dismissed EB-1C Case: Food Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-F-INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 22. 20 IS 
PETITION: FORM 1-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. identified as a food importer and distributor. seeks to permanently employ the 
Beneficiary as its president under the first preference immigrant classification tor multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(I )(C). 
8 U .S.C. § 1153(b)(l )(C). This classification allows a U.S. employer to pennancntly transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition. with a finding that the Petitioner had 
misrepresented the Beneticiar:(s employment experience. The Director also concluded that the 
record did not establish. as required. that: (I) the Petitioner has an ongoing qualifying relationship 
with the Bcncticiary·s foreign employer: (2) the Petitioner is still doing business: and (3) the 
Beneficiary will be employed in the United States in a managerial or executive capacity. 
On appeal. the Petitioner submits additional evidence and asserts that it has met its burden of proof. 
Upon de novo review. we will dismiss the appeal and atlirm the Director's finding of willful 
misrepresentation of a material fact. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who. in the three years preceding the filing of the 
petition. has been employed outside the United States for at least one year in a managerial or executive 
capacity. and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l )(C) of the Act. 
The Form 1-140. Immigrant Petition tor Alien Worker. must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity tor at least one year in the three years preceding 
the tiling of the petition. that the beneficiary is coming to work in the United States tor the same 
employer or a subsidiary or affiliate ofthe foreign employer. and that the prospective U.S. employer has 
been doing business for at least one year. See 8 C .F.R. § 204.5(j)(3 ). 
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Ma/ler ()fM-F- Inc. 
II. WILLFUL MfSREPRESENTATION OF A MATERIAL FACT 
A. The Beneficiary's Experience Abroad 
If the beneficiary is already in the United States working for the foreign employer or its subsidiary or 
atliliate. then the petitioner must show that. in the three years preceding entry as a nonimmigrant. the 
beneficiary was employed abroad by the petitioning entity or its parent subsidiary, or aftiliate for at 
least one yea r in a mana gerial or exec utive capacity. 8 C.F .R. ~ 204.5(j)(3)(i)(B) 
The Petitioner tiled the petition in Jul y 2014. To demon strate that the Beneficiary met the foreign 
employment requirement. the Petitioner submitted a copy of the Beneficiary's resume. indicating 
that the Beneficiary was a manager tor 
from September 2001 to July 2013. The Beneficiary's resume also indicated that he had previou sly 
been a marketing /sales manager for . from 
September 1994 to August 200 I. 
The Beneficiary appeared at various U.S. consulates in China on five occasions between 2009 and 
2013, to apply for nonimmigr ant visas. On each occasion. when asked to identify his current employer. 
the Beneficiary named '' .. or a variation of that name. This information from the 
Beneficiary himself directly contradicts the claim that he left in 2001. The Benefici ary never 
identified as his current employer. despite five chances to do so. 
As a result of the conflicting claims, the Director found that the Beneficiary and the Petitioner had 
misrepresented the Beneficiar y's employment experience. The Director. however . did not provide 
eno ugh information to pennit a meaningful rebuttal. Ther efore. we issued a notice of intent to dismiss 
and request tor evidence (NOID/RFE) to advise the Petition er of the above inf<.m11ation. We requ ested 
'·credible and verifiabl e documentation" ofthe Beneficiary's employment with from 20 10 
to 2013, and '·a persuasi ve exp lanation tor why the Beneficiary never mentioned when 
repeatedly asked to name his current employer." 
The Petitioner responded to the NOID /RFE , but disregarded our request lor an explanation as to why 
the Beneficiary neve r claim ed as his employer durin g his consular intervicws between 
2009 and 2013. 
The Petitioner has. how ever. submitt ed partially translated copies of what purport to be monthly payroll 
records from represe nting various months ranging from December 200 I to October 2012. 
The formatting of all the record s is the same, but the copies appear to be from two differ ent sources . 
Most of the records dated from 2001 to 2005 are copied in sharp image quality, with 
company name shown in a red, stamped, circular seal. The later-dated copies are of poorer quality, with 
no sea l or other marking s to identify the company. The copies do not show contact inf\m11ation that 
would permit verification. and they lack reliable third-part y corroboration such as tax records. Taking 
all factors into consideration, the payro ll document s arc not sufficient evidence that 
emplo yed the Beneficiary from 200 I to 20 13. 
2 
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Malter oj'M-F- Inc. 
With respect to the Petitioner states that the company '"was previously operated through a 
collective enterprise .. but converted to a private limited liability company in 2001 when the Beneficiary 
invested substantial capital in the company and became its legal representative. This claim is consistent 
with the Beneficiary's ongoing involvement with the company. as ret1ected in his statements to consular 
ofticials. but it does not explain \vhy the Beneficiary's resume indicated that he stopped working for 
in August 2001. furthermore, the resume identified the Beneficiary only as a marketing/sales 
manager. not as its general manager as he told consular otticials. or as a majority shareholder and ··legal 
representative" as the Petitioner now claims in its response to the NOID/RFE. 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts.1 A 
misrepresentation of material fact may lead to serious consequences . including but not limited to the 
denial of the visa petition. a Jinding of fact that may render an individual alien inadmissible to the 
United States, and criminal prosecution . 
An immigration officer will deny a visa petition if the petitioner submits evidence which contains 
false information. In generaL a few errors or minor discrepancies are not reason to question the 
credibility of an alien or an employer seeking immigration benefits. See Spencer Enters. Inc. v. U.,\' .. 
345 F.3d 683. 694 (9th Cir. 2003). However, if a petition includes serious errors and discrepancies. 
and the petitioner does not resolve those errors and discrepancies after an otlicer provides an 
opportunity to rebut or explain. then the inconsistencies will lead U.S. Citizenship and Immigration 
Services (USCJS) to conclude that the facts stated in the petition are not true. See Malter (!lHo. 19 
I&N Dec. 582, 591 (BIA 1988). 
In this case. the Beneticiary's employment history is material to the statutory requirements at section 
203(b)( I )(C) of the Act and the regulatory criteria at 8 C.F.R. ~ 204.5U)(3 )(i)(B). Because the 
Petitioner has not resolved or explained the contradictory claims regarding the Beneticiary's 
employment history, the Petitioner has not established that its claims in this regard are true or 
credible. 
The Beneficiary has substantially revised his claims regarding his employment with and did not 
claim employment at until the present Petitioner began seeking immigration benefits l{)r 
the Beneficiary based on that employment. Upon review of the evidence and the Petitioner· s response, 
we tind that the Petitioner has not overcome the grave credibility issues arising from the Bcnctlciary·s 
conflicting employment histories. 
1 
The terms "'fraud'. and ·'misrepresentation"' are not interchangeable. Unlike a finding of fraud. a finding of material 
misrepresentation docs not require an intent to deceive or that the officer believes and acts upon the false representation. 
S'ee Mafler (!/Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). A finding of fraud requires a determination that the alien 
made a false representation of a material fact with knowledge of its falsity and with the intent to deceive an immigration 
oflicer. Furthermore, the t1tlse representation must have been believed and acted upon by the officer. See Almtt!r ofCi­
G, 7 I&N Dec. 161 (BIA 1956). 
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Matter olM-F- Inc. 
Beyond the adjudication of the visa petition, a misrepresentation may lead USC IS to enter a finding 
that a beneficiary sought to procure a visa or other documentation by willful misrepresentation of a 
material fact. This finding of fact may lead USCIS to determine, in a future proceeding. that the 
beneficiary 
is inadmissible to the United States based on the past misrepresentation. 
Section 212(a)(6)(C) of the Act, 8 U.S.C. ~ 1182(a)(6)(C), provides: 
Misrepresentation. - (i) In general. -- Any alien who, by fraud or willfully 
misrepresenting a material fact. seeks to procure (or has sought to procure or has 
procured) a visa. other documentation. or admission into the United States or other 
benefit provided under this Act is inadmissible. 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that the 
beneficiary willfully make a material misstatement to a government onicial for the purpose of 
obtaining an immigration benefit to which one is not entitled. Maller o(Kai fling Hui. 15 I&N Dec. 
at 289-90. The term ··willfully'' means knowing and intentionally, as distinguished from 
accidentally. inadvertently. or in an honest belief that the facts are otherwise. ,r..,·ee lvfaller of Hea~r 
and Goodchild, 17 I&N Dec. 22, 28 ( BIA 1979). To be considered material. the misrepresentation 
must be one which "tends to shut off a line of inquiry which is relevant to the alien's eligibility. and 
which might well have resulted in a proper determination that he be excluded." Maller of Ng. 
17 I&N Dec. 536, 537 (BIA 1980). 
Accordingly. for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings. the officer must determine: 1) that the petitioner or beneficiary made a l~1lse 
representation to an authorized official of the United States government: 2) that the 
misrepresentation was willfully made: and 3) that the fact misrepresented was material. Sec Afalfer 
of'M-. 6 I&N Dec. 149 (BIA I 954 ): Malfer of'L-L-. 9 I&N Dec. 324 (BIA 1961 ): Afaller ofKai fling 
Hui. 15 I&N Dec. at 288. 
First, as previously discussed, the Petitioner provided USCIS with documents regarding the 
Beneficiary's claimed employment with the foreign entity. A misrepresentation can he made to a 
government ofticial in an oral interview. on the face of a written application or petition. or by 
submitting evidence containing false information. INS Genco Op. No. 91-39. 1991 WL 1185150 
(April 30, 199 I). Here. the Beneficiary provided his resume as supporting evidence with the 
petition. The Petitioner has also asserted that the Beneficiary is a major shareholder in 
and that owns a half interest in the petitioning entity. The Beneficiary bears some 
proportional responsibility for the assct1ions in his resume and assertions made by his company. 
Second, we find that the Beneficiary willfully made the misrepresentation . The Beneficiary would 
have knowledge of his own employment history. 
Third. the evidence is material to the Beneficiary's eligibility. To be considered material. a false 
statement must be shown to have been predictably capable of affecting the decision of the decision-
4 
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MatJa <!( M-F- Inc. 
making body. Kungys \'. U.S .. 485 U.S. 759 (1988). In the context of a visa petition. a 
misrepresented fact is material if the misrepresentation cut off a line of inquiry which is relevant to 
the eligibility criteria and that inquiry might well have resulted in the denial of the visa petition. 5iee 
Mafler of"NK. 17 I&N Dec. at 537. 
The misrepresentations cut off a potential line of inquiry regarding the Beneficiary's claim of past 
employment with That employment is directly material to the requirement that. during 
the three years prior to tiling or to the Beneficiary's entry to work for the Petitioner. the Bencticiary 
has worked for at least one year for a foreign entity related to the Petitioner. Based on the 
information referenced above. it is reasonable to question whether the Beneficiary willfully 
misrepresented material facts regarding his claimed prior employment abroad during the relevant 
three-year time period. In light of the information we described above. we find that the Petitioner's 
and the Beneficiary's misrepre sentations were material to the Beneticiary's cligihility . 
By claiming employment that is significantly different from w·hat he had claimed previously. the 
Beneficiary has sought to procure a benefit provided under the Act through the willful 
misrepresentation of material facts. Accordingly , we will enter a finding that the Petitioner and the 
Beneficiary willfully misrepresented material facts. This finding of willful material 
misrepresentation shall be considered in any future proceeding \Vhere admissibility is an issue. 
B. Additional Credibility Issues 
The record includes other serious discrepancies which influence the Petitioner's overall credibilit y. 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sutliciency of other 
evidence submitted in support of the requested immigration benefit. Ho. 19 l&N Dec. at 591-92. 
I. The Beneficiary's Residence in the United States 
The Beneficiary spent most of 2012 and early 2013 abroad, but he claims to have maintained 
residences in the United States as well. On Form G-325A. Biographic Information. the Beneficiary 
indicated that he had lived on in Virginia. from August 2012 to December 
2013, and in on also in since January 2014. The address. 
however. is a commercial property. not a residential one. 
In our NOID/RFE. we asked the Petitioner to explain why he claimed to have resided for more than 
a year at the commercial property on We stated: ··credible documentary evidence. 
such as a lease. utility bills, and bank statements in the Beneficiary's name, may shed light on the 
Beneficiary's actual whereabouts during the period in question." 
In response, the Petitioner submits a copy of a residential lease agreement t()f the house on 
dated September 2012. The agreement indicated that the lease was for a five-year term 
beginning January 1, 2013. Theretore . the document provides no information about where the 
Bencticiary resided in 2012. The Petitioner submitted copies of health insurance document s 
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Matter ofM-F- Inc. 
addressed to the Beneticiary at the address, but those materials date from January 2017. 
Therefore , the y do show where the Beneficiary resided in 2012-2013. 
the Petitioner 's general manager, states: ''I . . . designated the . . . address 
for various mailings related to [the Beneficiary"s] personal atTairs:· This assertion does not explain 
why the address appeared on Form G-325A. docs not claim to have 
prepared that torm . Also. the ft)rm did not show as the Beneficiar y's then-current 
residential or mailing address, and therefore it would have had no effect on the Beneficiar y's mail 
delivery . That torm indicated that the Beneficiary lived on from August 2012 to 
December 2013. and on fi'om .January 2014 forward. Clearly the Benefici ary knew to 
provide the address as his current address. The Petitioner has not adequately explained 
why the Ben eficiary listed a commercial property on as his residential address from 
August 2012 to December 2013 . including the period ti'om August 2012 to December 2012. before 
the lease at was in effect. 
also claims .. direct knowledge" of the Bcneliciary's residence at the house 
.. because the house located at that address is owned by · The submitted lease agreement. 
however . name s as the landlord. We note that , although pages I and 12 of the lease 
agreement is dated September 15. 2012. page 17 include s the legend "Copyright 2002-2017 ... 
Therefore. at least some of the pages of the submitted agreement were printed in 20 I 7 rather than in 
2012. 
Furthermore . we advised the Petitioner that. in 2012 and 2013. the Beneficiar y had informed 
consular otlicials that he would be staying in while visiting the United States. These 
statement s are incompatible with the Beneficiary's later asset1ion that he had a residence in 
Virgini a in 2012 and 2013. but the Petitioner's latest submission doe s not acknowledge or address 
this significant discrepancy. 
The issue is directl y materi al to the Ben eficiary 's eligibility tor immigration benefit s. The Petitioner 
has claimed that the Beneticiary has been a director of the compan y s ince July 201 2. and that it 
appointed the Beneficiary as its president in October 2012 . Jf the Bcncticiary intended to travel to 
in late 2012 or in 2013 in order to conduct business or serve as the Petitioner' s president. 
then he misrepresented the nature and purpose of his travel when he applied f()r B-2 nonimmigrant 
touri st visas in August 2012 and Jul y 2013 . On the other hand , if the Beneficiary did trave l only to 
New York during tho se periods , as he claimed he would at the time . then he s ubsequentl y 
misr epresented his location by stating that he resided in 
2. Ownership ofThe Petitioning Company 
Another issue, which we will address again below. concerns the owner ship of the petitioning entit y. 
For the purposes of evaluating the Petitioner's credibility , it will suffice here to observe that the 
Petitioner has made several conflicting assertions regarding its ownership. Most significantly, in 
May 2017, the Petitioner stated that it has always been. and remains. a 50/50 joint venture between 
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Mul(er cJf i'vf-F- Inc. 
and We then advised the Petitioner in the 
NOID/RFE that the Commomvealth of Virginia term inated corporate status. In response. 
the Petitioner contradicts its May 2017 statement and now claims that transferred its 
shares to its owner . in December 2012. The Petitioner does not explain why it \Vithhe!d 
this infonnation until confronted with evidence that no longer exists. 
Because of the contlicting or refuted claims detailed ahove. we give little weight to any claim 1hat 
the Petitioner makes without reliable. verifiable. independent support. See Ho. I 9 I&N Dec . a t 591-
92. The Petitioner's incompletely corroborated explanations do not overcome the Direct or's finding 
of m isrcprescntation. 
Ill. QUALIFYING RELATIONSHIP 
The Director denied the petition based 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 shov.­
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a 
U.S. entity \vith a f(lreign office) or related as a '·parent and subsidiary" or as ''aftiliates." .)'ee 
genemlly sec tion 203(b)(l)(C) ofthc Act: 8 C.F.R. ~ 204 .5(j)(3)(i)(C). 
The pertinent regulations at 8 C.P.R. § 204.5(j)(2) detinc the releva nt terms. Generally. the term 
··affi liate .. mean s one of two subsidiaries both of which are owned and controlled by the same parent 
or individual, or one of two legal entities owned and controlled by the same group or individuals. 
each individual owning and controlling approximately the same share or proportion of each entity. 
The same regulation detine s a ··subsidiary" as a lirm. corporation. or other legal entity of which a 
parent has some degree of direct or indirect ownership and control over the entity. or owns 50 
percent of a 50-50 joint venture and has equal control and veto power ove r the entity. 
The reg ulation and case Jaw confirm that ownership and control arc the factors that determin e 
whether a qualifying relationship exists between United States and foreign entities for purposes of 
this visa clas sification . 2 In the context of this visa peti tion. ownership refers to the direct or ind irect 
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 esta blishment. management. and 
operations of an entity. ,ifa lfer of" Church Scienrolo~y lnr '/. 19 1&1\ Dec. at 595. 
In this case. the Petitioner claims to be a subsidiary of In the denial notice . the Director 
concluded that ··the claimed relation ship betw·een the petitioner and the beneficiary' s foreign 
employer was severed ," but the Director cited no evidence to explain this finding . 
2 (f.' fl.falfer u( Church Scientology In! 'f. 19 I& N Dec . 593 (B I A 1988) : see also A-lall<'r oj" Siemens Ale d. .~rs .. Inc., 19 
I&N Dec. 362 (B IA 1986) : :Haifa o(!fugh es. IS I&N Dec . 289 (Comm ·r 1982). 
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Mafler of M-F- Inc. 
However. we agree with the basic tinding that the Petitioner has not established an ongoing 
qualifying relationship. Apart from the serious questions surrounding the Beneficiary's claimed 
employment at discussed above, there are significant inconsistencies and discrcpam:ies 
regarding the claim of a qualifYing relationship. 
At the beginning of this proceeding, the Petitioner did not discuss its ownership. but we note that. in 
an earlier nonimmigrant tiling, the Petitioner stated: "The US entity was established and registered 
in July 2012 as a joint venture between ... and ... 
. . . on [aJ49-51 basis:· 
On its income tax returns from 2012 to 2015. submitted with the initial filing. the Petitioner 
consistently answered "no·· to question 3 on Schedule K. which asked whether other corporations or 
business entities owned significant percentages of the Petitioner's shares. This directly contradicts 
the claim that owned a controlling interest in the company. 
On appeal. the Petitioner submitted a joint venture agreement. purportedly dated July 2012. indicated 
that the Petitioner is a 50/50, not 49/51. joint venture between and Consistent 
with this assertion, the Petitioner submitted one-sided copies of share certificates. again dated July 
2012. showing that and each held 500 shares of the petitioning company. In 
an accompanying brief. dated May 2017. the Petitioner stated: "On July I. 2012 .... 
. . . and entered into a 50150 joint venture agreement to f(Jrm r the 
petitioning company]. and that ownership and control arrangement continues through present time." 
In our NOlO/RFE, issued in October 2017. we advised the Petitioner that "the Commonwealth of 
Virginia lists status as 'terminated.··· We instructed the Petitioner: 
Please submit recent. credible. verifiable evidence ro establish your company's 
current ownership structure. This evidence should include copies of all current share 
certificates. the stock ledger showing past issuances and current ownership. and any 
meeting minutes that pertain to share transactions. The evidence should also establish 
who controls the company. through owning a majority or voting shares, hinding 
voting agreements. or internal documents such as bylaws that establish and identitY 
the person or entity with controlling authority over the corporatjon. 
In response. the Petitioner states: "On December 31. 2012. transferred its 500 shares to 
in his individual capacity... The Petitioner submits copies of documents bearing that date, 
including a two-sided copy of share certificate (number 1 ), a one-sided copy of 
certificate (number 3 ). and other documents to reflect this transfer. The newly claimed 
transfer of shares took place more than a year before the Petitioner filed the petition in 2014. but the 
Petitioner never mentioned or documented this transfer before no\v. Previously submitted materials 
did not document this transfer. A stub sheet tor certificate number 1 included the standard language. 
•·paste cancelled certificate in this space." but certificate number I was not attached. 
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Matter ojlYf-F- Inc. 
If transferred its shares in 2012. then the appellat e brief contains an objectively false 
assertion that the ··ownership and control arrangement !between and 
continues through [the] present time.·· Also. ifthe 2012 ownership arrangement no longer existed in 
2017, then it was misleading at best for the Petitioner to submit 2012 ownership document s without 
any indication that the arrangement had subsequently changed . 
Given its conllicting claims about the company's mvncrship. the Petitioner has seriou sly 
compromised its credibility on this issue. Having provided contradictory information about 
share certilicate, the Petitio ner is not entitled to a presumption that share 
certificate continues to be credible and up-to-date. 
Based on the inconsistencies discussed above, the Petitioner has not established that it has a 
qualifying relationship with an entity that employed the Beneficiary ti.)r at least one year during the 
three years prior to the Beneficiary's entry into the United States to work for the Petitioner . 
IV. DOING BUS INESS 
The Director found: "The evidence does not establish that the petittone r is currently doing 
business:· defined as the regular. systematic, and continuous provision of goods andior services. 
8 C.F.R. § 204.5(j)(2). The Director did not elaborat e or cite any evidence underl ying this finding. 
On appeaL the Petitioner submits copies of invoices from February 2017. showing that the Petitioner 
continues to sell food produc ts to Chinese restaurants in Virginia. These documents are J>rimafude 
evidence of ongoing business activity. While there are major credibility issue s in this proceeding. 
tho se issues do not discredit the invoices or otherwise directly concern the Petitioner' s business 
operations. Because the Director did not explain the reason s for the finding as requir ed by 8 C.F.R . 
~ 103.3(a)(l)(i), and review of the record does not cast dm1bt on the Petitioner 's continued 
operations. we withdraw this stated ground for denial. although the other stated gro und s remain . 
V . U.S. EMPLOYMENT JN At\ EXECUTIVE CAPAC JTY 
The Director tound that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. Throughout this proceeding , the Petitione r has specified that it 
seeks to employ the Beneficiary in an executive capacity . We will theretorc limit consideration to 
the requirements tor an executive capacity rather than a managerial capacity. 
An executive capacity is an assignment vvithin an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization: 
establishes the goals and poJicies of the organization , component or function: exercises wide 
latitude in discretionary decision-making: and receive s only general superv ision or direction from 
higher-level executive s, the board of directors. or stockho lders of the organization. Section 
101(a)(44)(B) ofthe Act 8 U.S.C. § 8 U.S.C. ~ 1101(a)(44 )(B) . 
Matter olM-F- Inc. 
If staffing levels are used as a factor in determining whether an individual is acting in an 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. See section I 0 I (a)( 44 )(C) of the Act. 
A. Duties 
A petitioner must 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. 8 C.F.R. ~ 204.50)(5). 
When examining the executive capacity of a given beneficiary, we consider the petitioner"s 
description of the job duties. The petitioner must clearly describe the duties to be performed by the 
Beneficiary and indicate whether such duties are in a managerial or executive capacity. S"ce 8 C.F.R. 
~ 204.5(j)(5). 
The Petitioner stated: 
[The Beneficiary], as the president, is in charge of overall management of the U.S. 
company. . . . [H]e presides over the entire U.S. company"s operation including 
setting the company"s budget and controlling overall financial decisions. 
He holds the authority to hire and fire employees and provides high level training to 
managerial staff. In addition, [the Beneficiary J exercises discretion over the 
development of sales and marketing. . . . Once fully established and implemented, 
[the Beneticim-y"s] duties are to oversee the daily activities of the business to assure 
that the current business strategies and objectives arc met: to oversee formulation of 
future business strategies and objectives when it comes to business scope . 
. . . [The Beneficiary] has been focusing on strengthening the existing business ties 
with the company"s old customers on our traditional distribution services. And at the 
same time he has developed and implemented the company business plan for setting 
up new product line[s] and business for exporting US products to China .... 
Additionally, !the Beneficiary] also has the following duties and responsibilities: 
responsibilities for the overall executive and financial control of [the company] 
setting/monitoring budget and cash flows 
exercising widest discretion over day-to-day operations of the business 
developing and implementing the company"s business plan 
representing the company to financial and legal entities 
setting and implementing standards to ensure customers" satisfaction 
researching and studying all business opportunities 
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Matter olM-F- Inc. 
setting and implementing pricing policies 
interviewing. recruiting. hiring and tiring staff. motivating and training stall 
representing the corporation at trade shows and exhibitions. 
directing the management of the corporation in all its activities 
Subsequently. the Petitioner submitted a table of the Beneficiary's claimed responsibilities and tasks: 
Responsibility Category/Constituent Task Percentage of 
Time- Broad 
Category or 
Constituent Task 
Strategic Planning and Business Development 45.00% 
Lead the strategic planning process for operational program 15.00% 
activities including supplier selection. to ensure profitable. 
smart growth and that the organization is aligned to key 
priorities and deliverables. --
Develop and align joint business plans. inc! uding marketing I Cl.OO% 
plans. category management. category trainings. and 
promotional activitv. 
Manage the business P&L. including analysis. optimization. 10.00% 
and implementation of improvement initiatives. 
Direct any request for proposal process to ensure that resources 10.00% 
are aligned. customer expectations are met. and decision-
making is consistent with corporate objectives. 
Operational Engagement/Improvement 35.00% 
Appoint department managers and delegate responsibilities to 5.00% 
them. ·--
Review reports provided by General Manager. 5.00% 
Develop and implement processes. systems. and best practices 5.00% 
necessary to scale the organization. --- -,-
Identify. plan. and execute corrective action plans to address 10.00% 
operational deficiencies and inefficiencies. 
Direct. plan. and implement analyses to evaluate performance 10.00% 
of company and stan· in meeting objectives and to determine 
areas of potential cost reduction. program improvement. and 
policy change. 
Customer/Supplier/Stakeholder Engagement/Relationship 15.00% 
Management 
Maintain and grow supplier and supply chain relati~nships 5.00% ·- ·------------
Collaborate with marketing and operations units to develop 5.00% 
programs and offerings that deepen strategic customer 
relationships. 
Negotiate[] and approve agreements with suppliers and federal. 5.00% 
1 1 
lvlaller of M-F- inc. 
state, and municipal agencies. 
Organizational Governance Activities 5.00% 
Confer with board members and General Manager to discuss 5.00% 
issues, and coordinate activities. . 
In the denial notice. the Director stated that the "set of broad job responsibilities" lacked detail and 
did not "convey an understanding of what the beneficiary would actually be doing on a daily basis." 
On appeaL the Petitioner acknowledges that "a detailed job description is critical" hut asserts that the 
submitted "job description ... was sufficiently detailed." 
We have determined that the duties listed above are vague and generaL and several of the elements 
described do not appear to tit the Petitioner's description of the company. For example. the 
Petitioner does not appear to have separate "marketing and operations units .. or "department 
managers"; the Petitioner claimed six employees at the time of filing in 2014. and four employees 
when it provided the above chart in early 2017. The record docs not establish to what extent. if any. 
the described activities take place. As we have already discussed. there are significant credibility 
concerns in this proceeding. Therefore. the Petitioner's unsupported assertion does not suffice to 
establish. for instance. that the Beneficiary spends several hours per vveek negotiating with 
government agencies. 
A beneficiary's authority over a given business does not necessarily establish eligibility for 
classification as an intracompany transferee in an executive capacity. 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 Petitioner has not established that the 
Beneficiary's actual duties. as of the date of filing. would he primarily executive in nature. Section 
101(A)(44)(B) ofthc Act 
Furthermore. the delegation of duties shown in the job description relies on subordinate staff to 
perform routine business tasks. 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. 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 tor 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 he deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as an owner or sole managerial 
employee. A beneficiary must also primarily exercise "wide latitude in discretionary decision 
making" and receive only "general supervision or direction from higher level executives. the hoard 
ofdirectors. or stockholders ofthe organization ... Section 101(a)(44)(B) of the Act. 
12 
Maller of M-F- Inc. 
As discussed below. the Petitioner has not established that it has any lower levels of management for 
the Petitioner to direct. 
B. Staffing 
Beyond the required description of the job duties. users reviews the totality of the record when 
examining a beneficiary's claimed executive capacity. including the company's organizational 
structure. the duties of a beneficiary's subordinate employees. the presence of other employees to 
relieve a beneficiary from performing operational duties. the nature of the business. and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business. 
Federal courts have generally agreed that. in reviewing the relevance of the number of employees a 
Petitioner has. USers ··may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager. .. J Furthermore. it is appropriate 
for USC IS to consider the size of the petitioning company in conjunction with other relevant factors. 
such as the absence of employees who would perform the non-executive operations of the company. 
See. e.g. Systronics Corp. \'. INS. 153 F. Supp. 2d 7. 15 (D.D.C. 200 I). 
On the petition fi.)rm. the Petitioner indicated that it currently had six U.S. employees. but the 
Petitioner did not initially provide any further information about those workers or their duties. 
Subsequently. in February 2017. the Petitioner indicated that the Beneficiary has one direct report. a 
general manager. who in turn supervises a financial/marketing consultant and an administrative 
assistant/bookkeeper. An organizational chart also shows a vacant "Warehouse/Driver/Sales·· 
posttton. The Petitioner added that '"in 2014 at the time of tiling. [the Petitioner] employed 
additional personnel that were charged with customer and sales support .... [Those J functions have 
been absorbed temporarily by the Administrative Assistant/Bookkeeper and Financial/Marketing 
Consultant roles ... 
The Petitioner provided the following job description for the general manager position: 
Responsibility Category/Constituent Task Percentage of 
Time - Broad 
Category or 
Constituent Task 
Daily Business Management 45.00% 
Maintain appropriate inventory levels in meeting customer 25.00% 
demand (Service Level) while maximizing inventory turns. 
Supervise the activities of workers engaged in receiving. 10.00% 
storing. and shipping products. 
3 
Fa mill'. Inc. v. US. ( 'ftt=enship and Immigration SetTices, 469 F.3d 1313. 1316 (9th Cir. 2006) (citing with approval 
Repuh/ic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. r. Sa''"· 905 F.2d at 42: Q D11t11 
Consulting. Inc. ,._ INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
13 
Mafler ofM-F- Inc. 
--
Plan. develop. and implement warehouse safety and security 5.00% 
programs and activities. -
Prepare stafTwork schedules and assign specific duties. 5.00% 
Sales 40.00% 
Support produce sales opportunities by collaborating with 25.00% 
Business Development and Sales and Marketing management 
in developing successful sales strategy in growing profitable 
sales. - -·---·----
Execute strategy for individual product category to meet or 15.00% 
exceed profitable sales targets. 
Product Logistics 15.00% 
Inspect physical conditions of warehouses. vehicle fleets. or 10.00% 
equipment and order testing. maintenance. repairs. or 
replacements. 
Responsible for logistics management concerning inbound 5.00%] 
products. utilizing efticicnt loading/shipping_?trategies. 
·------ ~-----
As with the Beneficiary's job description. the general manager's description refers to positions that 
do not exist at the petitioning company. such as "Business Development and Sales and Marketing 
management.'' Similarly. the Petitioner did not show that it maintains multiple "warehouses" or 
"vehicle fleets." A generic or template description of a typical general manager's duties does not 
show what this particular general manager docs on a daily basis. 
The Petitioner did not show that the general manager· s two identified subordinates hold manageriaL 
professionaL or supervisory positions. Instead, the general manager appears to be the first-line 
supervisor of two lower-level employees. which is not indicative of a managerial role. The 
Petitioner has not provided enough verifiable and reliable information about the duties of the 
Beneficiary and his subordinates to establish that the Beneficiary will work in an executive capacity. 
VI. CONCLUSION 
Given the credibility issues regarding company ownership and the Beneficiary's employment 
history. the Petitioner has not established a qualifying relationship with a foreign entity that 
previously employed the Beneficiary. The Petitioner has also not established that it will employ the 
Beneficiary in a primarily executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-F- Inc .. ID# 682370 (AAO Feb. 22. 2018) 
14