dismissed EB-1C Case: Engineering

MATTER OF S-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 24, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an engineering project company, seeks to permanently employ the Beneficiary as its 
president and general manager 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 and issued a finding of willful 
misrepresentation of a material fact. The matter is now before us on appeal. Upon de novo review, 
we will dismiss the appeal, and the finding of willful misrepresentation of a material fact will be 
withdrawn. 
I. 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 ifthe alien, in the 3 years preceding the time ofthe 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: 
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 
(b)(6)
Matter of S-, Inc. 
or executive capacity. Such letter must clearly describe the duties to be performed by 
the alien. 
II. ISSUES ON APPEAL 
The Director denied the petition on two grounds: first, that the Petitioner did not establish that the 
Beneficiary worked for the foreign parent company in a qualifying managerial or executive capacity; 
and, second, that the Petitioner did not establish that it seeks to employ the Beneficiary in the United 
States in a qualifying managerial or executive capacity. The finding of misrepresentation derived from 
an apparent contradiction in the Beneficiary's claims regarding her employment history. 
A. Managerial or Executive Capacity Abroad 
The first question is whether the Beneficiary worked in a qualifying managerial or executive 
capacity for the Petitioner 's foreign parent company, . (often 
abbreviated as ), for at least one year during the three years preceding her entry into 
the United States on February 24, 2007. 
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 m 
which the employee primarily-
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Matter of S-, Inc. 
(i) directs the management of the organization or a maJor component or 
function ofthe organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. Section 101(a)(44)(C) of the Act. 
1. Facts 
The Petitioner filed Form I-140 on April 23, 2012. The petition included a letter dated March 18, 
2012, with the following description of the Beneficiary's duties with the foreign parent company. 
The Petitioner indicated that the Beneficiary "was working with the abroad company ... [l]ike a 
CEO [chief executive officer]." The percentage figures refer to the approximate amount of time that 
the Beneficiary devoted to each of the duties specified: 
• Direct and coordinate an organization's financial and budget act1v1t1es to fund 
operations, maximize investments, and increase efficiency. ( 1 0%) 
• Confer with board members, organization officials, and staff members to discuss 
issues, coordinate activities, and re.solve problems. (1 0%) 
• Analyze operations to evaluate performance of a company and its staff in meeting 
objectives, and to determine areas of potential cost reduction, program improvement, 
or policy change. (10%) 
• Direct, plan, and implement policies, objectives, and activities of organizations or 
businesses to ensure continuing operations, to maximize returns on investments, and 
to increase productivity. (15%) 
• Prepare budgets for approval, including those for funding or implementation of 
programs. (5%) 
• Direct and coordinate activities of businesses or departments concerned with 
production, pricing, sales, or distribution of products. (10%) 
• Negotiate or approve contracts and agreements with suppliers, distributors, state 
agencies, and other organizational entities. (10[%]) 
• Review reports submitted by staff members to recommend approval or to suggest 
changes. (1 0%) 
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(b)(6)
Matter of S-, Inc. 
• Appoint department heads or managers and assign or delegate responsibilities to 
them. (10%) 
• Direct human resources activities, including the approval of human resource plans or 
activities, the selection of directors and other high-level staff, and establishment and 
organization of major departments. (10%) 
The Petitioner stated that the Beneficiary's subordinates abroad included a president, an administrative 
manager, a logistic manager, and a marketing manager. The Petitioner stated that the Beneficiary "had 
authority to recruit, hire, train, promote and terminate his staff even the President" (sic). 
The Director issued a request for evidence (RFE) on June 29, 2013. The Director requested "a 
definitive statement from the foreign company" to describe the Beneficiary's former position and 
establish that it qualified as either managerial or executive. 
In response, the Petitioner submitted a letter dated September 19, 2013, from chairman 
of the foreign company's board of directors . Most of the letter is copied from the Petitioner 's earlier 
letter of March 18, 2012, including the percentage breakdown of duties and the assertion that the 
Beneficiary "had authority to recruit, hire, train, promote and terminate his staff even the president " 
(sic). The Petitioner also submitted an unattributed list of "Jobs and Descriptions" for the foreign 
company. The listing for CEO reads: 
• Effective communication 
• Understanding of the business and its impact in the technology decisions 
• Strategic, tactic and operative planning 
• Technology options knowledge 
• Negotiation (with providers and sub-contractors) 
• Recognizing and respecting its colleges [sic] and sub-contractors 
• Technical abilities 
The organizational chart for the foreign entity showed the following structure: 
President/Chairman 
CEO [the Beneficiary] 
Administration Logistics Marketing and Sales 
In a letter dated March 21 , 2012, formerly administration manager for the foreign 
company (and the Beneficiary's successor as CEO), stated: 
[The Beneficiary] juggled literally hundreds of items, making their jobs easier 
and, by extension, helping ... us and the Corporation to increase productivity and sales 
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(b)(6)
Matter of S-, Inc. 
by 18 percent in 2006. While at she implemented a new spreadsheet 
system that resulted in a much smoother process from sales to delivery. At first, the 
management resisted the idea of doing things differently, but [the Beneficiary] was so 
adept at communicating her vision that it was ultimately adopted and embraced. 
The Director denied the petition on April28, 2015, concluding that the Petitioner had not established 
that the Beneficiary served the foreign company in a qualifying managerial or executive capacity for 
at least one year during the three years preceding her entry as a nonimmigrant. The Director 
concluded that the percentage breakdown of the Beneficiary's duties "established that the 
beneficiary is more of a supervisor," and that the Petitioner had not established that the Beneficiary's 
former subordinates abroad were professional, managerial, or supervisory employees. 
On appeal, the Petitioner states that it had submitted an adequate description of the Beneficiary's 
duties abroad, and therefore the denial is unwarranted. 
2. Analysis 
For the reasons discussed below, we find that the Petitioner has not established that the Beneficiary 
worked in a qualifying managerial or executive capacity for the foreign employer. 
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). 
When examining the executive or managerial capacity of the beneficiary, we will look first to the 
petitioner's description of the job duties. See 8 C.P.R. § 204.5(j)(5). 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. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). 
The Petitioner, on appeal, contends that the director "jump[ ed] to the conclusion" "without any 
meaningful analysis whatsoever." The Petitioner also states that "[t]he description of the duties is 
not vague. On the contrary [it] is very detailed." 
The Director, in the denial notice, had not stated that the Beneficiary's foreign job description was 
vague or lacking in detail (although the Director came to such a finding regarding the Beneficiary's 
work in the United States). 
Rather, the Director concluded that the foreign job description appeared 
to be that of a supervisor rather than a manager or executive. Nevertheless, the record does not 
support the assertion on appeal that the Petitioner provided a "very detailed" description of the 
Beneficiary's former duties for the foreign company. 
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Matter of S-, Inc. 
The Petitioner's response to the Notice oflntent to Deny (NOID) issued on April29, 2014, included 
a May 30, 2014, printout from O*Net OnLine, a website sponsored by the U.S. Department of 
Labor, Employment and Training Administration. The printout shows a "Summary Report" for 
chief executives, and a list of tasks. The list of tasks on the O*Net printout is virtually identical to 
the first version of the Beneficiary's foreign job description. In the same way that the Petitioner 
cannot simply repeat the regulatory or statutory definitions of managerial or executive capacity, 
repeating the task list from the O*Net printout does not establish that the Beneficiary performs those 
tasks, nor does it provide any job-specific information about the Beneficiary's position with the 
foreign entity. The second list of duties, submitted in response to the RFE, is primarily a list of traits 
(such as "[e]ffective communication") rather than specific duties. 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 provided insufficient 
details regarding the Beneficiary's activities in the course of her daily routine with the foreign entity. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. at 1108. 
The Petitioner contends that during her employment abroad, the Beneficiary was positioned at the 
top of the organizational hierarchy, and had the authority to recruit, hire, train, promote, and 
terminate her entire staff. Although the beneficiary is not required to supervise personnel, if the 
petitioner claims that the beneficiary's duties involve supervising employees, then the petitioner 
must establish that the subordinate employees are supervisory, professional, or managerial. See 
section 101(a)(44)(A)(ii) of the Act. The descriptions for the Beneficiary's foreign subordinates, 
like the Beneficiary's own job description, lack specific information about the company's business, 
and appear to derive from third-party templates. For example, in the introductory letter of March 18, 
2012, the Petitioner stated that the president was responsible to "[ o ]versee activities directly related 
to making products or providing services," and "[d]etermine staffing requirements, and interview, 
hire and train new employees, or oversee those personnel processes." These are not specific duties. 
Rather, they are ranges of potential duties, as shown by the conjunction "or." Absent additional 
details regarding the nature of the duties associated with the positions of the subordinate employees, 
we cannot determine their role within the organization. The Director, in the denial notice, observed 
that the U.S. company and the foreign company used the same job description for the administrative 
manager, and that the job descriptions for the marketing managers are also identical. These 
similarities tend to support a finding that the job descriptions are general in nature, rather than 
showing details specific to one particular position. (The Petitioner has not claimed that the foreign 
entity and the petitioning U.S. employer are similar to the point of being identical, and requiring 
identical services from their identified staff.) Due to these generalized overviews ofthe positions of 
the Beneficiary's subordinate employees, we are precluded from finding that they act in a 
supervisory or managerial capacity. 
The Director's decision, however, is not free from error. For instance, the Director stated that the 
foreign company's organizational chart did not include the Beneficiary, and therefore the Director 
"could not conclude her hierarchy [sic] within the company." The record, however, contains more 
than one version of the foreign entity's organizational chart. The version without the Beneficiary's 
Matter of S-, Inc. 
name is marked as the "current" version. We would not expect the Beneficiary's name to be on the 
foreign company's current organizational chart, because she left Venezuela several years ago. The 
earlier version, with the heading "Organizational Before Chart" (sic), shows the Beneficiary's name 
and title (as discussed above). That chart, however, ranks the president above the CEO, which 
appears to contradict the claim that the Beneficiary, as CEO, had the authority to fire the president of 
the company. Therefore, while the Director's assertions are, at times, incorrect or unsupported by 
the record, review of the overlooked evidence does not strengthen the Petitioner's case. 
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." Although the Petitioner 
contends that the foreign subordinates holds various levels of degrees in the fields of economics, 
computation, and administration, the lack of detail with regard to the nature of their positions renders 
it impossible for us to determine whether the positions actually require such degrees as prerequisites 
for entry. 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 Cal~fornia, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). 
For the reasons discussed above, we find that the Petitioner has not met its burden of proof to 
establish that the Beneficiary worked in a qualifying managerial or executive capacity for the foreign 
parent company. For this reason, we cannot approve the petition. 
B. Managerial or Executive Capacity in the United States 
The second issue under consideration is whether the Petitioner has established that it seeks to 
employ the Beneficiary in a qualifying managerial or executive capacity in the United States. 
1. Facts 
The Petitioner's introductory letter of March 18, 2012, referred to the Beneficiary as general 
manager of the petitioning company, but also stated that she "is the President and General Manager 
of the US company." The letter included the following list of the Beneficiary's "duties in general" 
as the Petitioner's general manager: 
• Plans, coordinates, and controls the daily operation of the organization through the 
organization's managers. 
• Establishes current and long range goals, objectives, plans and policies, subject to approval 
by the Board of Directors. 
• Dispenses advice, guidance, direction, and authorization to carry out major plans, standards 
and procedures, consistent with established policies and Board approval. 
(b)(6)
Matter of S-, Inc. 
• Meets with organization's other executives to ensure that operations are being executed in 
accordance with the organization's policies. 
• Oversees the 
adequacy and soundness of the organization's financial structure. 
• Reviews operating results of the organization, compares them to established objectives, and 
takes steps to ensure that appropriate measures are taken to correct unsatisfactory results. 
• Plans and directs all investigations and negotiations pertaining to mergers, joint ventures, the 
acquisition of businesses, or the sale of major assets with approval of the Board of Directors. 
• Establishes and maintains an effective system of communications throughout the 
organization. 
• Represents the organization with major customers, shareholders, the financial community, 
and the public. 
The Petitioner's letter indicated that the Beneficiary has three immediate subordinates, each with an 
assistant: 
• Administrative manager 
• Administrative assistant 
• Marketing and sales manager 
• Sales assistant 
• Logistics manager 
• Logistics 
assistant 
In the June 29, 2013 RFE, the Director noted the small size of the Petitioner's claimed staff (seven 
employees) and requested additional details about the Beneficiary's position to show that it qualifies 
as either managerial or executive. 
In response, in a letter dated September 15, 20 13, from the parent company repeated 
the same list of duties that had accompanied the initial submission, and also provided a breakdown 
of the hours the Beneficiary devotes to various tasks on a weekly basis, summarized below: 
5 hrs. 
7.5 hrs. 
5.5 hrs. 
5.5 hrs. 
8 hrs. 
1.5 hrs. 
1 hr. 
1.5 hrs. 
0.5 hr. 
1 hr. 
2 hrs. 
1 hr. 
Answer e-mails and messages 
Meeting to coordinate with Administrative Manager 
Conference call with [foreign] Company office in Venezuela 
Lunch and cafe break 
Appointments with customers or provider representatives 
Meeting with Logistics Manager 
Meeting with subcontracted transport company 
Analyze financial and bank statements 
Check the sales forecast 
Search by internet to get more providers in Canada and United States 
Meeting with new prospective ventures representative 
Conference call with clients in Venezuela 
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Matter of S-, Inc. 
The Petitioner submitted an organizational chart which showed the same organizational structure 
described in the Petitioner's letters submitted with the petition and in response to the RFE, with the 
Beneficiary overseeing three managers, each with a subordinate assistant. The Petitioner submitted 
copies of IRS Forms W-2, Wage and Tax Statements, showing that the company employed eight 
people during 2012 and paid them as follows (job titles correlated from organizational charts): 
President 
Administration Manager 
Administration Assistant 
Marketing and Sales Manager 
Sales Assistant 
Logistics Manager 
Logistics Assistant ( 1) 
Logistics Assistant (2) 
$30,000 
2,880 
15,360 
17,280 
7,680 
14,400 
15,360 
15,360 
In the April29, 2014 NOID, the Director stated that the Petitioner had not established the managerial or 
executive nature of the Beneficiary's position with the company. The Director noted the Petitioner's 
"limited number of employees" and found that the Petitioner had not established that the employees 
were professionals, managers, or supervisors. 
In response, the Petitioner asserted in a letter dated May 30, 2014: "The Beneficiary supervises at least 
2 employees that are supervisory, managerial or ex[e]cutive," specifically the administrative manager 
and the marketing and sales manager. The Petitioner stated that the previously submitted job 
descriptions for the two positions demonstrated "their executive and professional capacity." Those two 
descriptions read as follows: 
Administrative Manager 
• Monitor the facility to ensure that it remains safe, secure, and well-maintained. 
• Direct or coordinate the supportive services department of a business, agency, or 
organization. 
• Set goals and deadlines for the department. 
• Prepare and review operational reports and schedules to ensure accuracy and 
efficiency. 
• Analyze internal processes and recommend and implement procedural or policy 
changes to improve operations, such as supply changes or the disposal of records. 
• Acquire, distribute and store supplies. 
• Plan, administer, and control budgets for contracts, equipment, and supplies. 
• Oversee construction and renovation projects to improve efficiency and to ensure 
that facilities meet environmental, health, and security standards, and comply with 
government regulations. 
• Hire and terminate clerical and administrative personnel. 
• Oversee the maintenance and repair of machinery, equipment, and electrical and 
mechanical systems. 
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Matter of S-, Inc. 
Marketing and Sales Manager 
• Resolve customer complaints regarding sales and service. 
• Oversee regional and local sales and his staff. 
• Plan and direct staffing, training, and performance evaluations to develop and 
control sales and service programs. 
• Determine price schedules and discount rates. 
• Review operational records and reports to project sales and determine profitability. 
• Prepare budgets and approve budget expenditures. 
• Confer or consult with department heads to plan advertising services and to secure 
information on equipment and customer specifications. 
• Direct and coordinate activities involving sales of manufactured products, services, 
or other subjects of sale. 
• Confer with potential customers regarding equipment needs and advise customers on 
types of goods purchase [sic]. 
• Formulate, direct and coordinate marketing activities and policies to promote 
products and services, working with advertising and promotion managers . 
• Identify, develop, and evaluate marketing strategy, based on knowledge of 
establishment objectives, market characteristics, and cost and markup factors. 
• Direct the hiring, training, and performance evaluations of marketing and sales staff 
and oversee their daily activities. 
• Evaluate the financial aspects of product development, such as budgets, 
expenditures, research and development appropriations, and return-on-investment 
and profit-loss projections. 
• Develop pricing strategies, balancing firm objectives and customer satisfaction. 
• Compile lists describing product or service offerings. 
• Initiate market research studies and analyze their findings. 
• Use sales forecasting and strategic planning to ensure the sale and profitability of 
products, lines, or services, analyzing business developments and monitoring market 
trends. 
• Coordinate and participate in promotional activities and trade shows, working with 
developers, advertisers, and production managers, to market products and services. 
• Consult with buying personnel to gain advice regarding the types of products or 
services expected to be in demand. 
In the denial notice, the Director stated that "[t]he petitioner established that the beneficiary is more of a 
supervisor and did not paint a clear picture that the beneficiary is performing managerial duties but 
rather operational duties." The Director also stated that the listed duties "suggest a general sense of the 
beneficiaries [sic] heightened degree of discretionary authority but ... fail to convey an understanding 
of what the beneficiary would actually be doing on a daily basis." Noting the 2012 IRS Forms W-2 in 
the record, the Director noted that most of the Petitioner's employees received very low wages, not 
consistent with full-time professional, managerial, or supervisory staff. 
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Matter of S-, Inc. 
On appeal, the Petitioner repeats statements first made in response to the NOID, and adds this passage: 
The Beneficiary's detail[ed] breakdown of her duties DOES NOT include day to day 
operations tasks [sic]. On the contrary, it includes task[s] that require her total discretion 
and expertise. As stated in the original documents submitted with Form I-140, the 
Beneficiary has total discretion and authority to act on behalf of the Petitioner. The 
Service's decision seems to be arbitrary like if they had made up their mind from the 
beginning. The Service's decision lacks a true independent analysis. 
(Emphasis in original.) 
2. Analysis 
For the reasons discussed below, the Petitioner has not established that it seeks to employ the 
Beneficiary in a qualifying managerial or executive capacity. The case law cited above with respect 
to the Beneficiary's earlier employment abroad also applies to her intended work in the United 
States. 
The job descriptions submitted for the Beneficiary and her subordinates appear to be generalized 
templates without specific reference to the Petitioner's particular business activities. The 
Beneficiary's own job description indicates that the Beneficiary "[p]lans and directs all 
investigations and negotiations pertaining to mergers, joint ventures, the acquisition of businesses, or 
the sale of major assets." The record, however, does not show any evidence of mergers, joint 
ventures, or acquisitions, and the Petitioner's income tax returns do not show any non-monetary 
assets for which the Beneficiary would need to negotiate sales. 
The Petitioner asserted that some of the administrative manager's tasks are to "[ m ]onitor the facility 
to ensure that it remains safe, secure, and well-maintained," to "[ o ]versee the maintenance and repair 
of machinery, equipment, and electrical and mechanical systems," and to "[ o ]verse construction and 
renovation projects." The Petitioner, however, has not established that it has any facility or systems 
that require such maintenance or renovation. The record shows that the Petitioner rents a virtual 
office, and that the Beneficiary works out of her home. Under those circumstances, the Petitioner 
has not shown how oversight of "maintenance and repair" and "construction and renovation 
projects" could represent major job duties for the administrative manager. The statement that the 
administrative manager must "[ d]irect or coordinate the supportive services department of a 
business, agency, or organization" has the appearance of a generalized template rather than a specific 
job description tailored to a particular position. 
As discussed previously, if the beneficiary's duties involve superv1smg employees, then the 
petitioner must establish that the subordinate employees are supervisory, professional, or managerial. 
See section 101(a)(44)(A)(ii) of the Act. Similar to the position descriptions for the foreign 
subordinates, the description of duties for the U.S. subordinate positions are likewise vague and 
provide little insight on the nature of the roles of these individuals within the organizational 
hierarchy. As noted, the position descriptions for the administrative manager and the marketing 
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Matter of S-, Inc. 
manager both in the U.S. and abroad are virtually identical, therefore raising questions regarding the 
legitimacy of the claimed duties. The minimal information provided for these positions, as well as 
for the other employees who claim to be directly or indirectly subordinate to the Beneficiary, 
prohibits us from fully understanding the nature of the claimed organizational structure. 
Consequently, we are unable to determine whether the Beneficiary is supervising a subordinate staff 
of managers or supervisors such that she would be elevated to a position that is primarily managerial 
or executive in nature. 
In addition, there is insufficient evidence to establish that the Beneficiary is superv1smg a 
subordinate staff of professional employees. Again, while the Petitioner contents that four of the 
seven subordinate employees hold degrees in disparate areas including industrial engineering, 
international economic relations, commercial engineering, and fashion design, the record contains no 
evidence to demonstrate that their positions within the Petitioner's organization require these 
degrees. For instance, while the administration assistant holds a degree in fashion design, there is no 
evidence demonstrating that such a degree was a prerequisite for her position. The lack of evidence 
regarding the educational requirements for these positions, coupled with the vague descriptions of 
the duties of these positions, renders it impossible for us to determine whether the Beneficiary's 
claimed subordinates are professionals. 
The Petitioner, therefore, has not established the actual nature of the Beneficiary's duties or those of 
her subordinates. Without this required information, we cannot conclude that the Petitioner has 
shown that the Beneficiary qualifies as a manager or executive. 
The Director, in the denial notice, indicated that the Petitioner's salary figures did not indicate that 
the company has a full-time staff sufficient to relieve the Beneficiary from having to perform 
operational tasks. The Petitioner, on appeal, does not address this finding. 
Review of the record supports the Director's concerns. The Director noted that, in 2012, the 
minimum wage in Florida was $7.67 per hour. 1 Assuming the standard work schedule of eight hours 
per weekday, there were 2,088 work hours in 2012. Therefore, a full-time minimum wage employee 
in Florida would have earned $16,014.96 in 2012. All but one of the Beneficiary's subordinates 
earned less than that amount during that year, and the remaining employee (the marketing and sales 
manager) exceeded it by less than eight percent. Therefore, the record does not show that the 
Beneficiary had a full-time staff in 2012 that was available throughout the day to relieve the 
Beneficiary from performing non-qualifying operational tasks. 
For the above reasons, we find that the Petitioner has not established that it has employed, or will 
employ, the Beneficiary in a qualifying managerial or executive capacity. Therefore, we cannot 
approve the petition. 
1 
See "Florida Minimum Wage History 2000-2013," available from the Florida Department of Economic Opportunity at 
http://www.tloridajobs.org/minimumwage/FioridaMinimum WageHistory2000-20 13.pdf (added to record February 17, 
2016). 
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(b)(6)
Matter of S-, Inc. 
C. Willful Misrepresentation of a Material Fact 
Beyond the grounds for denial of the petition, the Director entered a finding of willful 
misrepresentation of a material fact. This finding arose from purported discrepancies between the 
Beneficiary's resume and information that she provided on Form G-325A, Biographic Information, 
executed in April 2009. In the NOID, the Director stated: "On the beneficiary's resume she 
indicated that she was the President of from January 2, 2004 to present. The beneficiary's 
G-325 indicates she was the CEO of [sic] from July 2001 to present." The Director 
concluded that the Beneficiary had, therefore, "misrepresented her employment history in order to 
obtain immigration benefits." The Director later repeated this conclusion in the denial notice. 
We cannot find any resume for the Beneficiary matching the above description in the record. The 
record of proceeding for a prior filing does, however, contain a resume for indicating 
that she, not the Beneficiary, became president of the foreign entity on January 2, 2004. This is 
consistent with the record of proceeding in the present proceeding, which consistently refers to 
as the president of the foreign entity. The Director appears to have mistaken 
resume for the Beneficiary's resume, perhaps owing to their shared surname. 
The perceived conflict between the resume and the Form G-325 was the only stated basis for the 
finding of misrepresentation. There is, however, no conflict, because the two documents pertain to 
two different individuals. We therefore withdraw the finding of willful misrepresentation of a 
material fact. The other grounds for denial, however, remain, and for this reason we must dismiss 
the appeal. 
III. 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 ofS-, Inc., ID# 15662 (AAO Mar. 24, 2016) 
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