dismissed EB-1C Case: Embroidery Machines

MATTER OF S-USA INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 29, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an embroidery and sewing machine company, seeks to employ the Beneficiary as its 
Director under the immigrant multinational executive or manager classification. See Immigration and 
Nationality Act (the Act) § 203(b)(1)(C), 8 U.S.C. § 1153(b)(l)(C). The Director, Nebraska Service 
Center, denied the petition. The matter is not before us on appeal. Upon de novo review, we will 
dismiss the appeal. 
The Director denied the petition, finding that the Petitioner did not establish: (1) that it will employ 
the Beneficiary in a qualifying managerial or executive capacity, and (2) that the foreign entity 
employed the Beneficiary in a qualifying managerial or executive capacity. The Petitioner 
subsequently filed an appeal. On appeal, the Petitioner asserts that it submitted sufficient evidence 
to establish the Beneficiary's executive and managerial role with both companies. 
I. THELAW 
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 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. 
Matter ofS-USA Inc. 
The language of the statute is specific in limiting this provision to only those executives or 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. 
Additionally, the regulations at 8 C.F.R. § 204.5G)(3)(i) state that the petitioner must provide the 
following evidence in support of the petition in order to establish eligibility: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by a 
firm or corporation, or other legal entity, or by an affiliate or subsidiary of 
such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas, in the three years preceding entry as a 
nonimmigrant, the alien was employed by the entity abroad for at least one 
year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which 
the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at least 
one year. 
II. EMPLOYMENT IN A QUALIFYING MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition, finding that the Petitioner did not establish: (1) that it will employ 
the Beneficiary in a qualifying managerial or executive capacity, and (2) that the foreign entity 
employed the Beneficiary in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as 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; 
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Matter of S-USA Inc. 
(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), 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) 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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
101(a)(44)(C) of the Act. 
A. Employment in a Qualifying Managerial or Executive Capacity in the United States 
1. Facts 
The Petitioner filed the petition on October 15, 2014. The Petitioner stated on the Form I-140 that it 
is a wholesale embroidery and sewing machine company with 15 employees and a gross annual 
income of $1,342,271. The Petitioner described the Beneficiary's duties in general terms and stated 
that the Beneficiary would, in part, be responsible for sales and support of embroidery machines in 
North, Central, and South America. 
In the initial filing, the Petitioner submitted an undated organizational chart. The chart lists the 
Beneficiary as Director, overseeing offices in California and Georgia. The chart lists 13 subordinate 
employees performing functions such as embroidery sales and support, accounting, administration, 
and embroidery support. The Petitioner also submitted copies of payroll receipts for the Beneficiary, 
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Matter ofS-USA Inc. 
along with IRS Form 941 Employer Quarterly Tax Statement for the second quarter of 2014 
indicating the Petitioner had 18 employees, and 2013 IRS Form W-2 Wage and Tax statements 
showing 15 employees. 
On March 13, 2015, the Director issued a request for evidence (RFE) requesting evidence of the 
Beneficiary's managerial or executive role with the Petitioner and the foreign entity. The Director 
noted that the Petitioner submitted a vague set of job duties that did not sufficiently explain the 
managerial duties that the Beneficiary will perform in the proffered position. The Director also 
requested additional evidence regarding who will be responsible for the non-qualifying day to day 
tasks of the business. 
In response, the Petitioner submitted a letter providing additional details to the previously 
enumerated duties. The RFE response was accompanied by a letter dated May 4, 2015, from the 
Petitioner indicating that the Beneficiary would manage the company's sales and service teams. The 
letter stated that the Beneficiary's position in the United States would include the following duties 
and percentages of time spent on each duty: 
• (43% of tasks) Guiding, directing and managing the company to provide good 
technical service in the US market as well as Central and South America, 
supporting maintenance and investment, and sales of machine, parts, and 
accessones. 
- He determines the models of production along with each monthly investment. 
- He decides the sales prices of products and services in [the Petitioner]. 
- He analyzes market flow and determines the way the company needs to go. 
- He decides the level of inventory of machines and parts in [the Petitioner]. 
- He makes the decision of placing orders to the factory reflecting on current 
activities and future projection. 
• (19% of tasks) Based on his exclusive knowledge of equipment, characteristics, 
functions, parts, and accessories, he supervises managers and professional staff, 
manages the sales and service teams and evaluates their performance. He also 
possesses the authority to hire and discipline staff as per his own evaluation. 
- He trains managers as well as supervising professional staff using 
professionalism. 
- He generates plans for sales and technical trainings for dealers, distributors 
and contractors. 
- He provides teams with professional knowledge of products and services. 
• (16% of tasks) He has the decision making authority for contracting with dealers 
and distributors. 
- He works to find new dealers and distributors thus evaluating their 
qualifications and determining the level of a potential partnership in terms of 
product prices, support and targets. 
• (1 0% of tasks) He creates and provides exclusive ideas to promote products in 
public through direct mails, web, and trade shows, etc. 
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Matter of S- USA Inc. 
- He decides what trade shows the company will attend in the USA, Central and 
South America. 
- He builds up budgets and investments for promotions in [the Petitioner]. 
- He comes up with ideas to compete with other competitors. 
• (6% of tasks) He helps and gives advice and solutions for the difficulties that 
employees in [the Petitioner] face during their duties. 
• (6% of tasks) He helps with the efficiency in communication between [the 
Petitioner] and its headquarters as one who possesses the most knowledgeable 
about products and markets as well as the overall process of manufacturing, 
service & maintenance. 
The RFE response also included IRS Form 941 Employer Quarterly Tax Statement for the fourth 
quarter of 2014 and the first quarter of 2015, indicating the Petitioner had 17 employees and 16 
employees, respectively. The Petitioner also submitted copies of email correspondence between the 
Beneficiary and customers and company personnel. 
The Director denied the petition on June 19, 2015, noting that the evidence submitted regarding the 
prospective position did not establish that the Beneficiary will primarily perform executive or 
managerial duties. The Director stated that the Petitioner did not explain the duties of the 
subordinate employees and therefore, the Petitioner has not demonstrated that the Beneficiary has 
been or will be relieved of the need to perform the non-qualifying tasks inherent to the duties he 
directs. The Director also noted that the Petitioner did not submit evidence that the Beneficiary will 
supervise or control the work of other supervisory, managerial or professional employees. 
On appeal, the Petitioner contends that the Beneficiary is needed to oversee and direct the major 
functions/goals of the Petitioner. The Petitioner submits additional email correspondence and 
contracts, invoices and agreements in support of the Petitioner's managerial/executive capacity. The 
Petitioner does not specify whether the Beneficiary's position is in a managerial or executive 
capacity, therefore, we will address both definitions. 
2. Analysis 
Upon review, and for the reasons discussed herein, the Petitioner has not established that it will 
employ the Beneficiary in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.P.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. A detailed job description 
is crucial, as the duties themselves will reveal the true nature of the beneficiary's employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajj'd, 905 F.2d 41 (2d. Cir. 1990). 
We will then consider this information in light of other relevant factors, including (but not limited to) 
job descriptions ofthe beneficiary's subordinate employees, the nature ofthe business conducted, the 
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Matter ofS-USA Inc. 
size of the beneficiary's subordinate staff, and any other facts that may contribute to a comprehensive 
understanding of the beneficiary's actual role in the organizational hierarchy of the entity in question. 
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). 
The Petitioner submitted a description of the Beneficiary's duties in response to the RFE which 
included a number of duties that would reasonably be associated with the management of a business; 
however, when these duties are examined more closely, it is clear that the Beneficiary spends a 
significant portion of his time engaged in non-qualifying operational tasks. Specifically, the 
Petitioner states that 62 percent of the Beneficiary's time will be spent guiding, directing and 
managing the company in sales of machine, parts, and accessories and managing the sales and 
service teams. However, the duties enumerated indicate that the Beneficiary will actually be 
performing these sales and client management functions, not overseeing them. Specifically, the 
Beneficiary decides the sales prices of products and services; analyzes market flow; decides the level 
of inventory of machines and places orders to the factory reflecting on current activities and future 
projection. The position description also includes non-qualifying duties such as generating sales 
plans and technical training for dealers; promoting products in public through direct mails, web, and 
trade shows; developing ideas to compete with other competitors; and, working with dealers to 
determine the level of a potential partnership in terms of product prices, support and targets. 
Moreover, the description of the Beneficiary's subordinates' duties does not indicate that the 
subordinates would relieve the Beneficiary from performing the non-qualifying operational and day­
to-day sales and marketing functions that the Beneficiary claims to manage. 
Based on these duties, it is reasonable to conclude that the Beneficiary spends a significant amount 
of his time performing non-qualifying market research and sales activities, having extensive contact 
with the Petitioner's customers. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajj'd, 905 
F.2d 41 (2d. Cir. 1990). While performing non-qualifying tasks necessary to produce a product or 
service will not automatically disqualify a beneficiary as long as those tasks are not the majority of 
the beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary is 
"primarily" performing managerial or executive duties. Section 101(a)(44) of the Act. 
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 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 
Matter ofS-USA Inc. 
discretionary decision-making, the position description alone is insufficient to establish that his 
actual duties, as of the date of filing, would be primarily managerial or executive in nature. 
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. 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. 
Furthermore, although the Beneficiary is not required to supervise personnel, if the Petitioner claims 
that the Beneficiary's duties involve supervising employees, the Petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See section§ 101(a)(44)(A)(ii) 
ofthe Act.1 
In this case, the Petitioner provided a company organizational chart indicating that the Beneficiary 
oversees two offices in the United States with 13 subordinate employees. This is also confirmed by 
the Petitioner's IRS Form W-2s for 2013, showing wages paid to the Beneficiary and the 
subordinates. The Petitioner also submitted brief descriptions of some of the subordinates' roles, but 
did not provide the level of education required to perform the subordinates' job duties or the level of 
education obtained by the subordinates. Thus, the petitioner has not established that these employees 
possess baccalaureate degrees and that their positions require such degrees, such that we can 
consider the employees to be professionals. 
Nor has the Petitioner shown that the Beneficiary's subordinates oversee subordinate staff members 
or manage a clearly defined department or function of the Petitioner, such that they could be 
classified as managers or supervisors. On its organizational chart, the Petitioner claims that at least 9 
of the thirteen positions subordinate to the Beneficiary are "managers;" while in the provided 
descriptions, each staff member is described as either the "manager" or "in charge of' of a 
department. However, none of the subordinate job descriptions list managing, supervising or 
overseeing staff as one of the duties, and the organizational chart shows all of the subordinates 
1 In evaluating whether the beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Section 101 (a)(32) of the 
Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not be limited to architects, engineers, 
lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
The term "profession" contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained 
by a prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite 
to entry into the particular field of endeavor. Matter of Sea, 19 l&N Dec. 817 (Comm'r 1988); Matter of Ling, 13 l&N 
Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.O. 1966). 
Matter ofS-USA Inc. 
reporting to the Beneficiary directly with no intermediate level of supervision or management. 
Therefore, the Petitioner has not shown that the Beneficiary's subordinates could be considered to be 
either managing or supervising personnel. Furthermore, the subordinates' job descriptions indicate 
that they are each managing or are "in charge of' a function of the Petitioner, but, according to the 
organizational chart, there is no remaining staff to perform the actual work of these functions. 
The evidence must substantiate that the duties of the Beneficiary and his subordinates correspond to 
their placement in an organization'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 or manager position. In the present matter, the totality of the record does not 
support a conclusion that the Beneficiary's subordinates are supervisors, managers, or professionals. 
Instead, the record indicates that the Beneficiary's subordinates perform the actual day-to-day tasks 
of performing the duties of customer service and technical support of the sewing and embroidery 
machines. As such, the Petitioner has not provided evidence of an organizational structure sufficient 
to elevate the Beneficiary to a position that is higher than a first-line supervisor of non-professional 
employees. 
In the alternative, the Petitioner has also not established that the Beneficiary will be employed 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)(ii) ofthe Act, 8 U.S.C. § 
1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a 
written job offer that clearly describes the duties to be performed in managing the essential function, 
i.e. identify the function with specificity, articulate the essential nature of the function, and establish 
the proportion of the beneficiary's daily duties attributed to managing the essential function. See 8 
C.F.R. § 204.50)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the 
function. 
Here, the Petitioner states on appeal that it seeks to employ the Beneficiary so that his 
"executive/managerial skills" can "direct and oversee the major functions/goals of [the Petitioner]." 
Whether the Beneficiary is a "function" manager turns in part on whether the Petitioner has 
sustained its burden of proving that his duties are "primarily" managerial. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Here, the Petitioner has not 
established that the Beneficiary's actual duties are within a managerial capacity. Most of the duties 
listed are related to the actual sales or marketing function of the organization rather than 
management of the sales function. For example, the Beneficiary is required to negotiate with 
customers, set product and inventory goals, attend to client needs, develop suppliers and present the 
company's products at specialized industry shows. While it does appear that the Beneficiary will 
also have some discretion over goal setting and policy making, the record does not establish the 
Beneficiary is managing this function, rather than performing the duties associated with the 
Matter ofS-USA Inc. 
marketing and sales functions. Rather, as noted above, the record does not indicate that the 
Petitioner's other staff relieves the Beneficiary from performing the non-qualifying duties. For these 
reasons, the Petitioner has not established that the Beneficiary will be employed as a function 
manager. 
Finally, the Petitioner indicates that the Beneficiary will be employed as an executive. 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. 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." Id. 
Here, the Petitioner emphasizes that the Beneficiary's roll as Director is evidence of his performance 
of qualifying executive duties. However, we do not evaluate a position based on job title alone, and 
as discussed above, the Petitioner's description of the Beneficiary's duties, considered within the 
totality of evidence, does not support a finding that the Beneficiary will primarily focuses on the 
broad goals and policies of the organization, rather than on the day-to-day operations. 
We acknowledge that the Beneficiary is the one of the highest-level employees of the U.S. entity; 
however, as noted above, this alone is not sufficient to establish that she will be primarily employed 
in an executive or managerial capacity. The designation hinges on whether or not the Petitioner 
demonstrates that it has the requisite level of subordinate staff capable of carrying out the duties 
associated with the day to day operation of the business. In this case, incorporating our earlier 
discussion of the deficiencies of the job description provided and the lack of evidence regarding the 
entity's organization structure, we find that the Petitioner has not established that the U.S. business 
has an organizational structure sufficient to employ the Beneficiary in a position that is primarily 
executive in nature or that the Petitioner has sufficient subordinate staff to relieve the Beneficiary of 
non-qualifying duties. For the reasons discussed above, we find that the Petitioner has not 
established that Beneficiary will be employed as an executive. 
We note that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See§ 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). 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 
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Matter of S-USA Inc. 
469 F. 3d 1313, 1316 (91h 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 41, 42 (2d Cir. 1990)(per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). 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, 15 (D.D.C. 
2001). 
We acknowledge that USCIS had approved an L-IA classification petition filed on behalf of the 
Beneficiary prior to denying the instant immigrant petition. Each visa petition filing is a separate 
proceeding with a separate record and a separate burden of proof. In making a determination of 
statutory eligibility, USCIS is limited to the information contained in that individual record of 
proceeding. See 8 C.F .R. § 103 .2(b )(16)(ii). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
In sum, as the Petitioner has not provided a sufficiently detailed description of the Beneficiary's 
managerial or executive duties or described how he is alleviated from the day to day operations of 
the business, the totality of the evidence in the record is insufficient to establish that the Beneficiary 
will be employed in a qualifying managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
B. Employment in a Qualifying Managerial or Executive Capacity Abroad 
1. Facts 
At the time of filing, the Petitioner stated that the Beneficiary was a "Senior Manager" of the parent 
company and provided a description of the duties the Beneficiary performed for the foreign entity 
prior to his admission to the United States. The Petitioner stated that the Beneficiary was 
responsible for the following: 
• In charge of sales and marketing management for overseas distributors and 
dealers in the Americas, established monthly sales plan and annual business plan 
with [the Petitioner] and relevant agents, managed PO and delivery schedule. 
• In charge of sales and marketing for Indian market and Turkey market for the 
support of sales agents in India. Overseas business trip for promotion and 
exhibition support, managing PO and delivery schedule. 
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(b)(6)
Matter of S-USA Inc. 
The Director issued a request for evidence (RFE) on March 13, 2015, requesting additional 
information and evidence regarding the Beneficiary's employment abroad. Specifically, the 
Director requested a letter from the foreign entity detailing the Beneficiary's role, specific tasks 
along with time spent on each task, a list of employees including their duties, educational level, 
payroll records and organizational charts detailing the Beneficiary's role with the foreign 
organization. 
The Petitioner submitted a response to the RFE on May 11, 2015. Included with the response was a 
certificate of income that lists the Beneficiary's wage and salary from 2008 through 2013. The 
Petitioner also submitted a letter dated May, 5, 2015, from the foreign entity that detailed the 
Beneficiary's duties in his role as "Team Head of Overseas Sales Dept. 1 in the Marketing 
Division." In the letter, the Petitioner described the Beneficiary's duties abroad and percentages of 
time spent on each duty as follows: 
1. Team Leader (43% ofhis tasks) 
- He performed as the head of sales and marketing team working for North & 
Central & South American countries in the headquarter of (3.5 
hrs daily) 
- Based on his professional and extensive experience in the embroidery and 
sewing industry, he gave staff tasks and duties in order to achieve target goals. 
(5.5 hours per a week) 
- He provided ultimate solutions when his staff needed him for professional 
advice and assistance when they encountered difficulties during their work, 
working with customers, overseas agents and overseas branch offices. ( 4.0 
hours per a week) 
- He established sales plans and strategies by implementing market research and 
analysis. (3.0 hours per a week) 
- He managed and supported [the Petitioner] from the headquarter [sic] in 
Korea by providing them with technical and strategic information along with 
targets and goals. (2.5 hours per a week) 
- He communicated with [the Petitioner] daily to coordinate activities and 
performance. (2.5 hours per a week) 
2. He attended numerous board meetings between companies held by the Chairman 
and President (18%, 1.5 hrs daily) 
[T]o report on team & branches performance and discuss market 
circumstances (6.0 hrs per week) 
[T]o review and evaluate achievements make by [the Petitioner] (1.5 hrs per 
week). 
3. He was involved in the development and improvement of products reflecting on 
feedback that came from the overseas branches including the corporation, 
[the Petitioner] (4.0 hrs per week) 
- He provided 
relevant data and results to customers and [the Petitioner] (1.5 
hrs per week) 
I I 
(b)(6)
Matter ojS-USA Inc. 
4. Participated in major international trade shows. (1 0%, 0.8 hrs daily) 
- He organized and successfully led international trade shows such as the 
held in California every year. ( 4.0 hrs per week) 
and 
- He generated sales and enhanced brand reputation against competitors in the 
market. (traveled two weeks every quarter) 
5. He coordinated communication among divisions regarding sales and service 
issues (6%, 0.5 hrs daily) 
- He held regular meetings with concerned division heads regarding issues that 
occurred. (2.5 hours per week) 
6. He anticipated future needs and sales to place orders with production lines and 
allocated them via overseas corporations. (8%, 0.8 hrs. daily) 
- In addition, he performed various important duties during his period in 
headquarters. (3.0 hrs per week) 
The Petitioner also submitted an organizational chart showing the structure of the Korean entity. The 
chart depicts the Marketing Division with three overseas sales departments, including one led by the 
Beneficiary. The chart shows that the Beneficiary oversaw two teams, the "America Team" and the 
"Asia 1 Team," each with two employees. In tum, the America Team oversaw the petitioning 
organization and the Asia 1 Team oversaw the "India Branch" and "Pakistan Branch." 
The Director denied the petition, concluding that the Petitioner did not establish that the foreign 
entity employed the Beneficiary in a qualifying managerial or executive capacity. In denying the 
petition, the Director found that the Petitioner did not provide specifics regarding what the 
Beneficiary did on a day-to-day basis. Further, the Director observed that the record did not show 
that the foreign entity had sufficient personnel to relieve the Beneficiary from day-to-day marketing 
activities and that the Petitioner did not describe the duties of the subordinate employees or provide 
sufficient supporting evidence of their employment. 
On appeal, the Petitioner asserts that the Beneficiary was "employed abroad in a managerial or 
executive capacity for at least one year in the relevant three-year period." 
2. Analysis 
Upon review, the Petitioner has not established that the Beneficiary was employed by the foreign 
entity in a qualifying managerial or executive capacity. 
As noted above, when examining the executive or managerial capacity of a given position, we 
review the totality of the record, starting first with the description of the beneficiary's proposed job 
duties with the petitioning entity. See 8 C.F.R. § 204.5G)(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 
12 
Matter ofS-USA Inc. 
contribute to a comprehensive understanding of the beneficiary's actual duties and role within the 
petitioning entity. 
In addition, while performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify the beneficiary as long as those tasks are not the majority of the 
beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary 1s 
"primarily" performing managerial or executive duties. See Section 101(a)(44) of the Act. 
In this case, the explanation of the duties describing the Beneficiary's role with the foreign entity 
shed little light on what the Beneficiary did on a day-to-day basis at the foreign company. 
Statements such as "gave staff tasks and duties in order to achieve target goals," "established sales 
plans and strategies by implementing market research and analysis," and "provided ultimate 
solutions when his staff needed him," do not describe identifiable 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 her/his daily 
routine. 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), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
The foreign company also did not include position descriptions for subordinate positions that would 
shed light upon how these subordinates relieve the Beneficiary from performing non-qualifying day­
to-day functions of the business. Without specific job descriptions and documentary evidence of the 
employees performing the non-qualifying functions, it is unclear exactly how the Beneficiary 
performed in primarily a managerial or executive role. This lack of specificity is important because 
many of the stated duties for the Beneficiary include supervision of staff or consulting with staff. 
Without detailed descriptions of the staffs role, it is unclear whether the Beneficiary is performing 
qualifying managerial duties. Moreover, the organizational chart lists personnel as "sales 
managers," "promotion rep documentation" and "shipping & Docs;" however, it is unclear who 
performs the marketing, administrative and maintenance functions of the business that the 
Beneficiary is said to oversee. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." Furthermore, the statutory definition of specifies that supervisory duties are 
not managerial unless the employees supervised are, themselves, supervisors, managers, or 
professionals. While the organizational chart submitted does list workers directly reporting to the 
Beneficiary, the record lacks sufficient evidence to demonstrate that they were employed at the same 
time as the Beneficiary, as the only submitted organizational chart is undated. Furthermore, the 
Petitioner has not submitted sufficient evidence regarding the skills or educational background of the 
subordinate employees or the level of education required to perform the duties of the subordinate 
positions. The organizational chart lists "Bachelor's degree full-time," for the employees of the 
America team and Asia 1 Team; however, it is unclear whether this means that a Bachelor's degree 
is required for the position or if the employee in the role has the degree. The Petitioner did not 
submit diplomas or educational degrees for any employee. Therefore, we cannot conclude that the 
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Matter of S- USA Inc. 
Beneficiary's subordinates were professionals. Moreover, while the Beneficiary claims to have 
supervised staff, the record does not contain evidence of the Beneficiary's control over subordinate 
employees or documentation concerning his ability to hire and fire such staff. The record also does 
not contain evidence that the claimed subordinate staff performed supervisory or managerial duties. 
As such, the Petitioner has not established that the Beneficiary was employed as a personnel 
manager. 
In the alternative, the Petitioner has also not established that the Beneficiary was employed 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)(ii) of the Act, 8 U.S.C. § 
1101(a)(44)(A)(ii). In this case, the Petitioner has not asserted that the Beneficiary was employed as 
a function manager abroad and has not identified an "essential function" for which the Beneficiary 
was responsible. As such, the evidence in the record does not establish that the Beneficiary was 
employed as a function manager. 
Finally, the evidence submitted does not establish that the Beneficiary served the foreign entity in an 
executive capacity. As noted, 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. 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. 
The Petitioner describes the Beneficiary's role as Director, reporting to the managing partner. 
However, the record does not contain evidence documenting the Beneficiary's claimed "wide 
latitude in decision making" or examples of him performing executive functions for the company. 
Incorporating our earlier discussion of the deficiencies of the job description provided and the lack 
of information regarding the claimed subordinates, we find that the Petitioner has not established 
that the Beneficiary was employed in a position that was primarily executive in nature or that the 
foreign entity had sufficient subordinate staff to relieve the Beneficiary of non-qualifying duties. 
For the reasons discussed above, we find that the Petitioner has not established that Beneficiary was 
employed as an executive. 
Also, the record contains several inconsistencies regarding the Beneficiary's managerial role abroad. 
First, in the initial filing dated September 28, 2014, the Petitioner indicated, "before [the 
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Matter of S-USA Inc. 
Beneficiary] came to the United States in the position of director as L-1A visa status last November 
2014, his last position was a Senior Manager in charge of sales and marketing of Western Europe in 
Korea." 
However, the Beneficiary's resume indicates that he was responsible for sales of Western Europe in 
2008, and his position prior to his transfer to the United States was "Team Manager for North & 
Central & South American countries." Furthermore, in a letter dated May 5, 2015, the Petitioner 
states that the Beneficiary was employed from January 2008 until December 2013 as Team Head of 
Overseas Sales Dept. 1 in the Marketing Division. Given the inconsistent job titles and regions of 
responsibility, we are unable to discern the Beneficiary's exact job title or area of responsibility and 
cannot, therefore, conclude that his position was managerial or executive as described by the 
regulations. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
As the record does not contain sufficient evidence of the foreign entity's staffing levels and 
organizational structure during the relevant time period, and as the Petitioner's description of the 
Beneficiary's duties with the foreign entity alone is insufficient to establish his eligibility, the 
Petitioner has not established by a preponderance of the evidence that the Beneficiary was employed 
in a managerial or executive capacity abroad. For this additional reason, the appeal will be 
dismissed. 
III. 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, 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, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fS-USA Corp., ID# 15748 (AAO Feb. 29, 2016) 
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