 2008 tax return shows $331 ,048in sales and over $84,000 in consulting income. The 
Page 8 
invoices submitted including consulting services provided to the foreign entity in October 2007, 
February 2008 and June 2008 as well as transactions relating to the sale of apparel in October and 
November 2007. 
Based on the foregoing, the AAO finds that the totality of the evidence submitted sufficiently 
demonstrates that the company has been "doing business," as defined under 8 C.F.R. § 204.50)(2) for 
at least one year prior to the filing of the petition on December 23,2008. Accordingly, the director's 
finding with regards to that issue is hereby withdrawn. 
Managerial and Executive Capacity 
Notwithstanding the foregoing, the AAO concurs with the director's denial of the petition on the 
grounds that the petitioner failed to demonstrate that the beneficiary would be employed in the United 
States in a primarily executive or managerial capacity. 
Section 101(a)(44)(A) of the 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 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)(B) of the 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 
Page 9 
(i) directs the management of the organization or a major component or 
function ofthe 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. 
The petitioner claimed on the Form 1-140 that it has three employees. In a letter dated December 23, 
2008 submitted with the Form 1-140, the petitioner described the beneficiary's position in the U.S. 
company as that of a "functional manager." The beneficiary's job duties are described as follows: 
• Establishing the company in the U.S., which includes attending courses and seminars 
as well as interviews with different organizations such as the 
_etc. in order to learn about properly establishing the U 
• Running day-to-day operations of the business including managing resources, 
expenses, taxes, payroll, etc. 
• Obtaining contracts to do business, and expanding targeted areas. 
• Making contacts with potential clients to build customer relationships and generate 
income to the company. 
• Performing market research in various fields in order to expand into different markets 
and target areas. 
• Development of new business projects based on marketing research already in 
progress and continue the development of present projects. 
• Providing continuous assessments of the company's performance through indicators 
and making periodic updates to the Board of Directors of [the foreign company] 
regarding [the U.S. company's] performance. 
According to an organizational chart that was submitted with the initial petition, in addition to the 
beneficiary as president, the positions on the U.S. company's staff that have been filled include a 
director, a consulting division manager, and an importing division manager. The chart indicates that a 
number of other positions - a vice president, an exporting division manager, and five staff positions 
below the three manager positions -- remained vacant at the time the petition was filed. Although the 
petitioner indicated on the Form 1-140 that it has three employees at the time of filing, based on the 
IRS Forms 491 for the fourth quarter in 2007 and the first, second and third quarters in 2008, the 
company only had one employee receiving wages, tips or other compensation during those periods. 
The petitioner's IRS Form 1120 for 2007 showed that $15,000 was paid in compensation of officers; 
the petitioner did not state an amount for salaries and wages paid to employees. 
In concluding that the petitioner has failed to establish that the beneficiary would be employed in the 
United States in a primarily executive or managerial capacity, the director observed that "while the 
organizational chart shows plans to increase staffing, its stage of development in December 2008 
requires the beneficiary to spend his time maintaining the day-to-day operations of the company and 
the customer relationships as he tries to establish the company in the U.S." The director noted some of 
the beneficiary'S operational duties and found the company has not demonstrated that the beneficiary'S 
duties will be managerial in nature. 
On appeal, the petitioner states the following in response to the director's findings on the issue of the 
managerial or executive capacity of the beneficiary'S position in the United States: 
[The petitioner] will increase employees according to the growth of the company. Even 
the age of the company is not long, [the company] has planned that the sales amount of 
2009 is $1,000,000 (more th nomy IS 
not good. The beneficiary is But the 
beneficiary also works as a Manager of [the company]. The job of the beneficiary as an 
Executive are to set up the business strategy, plan long term schedules of the company, 
and many others. The job of the beneficiary as a manager are managing employees, 
maintaining relationships with the clients, etc. 
The petitioner's federal tax return for the year 2008, submitted on appeal, shows the petitioner paid 
$60,000 in compensation of officers and $2,500 in salaries and wages during that year. 
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.F.R. § 204.50)(5). 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. Id. However, the AAO must 
also examine the claimed managerial or executive capacity of a beneficiary based on the totality of the 
record, 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 a complete 
understanding of a beneficiary's actual duties and role in a business. 
First, the AAO notes the record does not demonstrate that the U.S. company had any employee other 
than the beneficiary at the time the petition was filed. The petitioner claimed on the Form 1-140 that it 
has three employees, and the organizational chart shows four filled positions, including that of the 
beneficiary. However, tax documentation up to the end of the third quarter of 2008 indicate that there 
was only one employee receiving any form of compensation. Based on the 2008 tax return, the 
$60,000 paid in "compensation of officers" appears to correspond with the beneficiary's annual salary 
as stated on the Form 1-140 and the petitioner's December 23, 2008 letter. It is unclear who received 
the $2,500 paid by the petitioner in salaries and wages for that year; nonetheless, the amount does not 
seem sufficient to show that any other full-time employee was on staff. The petitioner has not 
clarified these discrepancies in the record with regards to its staffing, nor has it provided any evidence 
Page 11 
substantiating the claim that it employed anyone other than the beneficiary. 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). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Id. 
Absent further evidence, the AAO must conclude that the petitioner has not shown that it employs any 
staff other than the beneficiary at the time the petition was filed. 
The AAO notes the petitioner's claim on appeal that it expects to hire more employees as the company 
grows. However, the petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. According to the petitioner, the beneficiary'S responsibilities within 
the company include "[r]unning day-to-day operations of the business including managing resources, 
expenses, taxes, payroll, etc."; "[o]btaining contracts to do business, and expanding targeted areas"; 
"[rn]aking contacts with potential clients"; and "[p]erforming market research in various fields in 
order to expand into different markets and target areas." These operational tasks of the business are 
generally not considered to be managerial in nature. Rather, these duties suggest that the beneficiary 
is directly responsible for the company's routine sales, marketing and finance activities. An employee 
who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology Int'!., 19 I&N Dec. 593,604 (Comm. 
1988). 
The record also does not support the petitioner's claim that the beneficiary qualifies as a "function 
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 for managing an "essential 
function" within the organization. See section 101(a)(44)(A) of the Act, 8 U.S.C. § 1l01(a)(44)(A). 
In such a situation, the assumption would be that there are other employees who would carry out the 
functions of the organization, even though those employees may not be directly under the function 
manager's supervision. As such, it remains the petitioner's obligation to establish that the day-to-day 
non-managerial tasks of the function managed are performed by someone other than the beneficiary. 
As discussed above, the petitioner has failed to provide evidence to substantiate its claim that the 
beneficiary has sufficient staff, or for that matter, any staff, to relieve him from having to primarily 
perform the non-qualifying tasks of the company. Further, 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 
Page 12 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 204.5(j)(5). 
Here, the petitioner has failed to identifY anywhere in the record the "essential function" that the 
beneficiary is purportedly managing, nor has the petitioner described the duties associated with 
managing that function, as required. 
Similarly, the record does not show that the beneficiary functions in a primarily executive capacity in 
the United States. 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. § 1101(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 will 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. Again, the petitioner has failed to show that there is a 
subordinate level of managerial employees for the beneficiary to direct, or indeed, that there is 
sufficient staffing to relieve the beneficiary from having to focus primarily on the day-to-day 
operations of the company rather than on its broader goals and policies. 
The AAO notes that, in reviewing the relevance of the number of employees a petitioner has, federal 
courts have generally agreed that USCIS "may properly consider an organization's small size as one 
factor in assessing whether its operations are substantial enough to support a manager." Family Inc. v. 
Us. Citizenship and Immigration Services 469 F. 3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 
41,42 (2d Cir. 1990) (per curiam); Q Data Consulting. Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 
2003)). Furthermore, it is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with 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.. 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, IS (D. D.C. 2001). 
As discussed, the petitioner did not submit sufficient evidence to demonstrate that there are any other 
full-time employees who would relieve the beneficiary from perform the actual day-to-day, non­
managerial operations of the company. Based on the petitioner's representations, it does not appear 
that the reasonable needs of the petitioning company might plausibly be met by the services of the 
beneficiary as president alone. 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff 
in the context of reviewing the claimed managerial or executive duties. The petitioner must still 
establish that the beneficiary is to be employed in the United States in a primarily managerial or 
executive capacity, pursuant to sections IOI(a)(44)(A) and (B) or the Act. As discussed above, the 
petitioner has not established this essential element of eligibility. 
Page 13 
Finally, the AAO notes that although the petitioner claims that it operates as a consulting business, the 
evidence of record indicates that the petitioner in fact runs a different business. Based on the 
company's invoices and bank statements, the petitioner appears to make large purchases at outlet 
stores and subsequently sells the items to a customer located in Korea. It is noted that on its tax 
retlurns, irlvoices, and bank statements, the company's address is stated as 
WIll"Il is actually the beneficiary's personal residence, according to the Form 1-140 
and the beneficiary's Form 1-485. The petitioner has not explained these inconsistencies regarding the 
actual nature, and physical location, of its business. Again, 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. at 591. 
Further, if the petitioner in fact engages in the apparel retail or wholesale rather than consulting 
business, it must be assumed that the operational tasks associated with that business - such as 
purchases, sales, inventory control, shipping and handling, etc. - would fall upon the beneficiary as 
well, absent proof that the petitioner has any other employees on board. Again, an employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not considered 
to be "primarily" employed in a managerial or executive capacity. See sections 101 (a)(44)(A) and (B) 
of the Act; see also Matter of Church Scientology Int'!., 19 I&N Dec. at 604. 
In light of the above, the AAO finds that the evidence is insufficient to establish that the beneficiary 
would be employed by the United States company in a primarily executive or managerial capacity. 
For that reason, the petition will be denied. 
Finally, the AAO acknowledges that USCIS has previously approved an L-IA petition filed by the 
petitioner on behalf of the instant beneficiary. It must be noted that many 1-140 immigrant petitions 
are denied after USC1S approves prior nonimmigrant 1-129 L-I petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); lKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103. Examining the consequences of an 
approved petition, there is a significant difference between a nonimmigrant L-IA visa classification, 
which allows an alien to enter the United States temporarily, and an immigrant E-13 visa petition, 
which permits an alien to apply for permanent residence in the United States and, if granted, 
ultimately apply for naturalization as a United States citizen. Cf §§ 204 and 214 of the Act, 8 U.S.C. 
§§ 1154 and 1184; see also § 316 of the Act, 8 U.S.C. § 1427. Because USCIS spends less time 
reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant L-IA 
petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see 
also 8 C.F.R. § 214.2(1)(l4)(i) (requiring no supporting documentation to file a petition to extend an 
L-IA petition's validity). Despite the previously approved petition, USC1S does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a 
subsequent petition. See section 291 of the Act. Based on the lack of required evidence of eligibility 
in the current record, the AAO finds that the director was justified in departing from the previous 
nonimmigrant petition approval by denying the instant petition. 
Page 14 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, 
that burden has not been met. Accordingly, the director's decision will be affirmed and the petition 
will be denied. 
ORDER: The appeal is dismissed.