dismissed EB-1C Case: Dietary Supplements

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-&N-T- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 11, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an exporter of dietary supplements, seeks to permanently employ the Beneficiary as 
its president under the immigrant classification of a multinational executive or manager. See 
Immigration and Nationality Act (the Act) § 203(b )(1 )(C), 8 U.S.C. § 1153(b )(1 )(C). The Director, 
Texas Service Center, denied the petition. The matter is now before us on appeal. Upon de novo 
review, we will dismiss the appeal. 
I. ISSUES 
The issues before us are whether the Petitioner established that (1) the Beneficiary worked in a 
qualifying managerial or executive capacity for a qualifying foreign employer, and (2) it intends to 
employ the Beneficiary in a qualifying managerial or executive capacity in the United States. 
II. 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 
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. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. The 
regulation at 8 C.P.R. § 204.50)(5) states: 
Matter of H-&N- T- LLC 
No labor certification is required for this classification; however, 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 letter must clearly describe the duties to be 
performed by the alien. 
III. EMPLOYMENT IN A QUALIFYING MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that: (1) the 
Beneficiary has been employed abroad employed in a qualifying managerial or executive capacity; 
and (2) the Beneficiary will be employed in a qualifying managerial or executive capacity. 
Section 101(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 
(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. 
(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; 
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(b)(6)
Matter of H-&N- T- LLC 
(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. 
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. See section 101(a)(44)(C) of the Act. 
A. Employment in a Qualifying Managerial or Executive Capacity Abroad 
The Beneficiary was already in the United States at the time of filing. Therefore, the regulation at 8 
C.F.R. § 204.5G)(3)(i)(B) requires the Petitioner to establish that the Beneficiary worked in a qualifying 
capacity for the Petitioner or a related entity for at least one year during the three years preceding his 
entry as a nonimmigrant. 
1. Facts 
The Petitioner filed Form I-140 on June 16, 2014. 
2014, from 
and its Brazilian affiliate , 
stated: 
The Petitioner submitted a letter, dated June 11, 
. identified as general director of the Petitioner 
[The Beneficiary] served as the General Director of from 2009 until 
August 2012 when he was transferred to the United States. In the capacity of General 
Director, [the Beneficiary] oversaw critical business developments and management 
functions. Given his extensive experience with the food supplement importing/ 
exporting business, he was trusted with managing the company and credited for its 
expansion. [The Beneficiary] functioned at a senior level and exercised wide latitude 
in his discretionary decision-making authority for the company. 
A copy of a letter from dated June 25, 2012 (when the Beneficiary was still at 
.. contained the following passage: 
At [the Beneficiary] is responsible for investments, strategic and 
commercial decisions of the company, negotiating and finalizing all contracts with 
our U.S. manufactures [sic]. He makes the executive decision on which products to 
be imported and marketing [sic] by our company. He also signs and executes the 
legal documentation for legal affairs in regards to the 
As the General Director, [the Beneficiary] demanded broad managerial 
discretion and oversaw all critical business developments. All his time is dedicated to 
managerial duties and making critical business decisions. He has 100% discretionary 
authority in day-to-day operations of . 
(b)(6)
Matter of H-&N- T- LLC 
The Petitioner submitted a table, listing each of the Beneficiary's previous responsibilities at 
The Petitioner assigned the following approximate percentages of the time that the Beneficiary spent on 
each duty: 
20% Oversee overall company operations 
20% Direct and coordinate activities of all departments 
10% Review financial statements, sales and activity reports submitted by the manager 
director 
1 0% Make human resources and personnel decisions 
5% Oversee the personnel of each department through Manager Director and 
Regulator[y] Manager 
5% Direct and coordinate organization's financial and budget activities 
10% Establish and implement departmental policies, goals, objectives and procedures 
10% Make executive decisions in regards to import of food supplements 
10% Make executive decisions regarding contractual negotiations and agreements 
The table of the Beneficiary's duties identified the manager director as 
manager as the Beneficiary's spouse. 
and the regulatory 
The Director issued a request for evidence (RFE) on November 24, 2014. The Director requested 
evidence to show that the Beneficiary's position with met the requirements for a 
managerial or executive capacity. In response, the Petitioner submitted copies of previously 
submitted materials and a translation of a declaration, dated July 9, 2012, from an official of 
The declaration listed some of the "acts of company management" that the 
Beneficiary was authorized to perform (grammatical errors not corrected) : 
1. Signing checks and making any payments; 
2. Borrowing and financing from the financial system; 
3. Sign work permits of employees when hiring and notice when fire; 
4. Represent the company business in Brazil and abroad/worldwide; 
5. Signing any documents in the interest of society and even appoint attorneys and 
representatives ; 
6. Holds the position of General Director of the company, serving as role partner 
manager , running and managing with wide supervision of all business developed 
by the company, overseeing three managers directly, including his partner 
which also owns 50% of the shares of 
the company; 
7. Also sign and execute the legal documentation for legal issues of 
relation to the registration of products with the 
=== 'Ill 
1 In its February 4, 2015 , response to the RFE, the Petitioner refers to this document from as 
"documentary proof ' of the Beneficiary 's control over However, the record contains no explanation 
regarding the relationship between nor does it explain the basis for the claims 
outlined in the declaration . The evidentiary value of this document , therefore , is not apparent. 
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(b)(6)
Matter of H-&N- T- LLC 
in foreign trade contracts with service providers, contracts with American 
suppliers, business contracts, legal in general and accounting. 
The Petitioner submitted copies of various versions of organizational chart. Some of 
these charts show the company as it exists now, after the Beneficiary's departure from the company. 
One chart showed the organization as it was during the Beneficiary's tenure there. That chart shows 
the following company structure: 
General Director 
Regulatory Manager 
I 
Manager Director 
I 
Technical Responsible 
I 
Stock/Inventory 
I 
Logistics 
General Manager 
kffice Assistant 
~Five Sales Representatives 
The Director denied the petition on May 21, 2015, stating that the Petitioner had not established the 
managerial or executive nature of the Beneficiary's employment abroad. The Director concluded 
that the Beneficiary "had limited subordinate employees to carry out non-qualifying job duties." 
The Director also found that the job description relied on "a set of broad job responsibilities" which 
did not "convey an understanding of what the beneficiary would actually be doing on a daily basis." 
On appeal, the Petitioner observes that the Director "placed undue emphasis on the size of the 
petitioner" even after the Director "acknowledged the ten subordinate employees working under the 
beneficiary" (emphasis in original). The Petitioner contends that the Director did not give sufficient 
consideration to the "comprehensive description of the executive duties performed by" the 
Beneficiary, and mistook the job description of one of the Beneficiary's subordinates for the 
description of the Beneficiary's own position at 
2. Analysis 
Upon review, and for the reasons stated below, we find that the Petitioner did not establish that the 
Beneficiary's former position abroad meets the requirements of a managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, we review the 
totality of the record, starting first with the description ofthe beneficiary's proposed job duties with 
the petitioning entity. See 8 C.P.R. § 204.50)(5). Published case law has determined that 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), affd, 905 F.2d 41 (2d. Cir. 1990). We then 
consider the beneficiary's job description in the context of the Petitioner's organizational structure, 
the duties of the beneficiary's subordinates, and any other relevant factors that may contribute to a 
comprehensive understanding of the beneficiary's actual duties and role within the petitioning entity. 
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(b)(6)
Matter of H-&N- T- LLC 
The definitions of executive and managerial capacity 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). 
On appeal, the Petitioner notes that the Director referred to a letter describing "the beneficiary's 
duties as General Manager" at although the Beneficiary 
"was not and never claimed to be 
the General Manager at (emphasis in original). The Petitioner states that this error, in 
which the Director confused the Beneficiary's job description with job description, 
demonstrates the Director's lack of attention to the evidence, and therefore "this entire section of the 
denial is not relevant, as it displays a fundamental incomprehension on the part of USCIS as to the 
beneficiary 's position abroad." 
Review of the decision shows that the Director quoted two consecutive paragraphs from 
letter of June 25, 2012. The first paragraph, as the Petitioner notes, referred to the duties of 
the general manager rather the Beneficiary's position of general director. The second quoted 
paragraph, however, applied to the Beneficiary's position, and twice identified the Beneficiary by 
name. The Petitioner's appellate brief, therefore, overstates the extent of the Director's error. 
The Petitioner maintains that it had provided sufficient details about the nature of the Beneficiary's 
work at The record, however, does not support this assertion. 2012 letter, 
quoted in the denial notice, listed broad categories of responsibilities, such as "commercial 
decisions" and "negotiating ... contracts." The percentage breakdown is, likewise, very broad, 
referring to the Beneficiary's discretion to "oversee" the company and "make executive decisions." 
The Petitioner listed two separate categories: "Oversee overall company operations" and "Direct 
and coordinate activities of all departments." These two categories appear to describe the same thing 
(the Beneficiary's discretionary authority) without providing any specific information about the 
nature of the Beneficiary's actual activities. 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 not provided any detail or explanation of the 
Beneficiary's activities in the course of his 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. 
Moreover, the Petitioner has not shown that the Beneficiary had a subordinate staff that relieved him 
from performing non-qualifying duties. According to its organizational chart, employed 
the Beneficiary as general director, who directly supervised a regulatory manager and a manager 
director. The chart further indicated that the manager director supervised a general manager, who in 
tum supervised an office assistant and five sales representatives . The regulatory manager directly 
supervised a "technical responsible," who in tum oversaw a stock/industry employee, who in tum 
supervised a logistics employee. 
(b)(6)
Matter of H-&N-T- LLC 
According to the regulatory manager is "[r]esponsible for regulatory affairs of the 
company," dealing with necessary documentation for importation of supplements such as "technical 
product labeling information." The general manager "[m]anages all the sales team staff," prepares 
invoices and other documents, and handles communication from customers. Although the 
Beneficiary's oversight over these workers is consistent with the requisite level of authority over the 
company, it does not establish that such oversight is his primary responsibility. It is in this context 
that the lack of detail about the Beneficiary's specific duties, as discussed above, prevents a finding 
of eligibility. The presence of identified staff to perform particular functions such as sales and 
logistics does not establish that other operational functions of the company have been delegated in a 
similar manner. For example, although the Petitioner indicates that the Beneficiary oversees all 
departments, it also indicates that he negotiates contracts, thereby leading us to question the extent of 
his involvement in the operational duties of the company. Absent additional details regarding the 
Beneficiary's actual duties within the Petitioner's organizational hierarchy, and the manner in which 
the subordinate staff members will sufficiently relieve him from performing administrative or 
operational duties, we cannot determine the true nature of the Beneficiary's role in the company. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Therefore, the Petitioner has not established that the Beneficiary 
served in a qualifying managerial or 
executive capacity at For this reason, we cannot approve the petition. 
B. Employment in a Managerial or Executive Capacity in the United States 
1. Facts 
The Petitioner claims that the Beneficiary will be employed in the United States as its president, and 
claims that the Beneficiary will "continue to perform senior level executive duties with executive 
type decision-making authority." introductory letter included the following percentage 
breakdown of the time that the Beneficiary devotes to various duties as president of the petitioning 
company: 
1 0% Directing the departmental managers and the business operations 
1 0% Supervise the administration of the company and financial departments 
1 0% Supervise the business operations of marketing development and sales of the 
company 
15% Direct the business operations of import and export of products and its shipping 
and handling 
5% Establish and implement departmental policies, goals, objectives and procedures 
5% Conduct weekly meetings with subordinates for updates and status of business 
operations and achievement of goals 
5% Daily review of business documents regarding policies, goals, tasks, business 
performance, financial situation, marketing, competition, vendor relations, etc[.] 
5% Conduct executive/managerial meetings 
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Matter of H-&N- T- LLC 
10% Attend business meetings outside the company, meet and visit business partners 
to discuss official matters, negotiate, and sign agreements on behalf of the 
company 
5% Participation in business related activities such as dinner parties, social meetings, 
etc[.] 
5% Evaluation of subordinates' performance 
5% Communication with foreign affiliate 
10% Evaluate new brands for possibility of distributorship relations 
On Form 1-140, the Petitioner stated its "Current Number of U.S. Employees" as "5," and the 
Petitioner submitted an organizational chart showing five employees as follows: 
President/Chief Executive Officer 
Regulatory Manager General Manager 
Office Assistant Marketing Assistant 
The record does not show that the Petitioner employed five people at the time of filing. The 
Petitioner's organizational chart identified five positions, but showed one of those positions 
(marketing assistant) as unfilled. The Petitioner stated that the general manager earns $2,000 per 
month; the office assistant earns $400 per month; and the regulatory manager (the Beneficiary's 
spouse) earns $1,500 per month. The Petitioner stated no salary for the marketing assistant, and 
submitted no evidence of past compensation of any worker in that position. 
Apart from the Beneficiary and his spouse, who received partnership income in lieu of salaries, the 
record identified two salaried employees. A payroll record from January 2013 indicated that the 
Petitioner's general manager received $2,000 per month, while its office assistant received $400 per 
month, consistent with the Petitioner's assertions mentioned above. The Petitioner also submitted a 
copy of its IRS Form 1065, U.S. Return of Partnership Income, which indicated that the Petitioner 
paid $29,400 in salaries in 2013, but did not specify how this amount was divided among the 
Petitioner's employees. 
In the RFE, the Director stated: "The job description provided is vague and does not provide 
sufficient information regarding the beneficiary's proposed job duties on a day-to-day basis." The 
Director also stated that, given the Petitioner's "limited staffing, the petitioner must demonstrate that 
the beneficiary primarily performs qualifying job duties." The Director specifically instructed the 
Petitioner to submit copies of its IRS Forms 941, Employer's Quarterly Federal Tax Returns, for the 
first two quarters of 2014, and copies of its IRS Forms W-2, Wage and Tax Statements, "for the 
relevant years for each employee." 
The Petitioner's response included copies of previously submitted job descriptions and a new 
organizational chart containing essentially the same information as the first version, still showing the 
marketing assistant position as vacant. Copies of the Petitioner's IRS Form 941 quarterly returns 
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Matter of H-&N- T- LLC 
showed that it paid $5,800 in salaries to two employees in the first quarter of 2014, and $1,800 in 
salaries to one employee in the second quarter of2014 (which included the June 16 filing date). The 
Petitioner withheld $535.72 per month in taxes in January and February, and $133.05 per month 
from March through June. This information suggests that one of the Petitioner's employees left the 
company at the end of February 2014. 
The Petitioner did not submit the requested IRS Forms W-2, or any explanation for their absence. 
Instead, the Petitioner stated: "An individual's function as a manager or executive is not diminished 
merely because he or she has no employees to supervise." 
The Director, in denying the petition, found the description of the Beneficiary's duties to be vague 
and lacking in detail. The Director also found that the Petitioner had established the Beneficiary's 
discretionary authority over the petitioning entity, but not that the Beneficiary devotes the majority 
of his time to qualifying managerial or executive functions rather than operational activities. 
The Director noted that "[t]he petitioner's organizational chart shows three (3) subordinate 
employees," none of whom appears to earn a professional-level wage. The Director did not state 
that the small size of the Petitioner's staff automatically disqualified the Beneficiary, but the 
Director did observe that, in the absence of subordinate employees to relieve the Beneficiary from 
performing non-qualifying tasks, the burden is on the Petitioner to show who performed those tasks 
so that the Beneficiary did not need to do them himself. 
On appeal, the Petitioner states that the Beneficiary's signature on "executive agreements" with 
vendors "reflects ... [the Beneficiary's] status as the company's top executive." The Petitioner 
contends that the Director "focused on the [Petitioner's] staffing levels" and on the educational level 
of the Beneficiary's subordinates, although, the Petitioner asserts, the regulations contain no 
requirement for the Beneficiary's subordinates to hold baccalaureate degrees. The Petitioner asserts 
that the Petitioner provided a detailed job description showing that "the beneficiary is engaged in the 
performance of executive duties throughout the work day," and "can also be considered a manager." 
2. Analysis 
For the reasons specified below, the Petitioner has not established that it intends to employ the 
Beneficiary in a qualifying managerial or executive capacity. 
The regulations and case law cited earlier in this decision, relating to the need to provide sufficient 
details about a beneficiary's duties in order to demonstrate their qualifying nature, apply here to the 
beneficiary's duties in the United States as well as to his previous duties abroad. 
Section 101(a)(44)(C) of the Act requires our office to "take into account the reasonable needs of the 
organization, component, or function in light of the overall purpose and stage of development of the 
organization, component, or function." We have long interpreted the statute to prohibit 
discrimination against small or medium-size businesses. However, we have also consistently 
required the petitioner to establish that the beneficiary's position consists of "primarily" managerial 
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Matter of H-&N- T- LLC 
and executive duties and that the petitioner has sufficient personnel to relieve the beneficiary from 
performing operational and administrative tasks. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 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; 8 C.P.R. § 
204.5(j)( 4 )(i). If a beneficiary directly supervises other employees, the beneficiary must also have 
the authority to hire and fire those employees, or recommend those actions, and take other personnel 
actions. 8 C.P.R. § 204.5(j)(2). 
Here, the Petitioner's organizational chart, which demonstrated that the Beneficiary oversaw a 
regulatory manager and a general manager, who in turn supervised an office assistant and a 
marketing assistant, suggests that the Beneficiary will act as a personnel manager. However, when 
the Director requested evidence that the Petitioner employs and compensates the subordinate staff 
claimed in the initial filing of the petition, the Petitioner did not submit the requested documentation. 
Instead, the Petitioner stated: "An individual's function as a manager or executive is not diminished 
merely because he or she has no employees to supervise." The Petitioner stated in the following 
paragraph that the Beneficiary supervises five employees. An assertion about "no employees" is 
irrelevant if the Petitioner has employees, and if the Petitioner did continue to employ a subordinate 
staff, then the requested evidence should have been available to document that continued 
employment. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.P.R. § 103.2(b)(14). 
Furthermore, the IRS Form 941 return from the second quarter of 2014 indicates that the Petitioner 
had one salaried employee as of the June 2014 filing date, earning $600 per month. This rate of pay 
is not consistent with full-time employment. The employment of a single, part-time employee is not 
consistent with the Petitioner's claims about its staffing at the time of filing. 
The record lacks evidence to establish that the Petitioner in fact employs a subordinate staff that 
would relieve the Beneficiary from performing the daily operational tasks associated with the 
operation of the Petitioner's business. This deficiency, coupled with the discrepancies noted above, 
precludes us from finding that the Beneficiary is employed as a personnel manager. 
The Petitioner is correct that an individual with no direct subordinates could still qualify as a 
manager or executive under certain circumstances. Specifically, 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. § 1101(a)(44)(A)(ii). 
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Matter of H-&N- T- LLC 
In this particular instance, the Petitioner claimed a subordinate staff, and the Beneficiary's job 
description, as provided by the Petitioner, refers to "departmental managers," "financial 
departments," a "marketing department," and "weekly meetings with subordinates." However, the 
Petitioner simultaneously claims that the Beneficiary is a function manager based on the lack of 
subordinate staff. If the Beneficiary has no subordinates, and the Petitioner has no departments (and, 
therefore, no departmental managers), then the list of the Beneficiary's duties is inaccurate and 
therefore unreliable. Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). In this matter, the Petitioner has not provided an 
explanation for this contradictory assertion, and therefore has not established that the Beneficiary 
manages an essential function? 
Also, the percentage breakdown of the Beneficiary's duties contains redundant entries and overly 
general categories. As an example of the former, the Petitioner did not explain the difference 
between "weekly meetings with subordinates" and "executive/managerial meetings." Examples of 
vague or general duties include the assertions that the Beneficiary will "[ d]irect the business 
operations" and "[ e ]stablish and implement departmental policies, goals, objectives and procedures." 
These are goals that the Beneficiary seeks to achieve; the descriptions offer no information about 
what the Beneficiary does to achieve those goals. Operational functions are unexplained. For 
example, a key activity of the company is the shipment of products to Brazil, but the Petitioner has 
not shown who, other than the Beneficiary himself, handles the logistics of these shipments. 
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. at 1108. 
The Petitioner initially claimed that the Beneficiary qualifies for the classification sought through his 
oversight of four subordinates, but the Petitioner has been either unable or unwilling to submit 
requested evidence to establish the employment of those subordinates. On appeal, the Petitioner 
pursues an alternative claim that the Beneficiary qualifies as a function manager even in the absence 
of subordinates, but this claim rests on a job description that presumes the presence of multiple 
subordinates. The Petitioner's claims, therefore, are mutually inconsistent. 
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[] 
2 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. § 204.50)(5). 
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Matter of H-&N- T- LLC 
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. 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. Due to the inconsistent evidence provided with regard to the Petitioner's organizational 
hierarchy and the Beneficiary's actual duties within that hierarchy, we are unable to conclude that 
the Beneficiary will be employed in an executive capacity. 
Accordingly, we find that the Petitioner did not provide reliable, probative evidence sufficient to 
establish that it will employ the Beneficiary in the United States in a qualifying managerial or 
executive capacity. For this reason, USCIS cannot approve this petition. 
IV. CONCLUSION 
We will dismiss the appeal 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 of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofH-&N-T- LLC, ID# 15397 (AAO Feb. 11, 2016) 
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