dismissed EB-1C Case: Franchise Operations / Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-D-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 30,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an ice cream franchise operator and educational products exporter, seeks to 
permanently employ the Beneficiary as its chief executive officer (CEO) under the first preference 
immigrant classification for multinational executives or managers. See Immigration and Nationality 
Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. 
employer to permanently transfer a qualified foreign employee to the United States to work in an 
executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: (1) it will employ the Beneficiary in a managerial or capacity; (2) that 
the Beneficiary was employed abroad in a managerial or executive capacity for at least one year in 
the three years preceding his entry to the United States as a nonimmigrant; (3) that the foreign entity 
continues to do business abroad; and ( 4) that the Petitioner was doing business for at least one year 
at the time the petition was filed. 
On appeal, the Petitioner submits additional evidence and asserts that the Director overlooked 
material evidence and did not apply the preponderance of the evidence standard to the facts 
presented. 
Upon de novo review, we will withdraw the Director's decision with respect to three of the four 
stated grounds for denial. Specifically, we find that the Petitioner submitted sufficient evidence to 
establish that the Beneficiary was employed abroad in an executive capacity, that the foreign entity 
was doing business and continues to do business, and that the Petitioner was doing business in the 
United States for one year at the time of filing. 1 However, as the Petitioner has not overcome the 
remaining ground for denial, we will dismiss the appeal. 
1 The record includes the foreign entity's audited financial statements for the 2015 to 2017 fiscal years showing that it 
generated receipts in the multimillion dollar range, along with evidence of contracts, invoices, payroll records, and other 
transactional documents sufficient to show that the company continues to do business abroad. Further, the Petitioner 
submitted its 2014 tax return, wire transfer records, bank statements, invoices, and purchase orders, which adequately 
demonstrate that it commenced business operations in October 2014, one year prior to filing this petition on October 15, 
2015. Finally, the record shows that the Beneficiary, the foreign entity's CEO and minority owner, occupied a senior 
position in a fairly complex hierarchy that included 45-50 employees, including subordinate managers and supervisors. 
After reviewing the totality of the record, including the Beneficiary's job duties abroad, the foreign entity's 
Matter of T-D-S- Inc. 
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 I-140, Immigrant Petition for 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 for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the 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). 
II. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
"Executive capacity" is defined as an assignment within 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 policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) ofthe Act. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial or executive capacity. Champion World, Inc. 
v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must 
prove that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
organizational charts, payroll records, and other relevant evidence, we find it more likely than not that the Beneficiary 
was employed in an executive capacity. 
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Matter ofT-D-S- Inc. 
III. U.S. EMPLOYMENT IN A MANGERIAL OR EXECUTIVE CAPACITY 
The sole issue in this matter is whether the Petitioner established that the Beneficiary will be 
employed in the United States in a managerial or executive capacity. 
The Director's decision was based on a finding that the Petitioner did not provide certain requested 
information regarding the Beneficiary's subordinate employees in the U.S. company, such as their 
job duties, salaries, the educational requirements for the subordinate positions, and information 
regarding the number of full-time and part-time employees. The Director concluded that the 
evidence as a whole did not establish how operational and administrative tasks are allocated within 
the company, and therefore did not show how the Beneficiary would be relieved from performing 
such non-managerial and non-executive tasks. 
On appeal, the Petitioner contends that the Director overlooked relevant evidence regarding the 
Petitioner's staffing structure and maintains that "the submitted evidence demonstrates that 
beneficiary has been and will operate at the highest level of the company meeting the definition of 
executive or managerial capacity." 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be performed by the Beneficiary. Beyond the required description of the job 
duties , U.S . Citizenship and Immigration Services (USCIS) reviews the totality of the evidence when 
examining a beneficiary's claimed managerial or 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. Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the 
Petitioner's staffing levels and reporting structure. 
A. Duties 
The Petitioner sources educational equipment and materials for export and sale to customers in 
Kuwait, and, since September 2015, operates a retail ice cream franchise. 2 It seeks to 
employ the Beneficiary as its CEO and provided the following description of his duties, with the 
approximate percentage of time he would allocate to each duty: 
• Develop and direct the company's business on a daily basis. He will be 
responsible for the formulation of company ' s policy, including policy governing 
the company's finances, sales, marketing and administration. ( 15%) 
2 The record shows that the Petitioner began operating a third line of business -a home renovation franchise - subsequent 
to the filing of the petition in October 2015. The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied rrom the time of the filing and continuing through adjudication . 8 C.F.R. 
§ l03.2(b)(l). Therefore . we will not consider evidence related to the home renovation business or its staff. 
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Matter ofT-D-S- Inc. 
• Review the marketing and sales activity reports and financial statements. He will 
regularly monitor the progress towards the attainment of the company's goals of 
increased marketability, branding and exposure of [company] products. ( 15%) 
• Exercise complete control over the decision making process. . . . Review the 
company's marketing policy, marketing and sales activity reports and financial 
statements. He will regularly monitor the progress towards the attainment of the 
company's goals of increased marketability, branding and exposure of [company] 
product lines. ( 10%) 
• Receive only general supervision from [the Petitioner's foreign parent company]. 
10% 
The Petitioner indicated the Beneficiary would spend the remaining 50% of his time on "the future 
growth of the business and product promotion" by performing 14 duties that included developing 
and directing the company, making company policy, directing business strategy, directing project 
development, reviewing projects and documents, overseeing sales, company meetings, and hiring 
and firing staff, among others. 
This description did not provide sufficient detail regarding the nature of the tasks the Beneficiary 
would perform on a day-to-day basis. The assigned responsibilities are very generic and could 
describe duties assigned to any managerial or executive employee in virtually any type of company. 
As such, the description provides little insight into what the Beneficiary would do with respect to the 
Petitioner's two distinct lines of business. Duties such as "develop and direct the company," "make 
company policy," "direct business strategy," "develop and direct the company's business on a daily 
basis," and "exercise complete control over decision making" are repetitive and merely paraphrase 
the statutory definition of executive capacity. Conclusory assertions regarding the Beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations 
does not satisfy the Petitioner's burden ofproof. 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); Avyr Assocs., Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). 
The Petitioner submitted a revised description of the Beneficiary's duties in response to a notice of 
intent to deny (NOID). The Petitioner indicated that the Beneficiary would spend 20% of his time 
on planning and establishing the company's goals objectives and strategies, including attending 
board of director's meetings, reviewing income and expenditures for submission to the board, 
reviewing the annual report, reviewing and approving budgets, setting performance goals, and 
keeping updated with industry trends. 
In addition, the Petitioner stated that the Beneficiary would spend 40% of his time overseeing all 
operating activity including accounting, human resources, sales, procurement, and marketing 
functions. The Petitioner indicated that this responsibility would including leading meetings with 
the "operation manager and department managers," reviewing inventory reports and projections, 
reviewing marketing research and marketing campaigns, reviewing government compliance records 
with the office manager, reviewing and approving sales prices and incentives for the sales 
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Matter ofT-D-S- Inc. 
department , and reviewing "reports about the company's logistics and supply chain procedures , 
existing contracts and vendors." 
Further, the Petitioner stated that the Beneficiary would allocate 15% of his time to planning and 
overseeing financial activities , including reviewing financial reports provided by operations 
managers, 10% of his time on hiring, terminating , and re-assigning members of the management 
team, and the remaining 15% of his time on maintaining customer relationships and ties with the 
foreign parent company. 
This revised description , like the initial description , was too general and non-specific to establish the 
nature of the duties the Beneficiary would perform on a regular and ongoing basis, and did not 
further elaborate upon the duties described at the time of filing. Rather, the Petitioner merely 
provided a somewhat different general overview of the position that did not describe the 
Beneficiary ' s actual duties within the context of its two distinct lines of business. Further , this 
description contains references to subordinate positions, including an "operation manager " and an 
"office manager," that do not exist in the Petitioner ' s organizational structure , which further limits 
the probative value of the information provided. 
The fact that the Beneficiary will manage a business as its senior employee does not necessarily 
establish eligibility for classification as a multinational manager or executive. By statute , eligibility 
for this classification requires that the duties of a position be "primarily" managerial or executive in 
nature. Section 1 0 I (A)( 44) of the Act. Even though the Beneficiary exercises discretion over the 
Petitioner ' s operations and possess authority with respect to discretionary decision-making, the 
position description alone is insufficient to establish his employment will be in a managerial or 
executive capacity. 
Finally , we note that the Petitioner provided a Staff Structure " chart which shows the 
Beneficiary as "General Manager" of the retail store, with responsibility to "manage and guide all 
the store team on the brand principles." The store's sole other supervisory employee is an assistant 
manager. The Petitioner also submitted a copy of the Beneficiary's Food Protection 
Manager certificate showing that he completed training to work in the store. Based on this evidence , 
it appears more likely than not that the Beneficiary ' s role includes on-site responsibilities at the 
Petitioner's retail ice cream location. These responsibilities are not reflected in either version of his 
job description. Therefore , while the Petitioner twice provided a breakdown of how he allocates his 
time, neither of those breakdowns included his duties as the general manager of the store or 
indicated how much time he spends in the store. The job descriptions , in addition to being overly 
general, appear to be incomplete and we cannot determine that they accurately reflect how the 
Beneficiary would actually spend his time. 
Whether the broad duties attributed to the Beneficiary qualify as managerial or executive in nature 
depends in large part on whether the Petitioner established that he would have sufficient subordinate 
staff to supervise and perform the day-to-day company activities he is claimed to manage. As 
discussed further below , the Petitioner has not shown its ability to relieve the Beneficiary from 
significant involvement in the operational tasks required to operate its two lines of business. 
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Matter ofT-D-S- Inc. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development ofthe organization. See section 101(a)(44)(C) ofthe 
Act. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) ofthe Act. The Petitioner does not claim 
that the Beneficiary will be a function manager, but we will consider whether the evidence 
establishes that he will be a personnel manager. 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. "3 Section 
204.5(j)( 4)(i) 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. Section 204.5(j)(2) of the Act. 
The Petitioner claimed 24 employees at the time of filing and submitted two "Staff Structure" charts 
-one for the office-based staff who carry out the education products export business, and one for the 
ice cream store's staff. 
With respect to the educational products line of business, the Petitioner indicated that it had filled 
seven of ten positions, including the CEO (the Beneficiary), a secretary, a marketing executive, a 
purchasing manager, and three sales employees (a manager, a supervisor and a representative), with 
vacancies for an accountant, an information technology engineer, and a human resources 
representative. The Petitioner provided evidence that each employee received his or her stated 
salaries in the fourth quarter of 2015. However, it did not provide sufficient evidence to show that 
the Beneficiary would supervise subordinate managers, supervisors, or professionals working in this 
line of business. The Petitioner indicated that only one employee has a bachelor's degree (the sales 
manager), but did not include evidence ofhis educational credentials. Further, the Petitioner did not 
submit a sufficient description of the sales manager position to establish that it is a supervisory 
3 In evaluating whether a 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. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section 10 I (a)(32) of the Act, 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." 
Therefore, we must focus on the level of education required by the position, rather than the degree held by subordinate 
employee. The possession of a bachelor's degree by a subordinate employee does not automatically lead to the 
conclusion that an employee is employed in a professional capacity. 
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Maller ofT-D-S-Inc . 
position. For example , the Petitioner indicated that all three sales employees report to the CEO, and 
it assigned identical duties to both the sales supervisor and the sales representative . 
In December 2016 , the Petitioner submitted unsolicited supplemental evidence which included an 
updated organizational chart. At that time, the Petitioner indicated that it had vacancies for the sales 
representative, marketing executive , purchase manager, and IT engineer positions, and no longer 
showed a sales manager position in its educational products division. 4 Therefore , the filled positions 
in the educational products branch of the business at that time included a sales supervisor, 
administrative assistant, HR manager (held by the individual previously identified as marketing 
executive) , and accountant (held by the individual previously identified as a sales representative). A 
third organizational chart submitted in response to the NOID in June 2017 shows an "educational 
supplies, technology solutions and digital signage" division with two separate departments and a 
total of eleven positions, ten of which were identified as "vacant" on the chart . The only staffed 
position was an administrative assistant. 
Therefore, while it appears that this line of business may have been sufficiently staffed at the time of 
filing, it is unclear that it has continued to have sufficient staff to fully operate or to relieve the 
Beneficiary from significant involvement in the day-to-day operations of sourcing, selling , and 
exporting educational and scientific products to targeted customers in the Middle East. 
Turning to the staning of the store, the Petitioner indicated that the store employed the 
Beneficiary (general manager), one assistant manager , three team leaders, and 13 · ' at 
the time of filing. In a "staffing structure" chart, the Petitioner indicated that the assistant manager 
($3000/month) , team leaders ($1400/month), and two ($1200/month) were working 
full-time, and all other staff working part time and receiving $1 000/month. The Petitioner submitted 
state quarterly 
wage reports confirming that it employed all of the employees listed on the initial 
organizational chart as of September 2015. However, five of the 13 did not receive 
wages in October 2015 when the petition was filed, and two of them earned less than $400 in the 
fourth quarter of 2015. While we acknowledge that turnover is likely high among the Petitioner's 
hourly employees , it is difficult to determine who the Petitioner actually employed at the time of 
filing . 
In response to the NOlO , the Petitioner provided an updated "staffing structure" chart which showed 
that the same store employed two assistant managers, six team leaders, and 17 with a 
vacancy for the "general manager" position previously attributed to the Beneficiary. 
While it appears the assistant manager may hold a supervisory position, the record does not 
sufficiently demonstrate that the "team leaders" have supervisory authority over the lower level 
workers or act as shift leaders. The Petitioner initially indicated that each team leader has different 
responsibilities- equipment and inventory, store housekeeping, and customer service, respectively -
but in response to the NOlO indicated that four of the six team leaders perform duties identical to 
4 The individual who held the sales manager position at the time of filing was depicted as the sales manager for the home 
renovation business. 
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Matter ojT-D-S- Inc. 
those of the . Further, while the Petitioner initially indicated that the assistant manager 
is a salaried worker who earns nearly three times as much as a full-time the latest 
"staffing structure" shows that the assistant managers, team leaders and all earn 
hourly wages between $10.00 and $12.00, with no clear hierarchy. The record does not establish 
that the Beneficiary would primarily supervise subordinate supervisors , managers, or professionals 
working at the store. 
The Petitioner claims, in the alternative, that the Beneficiary will be employed in an executive 
capacity. The statutory definition of the term "executive capacity" focuses on a person's elevated 
position within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 10l(a)(44)(B) of the 
Act. Under the statute , a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies " of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they 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 he "directs" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors , or 
stockholders ofthe organization." !d. 
The Beneficiary's overall authority over the company and discretion to select, hire, and supervise 
employees is noted, but the Petitioner has not established how he would spend his time primarily on 
the broad policies and goals of the business, rather than participating in its day-to-day operations, 
particularly since it appears he would spend an undisclosed portion of his time acting as the 
store manager. For this reason, the evidence does not support the Petitioner's claim that 
he would perform primaril y executive duties for the petitioning company. 
Section 101(a)(44)(C) of the Act requires that USCIS must take into account the reasonable needs of 
the organization in light of the overall purpose and stage of development of the organization if 
staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity. However, it is appropriate for USCIS 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-managerial or non-executive operations of the company. Family Inc. v. USCIS, 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 I). 
As noted, while it appears that the educational products division of the company was likely 
adequately staffed at the time of filing, the Petitioner has not shown how the Beneficiary was 
relieved from significant involvement in non-qualifying duties associated with the operation of the 
company's retail store. The Petitioner ' s franchise agreement with requires "franchisee or 
a designated and approved manager" to "devote full time, energy and best efforts to the management 
and operation of Franchisee 's store," and requires the Petitioner to have "at all times " a supervisor 
"managing the operation of the store." Given the Petitioner's initial claim that the Beneficiary was 
acting as the general manager of the store at the time of filing, his certification , and the 
Matter ofT-D-S- Inc. 
frequent turnover among lower-level staff, it is reasonable to believe that the Beneficiary himself 
would be performing in this store manager role. Although the Petitioner indicated in later versions 
of its organizational chart that the "general store manager" position was vacant, it is unclear who 
would perform in this critical position, if not the Beneficiary, as the record does not show that it was 
ever held by anyone but him. The Petitioner's store is likely open daily for 60 or more hours per 
week and the Petitioner has not shown how a single assistant manager would relieve the Beneficiary 
from the many non-managerial, non-executive duties associated with the day-to-day running of this 
type of business. Rather, he would likely responsible for the daily supervision of the store and its 
non-supervisory, non-professional employees when the assistant manager is not on duty. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufficiently relieved from involvement in the day-to-day operations of the company, despite his 
senior position in the company hierarchy. Accordingly, the Petitioner has not met its burden to 
show that his duties would be primarily managerial or executive in nature as of the date of filing. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in the United States in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-D-S-lnc., 10# 1165737 (AAO Apr. 30, 2018) 
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