dismissed EB-1C Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-I-U-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 1, 2016 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR.ALIEN WORKER 
The Petitioner, an unaccredited online university, seeks to permanently employ the Beneficiary as its 
chief executive officer under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(1)(C), 
8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
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The Director, Texas Service Center, denied the petition. The Director concluded that the Petitioner 
did not establish that: (1) it has a qualifying relationship with the Beneficiary's former employer 
abroad; (2) the Beneficiary would be employed in the United States in a managerial or executive 
capacity; and (3) that it had been doing business in the United States for at least one year prior to 
filing the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner disputes the Director's findings, 
asserting that the Director did not consider the submitted evidence documenting its ownership and 
did not properly evaluate the evidence pertaining to the Beneficiary's employment within the scope 
of the statutory definition of executive capacity. With regard to the issue of doing business, the 
Petitioner contends that the Director overlooked the fact that its business activities at the time of 
filing. were limited to selling pre-recorded lectures to educational institutions because of the 
Petittpner's pending license with the Department of Education, which is required to enroll students. .. ~ 
Upon de novo review, we find that the Petitioner submitted sufficient evidence to establish that it has 
been· doing business for at least one year prior to the date of filing the petition. 8 C.F.R. 
204.5G)(3)(D). Notwithstanding this determination, will dismiss the appeal based on the two 
remaining eligibility grounds, which are cited above. 
I. LEGAL FRAMEWORK 
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 of M-1-U-, LLC 
(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 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.F.R. § 204.50)(3) 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: ' 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by· 
a firm or corporation, or other legal entity, or by an affiliate or subsidiary 
of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer 
or a subsidiary or affiliate of the firm or corporation, or other legal entity 
by which the alien was employed overseas, in the three years preceding 
entry as a nonimmigrant, the alien was employed by the entity abroad for 
at least one year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
least one year. 
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(b)(6)
Matter of M-1-U-, LLC 
II. QUALIFYING RELATIONSHIP 
The Director denied the petition based, in part, on a finding 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, a 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 section 203(b)(l)(C) ofthe Act; 8 C .F.R. § 204.5(j)(3)(i)(C). 
The pertinent regulations at 8 C.F.R. § 204.5(j)(2) define the relevant terms. Generally, the term 
"affiliate" means: 
(A)One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; [or] 
(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 .... 
The same regulation defines a "subsidiary" as: 
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 Form I-140 was filed on September 30, 2014. The record indicates that the Beneficiary's last 
I 
foreign employer was a Mexican entity. In support of the petition, the 
Petitioner provided a statement indicating that it and the Beneficiary' s foreign employer are affiliates 
by virtue of each being 50150 owned by the same two individuals - the Beneficiary and her spouse. 
The Petitioner's supporting evidence included the foreign entity's Minutes of General Shareholders 
Meeting and Resolutions, showing the transfer of ownership from former owner 
to the Beneficiary. The document shows that the Beneficiary's spouse was one of the two 
original contributors of capital and remained such after the resolution granting the Beneficiary the 
ownership interest, thus making the Beneficiary and her spouse equal owners of the foreign entity. 
The Petitioner also provided its own articles of organization, which addresses the company 
management at Article IV, identifying the Beneficiary, her spouse, and as the 
Petitioner's three managers, as well as its 2013 U.S. Return of Partnership Income, Form 1065, in 
which Schedule K-1 showed the Beneficiary and her spouse as each owning 50% of the Petitioner. 
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(b)(6)
Matter of M-1-U-, LLC 
On February 19, 2015; the Director issued a request for evidence (RFE), advising the Petitioner that 
the evidence in the record did not establish a qualifying relationship between it and the Beneficiary's 
foreign employer. The Director instructed the Petitioner to submit a copy of its partnership 
agreement or other documentation demonstrating common ownership and control of both entities in 
order to establish a qualifying relationship. 
In response to the RFE, the Petitioner resubmitted a copy of the foreign entity's minutes of meeting 
and the Petitioner's own articles of organization. The Petitioner also provided its partnership tax 
return for 2014, including Schedule K-1, which again assigns 50/50 ownership to the Beneficiary 
and her spouse, as well as its annual reports, filed on April 23, 2014, and March 18, 2015, 
respectively, listing the Beneficiary, her spouse, and as the Petitioner's managers. 
The Director denied the petition on October 21, 2015, concluding that the evidence provided is not 
sufficient to establish col11ln'on ownership and control. The Director pointed to the Petitioner's 
Articles of Organization and annual reports, which show three managers, and determined that the 
Petitioner did not submit sufficient evidence to show that it is owned only by the Beneficiary and her 
spouse. 
On appeal, the Petitioner submits a statement reasserting claims 
that were previously made in 
response to the RFE. Namely, the Petitioner contends that Florida statutes do not require that the 
Petitioner create an operating agreement and cites to provisions that allow for manager managed 
limited liability companies. The Petitioner further points out that the applicable state law provisions 
all~w for managers who are QOt necessarily members holding an ownership interest. The Petitioner 
contends that is exclusively a manager, who holds no ownership interest, m 
contrast to the Beneficiary and her spouse, who the Petitioner claims own !t in equal parts. 
B. Analysis 
Upon review of th~ petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that it has a qualifying relationship 
with th'e foreign entity. 
The r{gulation and case law confirm that ownership and control are the factors that determine 
whether a qualifying 
relationship exists between United States and foreign entities for purposes of 
this visa classification. See Matter of Church Scientology Int '1, 19 I&N Dec. 593 (BIA 1988); see 
also Matter of Siemens Med. Syss., Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N 
Dec. 289 (Comm'r. 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 , 
man~gement, and operations of an entity. Matter of Church Scientology Int'l , 19 I&N Dec. at 595. 
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(b)(6)
Matter of M-1-U-, LLC 
In the present matter, the evidence submitted to establish a qualifying relationship between the 
Petitioner and the Beneficiary's employer abroad is deficient in that no evidence has been provided 
to establish that the Beneficiary and her spouse own the Petitioner, as claimed. While the record 
contains 2013 and 2014 tax returns identifying the Beneficiary and her spouse as joint owners of the 
Petitioner, with each individual shown as owning 50%, such evidence is not sufficient for the 
purpose of establishing ownership of the entity. The Petitioner's annual reports and its Articles of 
Organization, which clearly identify the Beneficiary, her spouse, and as the entity's 
three managers; do not support the Petitioner's claims; rather both documents are silent on the issue 
of ownership. 
On appeal, the Petitioner contends that United States Citizenship and Immigration Services (USCIS) 
"fails to take into consideration the overwhelming evidence" establishing the Petitioner's ownership. 
We point out, however, that the only evidence on record that speaks to the issue of ownership 
consists of the Petitioner's two tax returns. We find that the Petitioner was overzealous in referring 
to its 2013 and 2014 tax returns as "overwhelming evidence" of its ownership, given the lack of 
other corroborating evidence, such as a clause in the Petitioner's Articles of Organization, an 
operating agreement, share certificates, or any other contractual agreement specifically identifying 
the Beneficiary and her spouse as the Petitioner's sole owners, each owning 50% of the Petitioner. 
LLCs are generally obligated by the jurisdiction of formation to maintain records identifying 
members by name, address, and percentage of ownership and written statements of the contributions 
made by each member, the times at which additional contributions are to be made, events requiring 
. I 
the dissolution of the limited liability company, and the dates on which each member became a 
member. These membership records, along with the LLC's operating agreement (if available), 
certificates of membership interest, and minutes of membership and management meetings, must be 
examined to determine the total number of members, the percentage of each member's ownership 
interest, the appointment of managers, and the degree of control ceded to the managers by the 
members. Additionally, a petitioning company must disclose all agreements relating to the voting of 
interests, the distribution of profit, the management and direction of the entity, and any other factor 
affecting actual control ofthe entity. See Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 
(Comm'r 1986). Without full disclosure of all relevant documents, USCIS is unable to determine 
the elements of ownership and control. 
Although the Petitioner claims that it need not submit an operating agreement because it has 
complied with state statutory provisions, the Petitioner must nonetheless meet the federal statutory 
requirements and be consistent with current case law precedent in order to establish the true facts of 
its ownership and eligibility for the immigration benefit sought. Here, the Petitioner has not done .so. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter ofSojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(quoting Matter ofTrea sure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Accordingly, in light of the lack of sufficient supporting evidence to establish that the Beneficiary 
and her spouse are 50/50 owners of the Petitioner, we cannot conclude that the Petitioner has an 
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/ 
Matter of M-1-U-, LLC 
affiliate relationship with the Beneficiary's foreign employer as claimed, or that any other qualifying 
relationship exists between the two entities. 
III. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that 
the Beneficiary will be employed in a managerial or executive capacity. The Petitioner does not 
claim that the Beneficiary will be employed in a managerial capacity. Therefore, we restrict our 
analysis to whether the Beneficiary will be employed in an executive capacity. 
Th~ regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "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) estaplishes 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. 
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 10l(a)(44)(C) ofthe Act. 
I 
A. Evidence of Record 
On the Form 1-140, the Petitioner indicated that it had five current employees in the United States 
and a gross annual income of $305,420. In a supporting statement, the Petitioner stated that it seeks 
to distribute online educational content to colleges, universities, and military and vocational schools 
throughout the United States. The Petitioner stated that the Beneficiary would use her "expertise in 
the marketing and development of online higher education" to carry out the following job duties: 
• Establishing clearly articulated strategic goals for [the Petitioner] based on the 
·t.J company's overall mission and objectives; 
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Matter of M-1-U-, LLC 
• Interviewing, hiring, and training new employees including capable management 
staff, including the Operations Director, Recorder, and Administrative Assistant 
within the first six months of operations; 
• Delegating responsibilities to new management and employees upon hiring staff 
members; 
• Creating, implementing, and maintaining cost controls; 
• Planning and developing organizational policies, procedures and programs, and 
directing the implementation thereof; 
• Directing and coordinating the production, sales, and distribution activities in 
coordination with [the foreign entity] to obtain optimal use of the company's 
resources; 
• Developing marketing and business development policies, procedures and programs; 
• Overseeing the contracting of third-party firms to provide marketing, human 
resources, and accounting functions which cannot be immediately assumed by [the 
petitioning entity]; 
• Directing and coordinating the development of all administrative, operational, and 
domestic and international sales and distribution programs; 
• Creating standard operating procedures and policies for all aspects of the business; 
• Negotiating the procurement of financing for U.S. operations, as needed; and 
• Directing sales and distribution activities to maximize operational efficiency. 
The Petitioner also provided two organizational charts - one representing its organizational 
composition at the time of filing and the other representing its organizational composition during the 
one-year period prior to filing. With the exception of a change in the names of employees, both 
charts depict the same staffing structure with the Beneficiary at the top of the hierarchy followed by 
a finance and marketing coordinator and an operations director as the Beneficiary's direct 
subordinates. The lowest tier of the hierarchy depicts a finance and marketing assistant reporting to 
the finance and marketing coordinator and an administrative assistant and systems and recorder 
coordinator both reporting to the operations director. The latest chart indicates that the position of 
systems and recorder coordinator was vacant at the time of filing, despite having been filled prior to 
filing, as indicated in the earlier organizational chart. The number of employees in the latest 
organizational chart is consistent with the number of employees claimed in the Form I-140. The 
Petitioner also submitted salary information and job profiles for the subordinate positions. 
In the February 19, 2015 RFE, the Director advised the Petitioner that the evidence in the record did 
not establish that the Beneficiary would be employed in an executive capacity in the United States. 
The Director found that the Petitioner provided a vague job description and did not establish that its 
five-person business could support the Beneficiary in an executive position. Therefore, the Director 
instructed the Petitioner to provide the following: (1) a list of Beneficiary's proposed job duties with 
time constraints assigned to each duty; (2) an organizational chart showing who reported to the 
Beneficiary as well as job titles, brief job descriptions, and educational levels of the Beneficiary's 
subordinates; and (3) IRS Form W-2, Wage and Tax Statements, for the relevant time period for all 
employees along with evidence of contractors if contract labor was used. 
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(b)(6)
Matter of M-1-U-, LLC 
In response to the RFE, the Petitioner submitted a statement indicating that the Beneficiary 
"assumed a wide range of duties associated with the opening of the new office in Florida." 
The Petitioner stated that the Beneficiary is charged with strategic and operational responsibilities, 
including reporting to the Board of Directors, reaching financial objectives, and overseeing the 
development and administration of the business. The Petitioner provided the following percentage 
breakdown of the Beneficiary's proposed employment: 
• Responsible for the supervision of obtaining and development of the Education 
Certificate with the Florida Department of Education ( 40% ); 
• Hiring and firing of personnel for the [Petitioner], direct supervision of any and all 
interviews for potential personnel, and final decision on hiring and firing of personnel 
(5%); 
• Selection of all qualified professors for the lecturing of University courses to be 
recorded (1% ); 
• The planning and management of conventions to be held on behalf of the [Petitioner] 
.... (10%); 
• Supervision and evaluati[on] of the sample lectures by new professors of the 
[Petitioner] (2% ); 
• Supervision of personnel responsible for the control of all generated revenue of the 
[Petitioner] (1 %); 
• Supervision and review of the [Petitioner]'s general report (10%); 
• Supervision, analyzing, and review of [the Petitioner]'s statistics and weekly results 
(1%); 
• Supervision and monitoring of the [Petitioner]'s goals (1 %); 
• Responsible for the development of sales strategies ... (1 %); 
• Responsible for new product development (1 %); 
• Supervision of the [Petitioner]'s teams' motivational strategies (1 %); 
• Responsible for the development of promotional strategies (1 %); 
• Responsible for the development of motivational dynamics ( 1% ); 
• Supervisiot?- of the efficiency of the [Petitioner]'s personnel, including staff and 
faculty (1%); 
• Modification and development of new daily financial strategies based on the daily 
results ofthe [Petitioner] (5%); 
• Delegating strategic separate billing opportunities between personnel based on the 
supervision and monitoring of the [Petitioner]'s monthly income (1 %); 
• Maintain official records and documents of the [Petitioner] and ensuring compliance 
with federal, state, and local regulations (5%); 
• . Informing the [Petitioner]' s Board about issues concerning the [Petitioner] and new 
( developments of the [Petitioner] (1 0% ); 
•· Responsible for maintaining an environment which attracts, keeps and motivates a 
diverse ... personnel of high quality people (1%); and 
• Managing personnel ... (1% ). 
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Matter of M-1-U-, LLC 
The Petitioner provided a new organizational chart, which depicts the Beneficiary at the top of a 
four-tiered organizational hierarchy followed by an administrative coordinator and an academic vice 
president as her two direct subordinates at the second tier, and a marketing coordinator and an 
academic coordinator on the third tier as the direct subordinate's of the administrative coordinator 
and academic vice president, respectively. The chart shows the faculty and a general administrative 
assistant at the bottom of the hierarchy, where the latter is subordinate to the marketing and 
academic coordinators, while the faculty are subordinate to the academic coordinator. 
The Director denied the petition, concluding that the Petitioner provided a deficient job description 
that did not adequately convey an understanding of the Beneficiary's job duties. The Director also 
acknowledged that the Petitioner provided multiple organizational charts, but noted that the 
Petitioner must be eligible based on the facts that existed at the time of filing. In reviewing the 
Petitioner's organizational structure at the time of filing, the Director concluded that the Petitioner 
did not have the capacity to support the Beneficiary in a primarily managerial or executive capacity 
and to relieve her from allocating her time to tasks that are primarily within a managerial or 
executive capacity. 
On appeal, the Petitioner points out that its main business activity at the time of filing was the sale of 
prerecorded lectures given by professors whom the Beneficiary selected and further asserts that the 
Beneficiary was not providing those products and services at the time of filing. The Petitioner 
contends that the Director disregarded relevant evidence, which led to an erroneous conclusion with 
regard to the Beneficiary's employment capacity. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary's employment in 
the United States will be in an executive capacity. 
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 10l(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 a beneficiary to direct 
and a 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 
statuM simply because they have an executive title or because they "direct" the enterprise as an 
owner .or sole managerial employee. A 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." Id. 
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Matter of M-1-U-, LLC 
When examining the executive capacity of a given beneficiary, we 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 cle~rly describe the duties to be performed by the Beneficiary and indicate that such 
duties are in an executive capacity. Id. 
In the present matter, the Petitioner provided multiple job descriptions to support the claim that the 
Beneficiary will be employed in an executive capacity. However, the Petitioner did not clarify 
whether the latest job description, which was provided in response to the RFE, was based on the 
Petitioner's current staffing, as reflected in the most recent organizational chart, or whether the job 
description pertains to the earlier chart, which reflects the more limited staffing structure that was in 
place at the time of filing. 
Regardless, we find that neither job description is sufficient to establish eligibility. While the latest 
job description is more detailed and contains a percentage breakdown, as requested by the Director, 
it does not contain sufficient information that would lead to the conclusion that the proposed position 
is primarily in an executive capacity. On appeal, the Petitioner highlighted a number of the 
previously enumerated duties as "executive duties," asserting that the Beneficiary would devote 71% 
of his time to performing these tasks. Of the responsibilities claimed to be executive, the Petitioner 
indicated that 40% of the Beneficiary's time would be allocated to maintaining "supervision and 
responsibility for the obtaining and development of the Education License in the State of Florida." 
Although the Petitioner groups this job duty with several other duties that it claims are of an 
executive nat~re, we cannot concede to Petitioner's claim without an express list of the tasks that are 
involved in supervising the licensing process or an explanation of what is entailed in developing a 
state-issued education license. The job description also does not list the underlying tasks that are 
involved in actually obtaining the license or indicate who, within the pool of employees the 
Petitioner had available at the time of filing, was responsible for executing those tasks. These 
unknown components of supervising and being responsible for obtaining and developing a Florida 
education license are critical to our determination of whether the Beneficiary's underlying tasks 
would truly be of an executive nature. Reciting a beneficiary's vague job responsibilities or broadly­
cast business objectives is not sufficient; the regulations require a detailed description of a 
beneficiary's daily job duties, as the actual duties themselves will reveal the true nature of the 
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). 
Next, with regard to the Petitioner's claim that the Beneficiary would allocate 1 0% of her time to the 
claimed executive duty of supervising and reviewing "the University's general report," the Petitioner 
did not specify the subject matter of the report, disclose who is responsible for generating it, or 
identify the Beneficiary's follow-up action after completing her review. If the Beneficiary is 
responsible for generating this report, which is possible in light of the lack of any indication to the 
contrary, it is unclear that the actual task of generating the report can be deemed as one of an 
executive nature. 
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Matter of M-1-U-, LLC 
Finally, while the Petitioner claims that another 10% of the Beneficiary's time would be allocated to 
the claimed executive duty of communicating "issues" and "new developments" to its board of 
directors, the record contains no prior mention establishing the existence of a board of directors or 
information to disclose who sits on this board. In fact, the existence of a board of directors and the 
Beneficiary having to answer to such a body inherently implies that someone other than the 
Beneficiary assumes the top-most position within the Petitioner's organizational hierarchy and 
actually controls the Petitioner, which is inconsistent with prior claims indicating that the 
Beneficiary and her husband own and control the university. The Petitioner's claim regarding its 
ownership leads to the understanding that there is no one higher within the Petitioner's 
organizational hierarchy than the Beneficiary and her husband. The same claim is also reflected in 
the Petitioner's multiple organizational charts, all of which depict staffing hierarchies showing the 
Beneficiary in the top-most position. The Petitioner has not resolved this inconsistency with 
independent, objective evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). 
In light of the multiple deficiencies we described above with regard to the description of the 
Beneficiary's proposed job duties, we are unable to determine what specific tasks would comprise 
the primary portion of the Beneficiary's proposed employment or whether such tasks would fall 
within the parameters of the definition of executive capacity. 
We further note that the Beneficiary's management or direction of a business does not necessarily 
establish eligibility for classification as a multinational manager or executive who would be 
employed in a managerial or executive capacity within the meaning of section 101 (a)( 44) of the Act. 
By statute, eligibility for this classification requires that the duties of 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). 
While the Beneficiary may exercise discretion over the Petitioner's day-to-'day operations and 
possesses the requisite level of authority with respect to discretionary decision-making, the position 
description alone is insufficient to establish that her actual duties, as of the date of filing, would be 
primarily executive in nature. 
Therefore, we also consider the proposed position in light of the nature of the Petitioner's business, 
its organizqtional structure, the availability of staff to carry out the Petitioner's daily operational 
tasks, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a Petitioner has, 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 ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 
905 F.2d at 42; Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, 
it is appropriate for USC IS 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 
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Matter of M-1-U-, LLC 
does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 
153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In addition, the evidence must substantiate that the duties of the Beneficiary and her subordinates 
correspond to their placement in the Petitioner's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is 
sufficiently complex to support an executive position. 
In the present matter, the Petitioner provides multiple organizational charts indicating that the 
Petitioner experienced changes in staffing over the course of several years: While we do not find 
that such changes are indicative of factual inconsistencies, we do find that the most recently 
submitted chart cannot influence our determination of the Petitioner's eligibility at the time of filing, 
given that Petitioner's increase in staffing took place after the petition was filed. A petitioner must 
establish eligibility at the time of filing and must continue to be eligible for the benefit through 
adjudication. 8 C.F .R. § 103 .2(b )(I). A petition may not be approved at a future date after the 
Petitioner or Beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Comm'r 1971). Thus, while the Petitioner will not be penalized for the changes to its 
staffing, such changes cannot serve to support the Petitioner's eligibility as they do not reflect the 
facts and circumstances that existed at the time of filing. As previously indicated, the organizational 
chart that depicts the Petitioner's staffing structure at the time of filing indicates that the Petitioner 
had a total of five employees and that a systems and recorder coordinator was not included among 
those five employees, as that position was not filled at the time of filing. As such, we question who 
was performing the tasks that would otherwise have been assigned to the vacant position and how 
the reallocation of tasks to compensate for the vacancy affected the Beneficiary's proposed position 
at the time the petition was filed. 
We also note that according to the job profiles submitted, the operations director's salary was 
identical to the salary offered to the recording and system coordinator, which the organizational 
chart depicts as the former employee's subordinate, and that the salary of the administrative 
assistant, was only .63 cents per hour less than that of the operations director, whom the 
organizational chart depicts as supervisory with respect to the administrative assistant. Similarly, the 
salaries of the finance and marketing coordinator and the assistant to the finance and marketing 
coordinator are identical, despite the fact that the organizational chart depicts the assistant finance 
and marketing position as subordinate to the finance and marketing coordinator. The Petitioner does 
not explain why the salaries it pays to two seemingly supervisory positions are identical or nearly 
identical to their respective subordinates. As noted above, artificial tiers of subordinate employees 
and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive position. 
In the present matter, the Petitioner contends that the Beneficiary's focus on directing the 
management of the organization, establishing its policies, and using her discretionary authority to 
make decisions supports the claim that the Beneficiary would be employed in an executive capacity. 
We find, however, that neither the Beneficiary's job description nor the Petitioner's organizational 
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Matter of M-1-U-, LLC 
hierarchy (as depicted at the time of filing) corroborate the claim that the Petitioner was ready and 
able, in terms of its organizational complexity, to support the Beneficiary in an executive capacity 
such that she would be relieved from having to allocate her time primarily to operational and 
administrative tasks inherent. to the Petitioner's business. As previously noted, the fact that the 
Beneficiary manages or directs a business does not necessarily establish eligibility for classification 
as an intracompany transferee in a managerial or executive capacity within the meaning of section 
101 (a)( 44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" of an executive nature. Section 101(A)(44)(B) of the Act, 8 U.S.C. § 
1101 (a)( 44 ). While the Beneficiary may exercise discretion over the Petitioner's day-to-day 
operations and possesses the requisite level of authority with respect to discretionary decision­
making, these factors are not sufficient to establish that the Beneficiary's actual duties, as of the date 
of filing, would have been primarily executive in nature. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
will be employed in a managerial or executive capacity in the United States. 
\ 
IV. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-1-U-, LLC, ID# 18285 (AAO Aug. 1, 20 16) 
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