dismissed EB-1C Case: Gemstone Trading

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-G- INC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 1 L 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a gemstone trading company, seeks to permanently employ the Beneficiary as its 
president 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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that: ( 1) the Petitioner has a qualifying relationship with the Beneficiary" s 
employer abroad; (2) 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: and 
(3) the Beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. The Director denied the petition with a finding of fraud or willful misrepresentation of a 
material fact. 
On appeal, the Petitioner submits additional evidence and asserts that the Director did not conduct a 
complete review of its response to a notice of intent to deny (NOID). The Petitioner maintains that it 
has met all eligibility requirements for the requested classification. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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 
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Matter of T-G- Inc. 
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. § 204.5U)(3). 
II. QUALIFYING RELATIONSHIP 
The Director found that the Petitioner did not establish that it has a qualifying relationship with the 
Beneficiary's foreign employer. 
The Petitioner claims to be a wholly-owned subsidiary of 
a sole proprietorship located in India, and states that this entity employed the 
Beneficiary from 1997 until 2008. 
To establish a qualifying relationship under the Act and the regulations, a petitioner must show that 
the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a 
U.S. entity with a foreign office) or related as a "parent and subsidiary .. or as "atliliates.'' See 
generally section 203(b)(1)(C) ofthe Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
The term "subsidiary" means a firm, corporation, or other legal entity of which a parent owns. 
directly or indirectly, more than half of the entity and controls the entity; or owns, directly or 
indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 
50-50 joint venture and has equal control and veto power over the entity; or owns. directly or 
indirectly, less than half of the entity, but in fact controls the entity. /d. 
In separate supporting letters submitted at the time of filing, the Petitioner and the foreign entity 
stated that the petitioning company was incorporated in 2004 and became a wholly-owned 
subsidiary of in 2008, when the foreign entity purchased its shares. 
The Petitioner provided a copy of its New York Certificate of Incorporation indicating that it was 
established in December 2004, and authorized to issue 200 shares of common stock with no par 
value. The Petitioner has submitted a copy of its stock certificate number 1 indicating that all 200 
shares were issued to on January 9, 2008, as well as a stock ledger indicating that 
no shares had been issued until the foreign entity acquired these shares for a purchase price of 
$45,000 in 2008. 
In the denial decision, the Director acknowledged this evidence, but found that there were 
unresolved inconsistencies regarding the Petitioner's ownership based on the information it provided 
in its corporate tax 
returns for the years 2008 and 2009. In both tax returns, the Petitioner had 
indicated that it had two stockholders: the Beneficiary ( 
1 0%) and the foreign entity (90%). The 
Director determined that this information contradicted the Petitioner's claim that it is a wholly­
owned subsidiary of the foreign company. 
The Director also acknowledged the Petitioner's response to a NOID, in which it submitted copies of 
its revised tax returns for the years 2004 through 2014, noting that the error had been rectified. All 
of the submitted tax returns identified as the Petitioner's sole owner. However, the 
Director declined to consider this evidence because it was recently prepared to comply with the 
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Matter (?f T-G- Inc. 
issues raised in the NOID, and because the Petitioner had not provided evidence that it actually tiled 
amended tax returns with the Internal Revenue Service (IRS). 
Finally, the denial decision also states that the Director ''performed a search for [the Petitioner] in 
the website" which revealed that the Petitioner operates in a "single location" and therefore 
does not appear to have a qualifying relationship with the foreign entity. 
On appeal, the Petitioner submits partial copies of IRS Forms 1120X, Amended U.S. Corporation 
Income Tax Return, for the years 2008 and 2009, which bear IRS receipt stamps dated April 7, 2017. 
The Petitioner does not include copies of the full returns that accompanied these filings. 
The Petitioner also objects to the Director's reliance on the · website, arguing that it was 
inappropriate for him to use this website to authenticate the Petitioner's information. The Petitioner 
notes that U.S. Citizenship and Immigration Service (USCIS) typically uses the system, which 
is based on information from The Petitioner provides a copy of its recently-
updated report indicating that it is owned by 
Upon review, we agree with the Petitioner, in part, as the Director should have given prior notice to 
the Petitioner of potentially derogatory information obtained from outside the record and provided 
an opportunity to rebut this information before citing to information obtained from the outside 
source in a denial decision. See 8 C.F.R. § 103.2(b)(16)(i). As the Director did not provide the 
Petitioner with this prior notice, his reliance on the ' website was not appropriate and we 
will disregard the information reported there. However, after reviewing the totality of the evidence, 
we find that the record still contains unresolved inconsistencies pertaining to the qualifying 
relationship. 
First, the Petitioner's statements and evidence regarding its prior ownership have been inconsistent. 
At the time of filing, the Petitioner indicated it became a subsidiary of in 2008 when 
the foreign entity acquired all of its shares. However, because the company was established in 
December 2004 and has been filing tax 
returns reporting revenues since that time. it is reasonable to 
consider whether the Petitioner had a previous owner or owners. 
In fact, in support of a prior Form I -140 which is part of the record of proceeding, the Petitioner 
submitted copies of its federal tax returns for the years 2004 through 2007. The Petitioner's 
accountant-prepared tax 
returns for 2004 and 2005 identify the Beneficiary as the sole owner of the 
company and indicate the company had issued common stock valued at $101.856. The Petitioner· s 
2006 tax return for the year December 1, 2006, to November 30, 2007, indicates that the Petitioner 
had two owners, including an unidentified Indian owner with a 90% ownership interest. This tax 
return pre-dates the foreign entity's purchase of the Petitioner's shares, which is claimed to have 
occurred in January 2008. 
The "rectified'' tax returns submitted in response to the Director's NOID further confused the issue 
because they indicated that the foreign entity held sole ownership of the Petitioner from the date of 
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Matter of T-G- Inc. 
its incorporation in 2004. This information directly contracts the Petitioner's previous claim that the 
foreign entity acquired an ownership interest in the Petitioner in 2008. 
The Petitioner later claimed that the foreign entity sent the Beneficiary to open the U.S. otlice in 
2004. HO\vever, if the shares were issued to him at that time and later transferred to the foreign 
entity, it is unclear why the Petitioner did not consistently state this and why such transfer was not 
documented in the Petitioner's own stock ledger and stock certificates. Both versions of the 
Petitioner's 2004 federal tax return indicate that the company issued stock valued at over $100.000 
during that tax year, while the Petitioner claims that the foreign entity acquired all of the stock for 
$45,000 approximately three years later and had not issued its shares previously. If the Petitioner 
actually issued stock in 2004, this raises doubts regarding the credibility of the evidence indicating 
that the company issued its first stock certificate in January 2008. 
In light of these unresolved issues, the Petitioner's stock ledger and stock certificates alone are 
insufficient to establish that the foreign entity is the Petitioner's sole 0\Vner as claimed. The 
corporate stock certificate ledger, stock certificate registry, corporate byla\vs, and the minutes of 
relevant annual shareholder meetings must all be examined to determine the total number of shares 
issued, the exact number issued to the shareholder, and the subsequent percentage 0\Vnership and its 
effect on corporate control. In addition, a petitioning company must disclose all agreements relating 
to the voting of shares, the distribution of profit, the management and direction of the subsidiary, and 
any other factor affecting control of the entity. See Maller (!!'Siemens 1\lfed ,~vs .. Inc .. 19 I&N Dec. 
362 (Comm'r 1986). Without full disclosure of all relevant documents. we are unable to determine 
the elements of ownership and control. 
Based on the inconsistencies discussed above, the Petitioner has not met its burden to establish that it 
has a qualifying relationship \Vith the foreign entity. 
III. ONE YEAR OF EMPLOYMENT ABROAD 
The Director also determined that the Petitioner did not establish that the Beneficiary had one year of 
employment abroad in a managerial or executive capacity during the requisite three-year period. 1 
The regulations require that, if a beneficiary is already in the United States working for an entity that 
has a qualifying entity with their foreign employer, the petitioner must establish that the beneficiary 
was employed by the entity abroad in a managerial or executive capacity for at least one year in the 
three years preceding the beneficiary's entry as a nonimmigrant. See 8 C.F.R. § 204.5(j)(3 )(i)(B). 
1 
Although the Director concluded that the Beneficiary did not have the required year of employment abroad in a 
managerial or executive capacity, the denial decision did not reach a discussion of the Beneficiary's employment 
capacity and instead focused on whether the evidence was sufficient to establish that he had one year of employment 
abroad during the relevant three-year period. As we find that the Petitioner did not overcome this basis for denial, we 
will not address whether the evidence establishes that his claimed foreign employment was in a managerial or executive 
capacity, as defined at section IOI(a)(44) ofthe Act. 8 U.S.C. §I JOJ(a)(44). 
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Matter of T-G- Inc. 
The Beneficiary began working for the Petitioner as an L-1 A nonimmigrant intracompany transferee 
in October 2008 and the Petitioner indicated on the Form 1-140 that he had a petition to extend that 
status pending when it filed this immigrant petition in August 2010.2 The supporting letters from the 
Petitioner and foreign entity stated that employed the Beneficiary as its international 
marketing manager from 1997 until September 2008. 
In the denial decision , the Director noted that the Beneficiary had spent a significant amount of time 
in the United States in 2005, 2006, and 2007 (146 days, 176 days, and 187 days, respectively), and 
therefore could not establish one year of continuous employment abroad with the foreign entity in 
the three years preceding his entry in L-1 A status. 3 
The Director also mentioned other facts that raised questions as to whether he had been employed by 
the foreign entity during this period. First, the Director noted that the Beneficiary had signed the 
Petitioner's stock certificate in his capacity as "president" in January 2008, and had also signed the 
Petitioner's lease agreements dating back to April 2005. The Director expressed doubts that he 
would have signed these documents if he was employed abroad as the foreign entity's international 
marketing manager. Further, the Director noted that the Beneficiary did not list a foreign employer 
on his Form G-325A, Biographic Information, which he tiled with his Form 1-485. Application to 
Register Permanent Residence or Adjust Status. 
On appeal, the Petitioner asserts that the Beneficiary was required to travel extensively as the 
foreign entity's international marketing manager, noting that, in addition to spending time in the 
United States, he traveled to Hong Kong, Thailand, United Arab Emirates, and Australia between 
2005 and 2007. The Petitioner explained that the Beneficiary signed the Petitioner's stock 
certificate and leases because he was the foreign entity's designee to lay the foundation for the U.S. 
office, prior to the formal transfer of shares to the foreign entity in 2008. 
The Petitioner further notes that it had submitted an amended Form G-325A in response to the 
NOlO. The Petitioner states that the Beneficiary's omission of information regarding his last 
employment abroad was merely a technical error. The amended version lists the Beneficiary's 
employment with from 1997 until September 2008. In addition. the Petitioner 
emphasizes that it had provided the Beneficiary's personal Indian tax returns and monthly pay 
receipts, which were not mentioned in the Director's decision. The Petitioner maintains that the 
Beneficiary's periods of time spent in the United States should not preclude a finding that he was 
employed abroad for at least one year during the three years preceding 
his transfer in L-1 A status. 
Upon review, the Petitioner has not established that the Beneficiary had at least one year of 
employment abroad during the three years preceding his entry as a nonimmigrant (September 2005 
2 USCIS records show that the Beneficiary had been granted one extension of his L-1 A status through January 15, 20 I 0. 
The Petitioner filed two additional extension requests, but USCIS denied both petitions ( and 
in March 20 I 0 and May 20 I 0, respectively. The Petitioner later acknowledged that its extension 
request had been denied in May 20 I 0. 
3 The Beneficiary was also in the United States in B-2 visitor status from October 2007 unti I the approval of the initial L-
1 A approval in September 2008. 
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Matter <~[ T-G- Inc. 
to September 2008). However, the Director appears to have applied a strict continuous employment 
requirement that applies to the L-1 nonimmigrant classification, which has similar, but not identical 
requirements with respect to a beneficiary's one year of employment abroad. However, even the L-
1 nonimmigrant classification, allows for non-interruptive, intervening trips to the United States. 
See 8 C.F.R. § 214.2(1)(1)(ii)(A). Periods of time spent in the United States do not count towards 
USCIS' calculation when determining whether the Beneficiary had one full year of employment 
abroad , but will not prevent us from concluding that he accumulated a full year during a three year 
period. 
Based on the Director's calculations, the Beneficiary spent 3 76 days outside the United States during 
the 2006 and 2007 calendar years and was not disqualified from meeting this eligibility requirement 
based on his physical presence as a visitor in the United States during this period. We also accept 
the Petitioner's explanation that the Beneficiary simply erred when he did not provide a full five­
year employment history on his original Form G-325A completed in 2010. 
However, there are other deficiencies and anomalies in the record and the Petitioner has not met its 
burden to establish that employed the Beneficiary for at least one year between 
September 2005 and September 2008. 
First, it appears that the Beneficiary was in the United States for all of 2008 prior to being granted a 
change of status from B-2 to L-1A in September of that year. While the Petitioner submitted 
payment vouchers from the foreign entity indicating that he received a salary payment in each month 
of that year, his qualifying employment with the foreign entity must have taken place while he was 
abroad . 
The Petitioner also provided the Beneficiary's monthly payment vouchers for 2007. but the 
Beneficiary was in the United States for approximately one half of that year. For this reason, these 
documents cannot establish a full year of employment abroad and we would need to see additional 
records to verify his employment prior to 2007. The record does not include evidence of the foreign 
entity's monthly salary payments to the Beneficiary in the years 2005 or 2006. 
However, the Petitioner did submit copies of the Beneficiary's personal Indian tax returns. The 
information provided on these returns casts doubt on the Petitioner's claim that the Beneficiary was 
a salaried employee of the foreign entity during the relevant three-year period. 
The Beneficiary 's Indian tax return (Form ITS-2D) for the 2006-2007 assessment year (which 
reports income for the year April 1, 2005, to March 31, 2006), indicates his "income from salary'" as 
"Nil" and his "income from house property" as Rs. 96,040. The '·Computation of Total Income'· 
statement attached to the 
tax return confirms that his sole source of income in that year came from 
leasing a residential property located in India. 
For the 2007-2008 assessment year (for the year ended on March 31 , 2007). the Petitioner submitted 
an acknowledgement from the Indian Tax Department showing that the Beneficiary had filed his tax 
return reporting gross income of Rs. 120,400. An attached ·'Co mputation of Total Income" 
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Matter of T-G- Inc. 
statement indicated that the Beneficiary's sole source of income was once again the letting of a 
residential property located in India. 
Finally, the Petitioner submitted the same acknowledgement document for the 2008-2009 
assessment year (for the year ended on March 21, 2008). The accompanying ··computation of Total 
Income" statement indicates that the Beneficiary received Rs. 204,000 in income from both "rent & 
salary" but did not provide a breakdown of how much income he derived from each source. 
These documents contradict the foreign entity's handwritten "journal vouchers" indicating that 
paid the Beneficiary a salary of Rs. 15,000 per month or Rs. 180,000 per year in 2007 
and 2008. Further, the foreign sole proprietor's own tax return for the year ended on March 31, 
2009 indicates that paid only Rs. Ill ,200 in total salaries in that year, while the 
Petitioner submitted payroll journals showing that the Beneficiary alone was paid Rs. 155,000 
during 2008. 
The Petitioner must resolve these inconsistencies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Based on the 
lack of specific payroll evidence for the years 2005 and 2006, the Beneficiary's presence in the 
United States for half of 2007 and all of 2008, and the contradictory information revealed in the 
Beneficiary's tax returns, the record does not establish that the Beneficiary had the required one year 
of employment abroad with the foreign entity in the three years preceding his entry as a 
nonimmigrant to work for the Petitioner. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also found that the Petitioner did not establish that the Beneficiary would be employed 
in the United States in a managerial or executive capacity. In the denial decision, the Director found 
that the Petitioner provided vague position descriptions for the Beneficiary that did not adequately 
explain the nature of his typical day-to-day duties, and questioned whether the company's four­
person support staff would be sufficient to relieve the Beneficiary from having to perform non­
managerial and non-executive duties. 4 
On appeal, the Petitioner maintains that the Director "completely ignored" the Beneficiary's job 
duties, which establish that the Beneficiary relies on a subordinate manager to carry out and oversee 
the company's day-to-day operations. 
The law defines the term "managerial capacity" as an assignment in which an 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 
4 The Director also cited to other "inconsistencies'' in the record. The first concerned the amount of the Beneficiary's 
proffered salary, noting that the amount offered was $42,000 in the previous Form 1-140 petition and $48,000 in the 
current petition. The record demonstrates the Petitioner's ability to pay the Beneficiary's proffered annual salary of 
$48,000 as ofthe date of filing and we disagree with the Director's finding that there was an inconsistency in this regard 
that would undermine the Petitioner's claim that it would employ the Beneficiary in a managerial or executive capacity. 
We will withdraw the comments regarding the proffered salary. 
Matter of T-G- Inc. 
manages an essential function within the organization; has the authority to hire and fire or 
recommend those as well as other 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. Further, "[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." !d. 
The term "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. 
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) ofthe Act. 
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, users 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 company's staffing levels and reporting 
structure. 
A. Duties 
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. 
In a letter submitted in support of the petition, the Petitioner stated that the Beneficiary's duties as 
president would include hiring and supervising sales and marketing employees; defining goals and 
developing marketing strategies; maintaining regular contact with existing and potential buyers; 
participating in gem and jewelry exhibitions; negotiating and finalizing contracts with buyers; 
studying and analyzing market trends; and coordinating with the principal in India. 
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Matter of T-G- Inc. 
In a separate statement submitted at the time of tiling, the Petitioner submitted a lengthy job 
description indicating that the Beneficiary would allocate 60% of his time to executive duties and 
40% of his time to managerial duties. The Petitioner divided these duties into the following 
categories: 
Duties in an Executive Capacity: 
1. Plans, develops and establishes policies and goals of the business organization in 
accordance with the overall objectives and chart of the company. (15%) 
2. The President in conjunction with Marketing/Sales Manager sets sales targets. 
standards in customer service and direct marketing initiative. (1 0%) 
3. Approves the budget for various activities and supervise their implementation. 
Monitor insurance plans, governmental liabilities and taxes and will be the 
authority for financial decision. ( 
1 0%) 
4. Actively engages in analyzing the market for core items and identities priority 
areas of potential markets in conjunction with Marketing/Sales Manager and Sales 
Representatives. ( 10%) 
5. Represent the organization at major in the world. (5%) 
6. The President ensures realization of business of the organization through a well­
structured progress review system and would send in report to the principal 
(1 0%). 
Duties in a Managerial Capacity: 
1. Plan the general outline of Company's organizational structure. (10%) 
2. Orient new employees. review position responsibilities. Establish work goals and 
objectives or standards to be achieved. ( 10%) 
3. Train, develop and motivate employees to improve current performance and to 
prepare for higher-level jobs. (1 0%) 
4. Evaluate the performance, review salaries and take personnel actions such as 
promotions, performance awards, demotions, etc. (5%) 
5. Help maintain discipline, recommend and administer corrective action according 
to policy and procedures. (5%) 
The Petitioner re-submitted this same position description in response to a request for evidence 
(RFE). In response to the Director's NOID, however, the Petitioner submitted a revised. six-page 
job description that divided the Beneficiary's duties into only five categories and did not make 
distinctions between executive and managerial tasks. The categories of duties included: 
1. Oversee all sales transactions executed by the Marketing/Sales Manager with 
wholesalers and retailers. (25%) 
2. Shall work with the Book-keeper on a weekly basis with the payables and 
receivables report, to ensure the organizations ability to meet payables, payroll 
and expenses. Defines and allocates budget. staff and other resources to 
accomplish objectives for organizational goals. ( 1 5%) 
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Matter of T-G- Inc. 
3. Identify problem areas in smooth running of the organization. Develop and 
recommend new policies and procedures for resolution in coordination with the 
President. (25%) 
4. Negotiate and liaison with shipping agent and various governmental organizations 
through the concerned personals [sic]. (I 0%) 
5. Create monthly report for review by the President. in coordination with the Sales 
Personals [sic] & Marketing/Sales Manager; Review inventory requirement send 
in by marketing/sales department fortnightly and co-ordinates with the Principal 
for the purchase of the same. ( 1 0%) 
We note that these duties provided in response to the NOID did not add up to I 00%. On appeaL the 
Petitioner again references this description and indicates that the Beneficiary allocates 20% of his 
time to #2 above, and 15% of his time to both #4 and #5. so that the percentages now amount to 
100%. 
Upon review, although the Petitioner has submitted two different lengthy descriptions of the 
Beneficiary's proposed duties that establish his level of authority as the company's senior employee. 
we agree with the Director's assessment that the Petitioner has not clearly conveyed the nature of the 
Beneficiary's primary day-to-day duties. The Petitioner's initial summary of the Beneficiary's 
duties indicated that he would be involved in sales and marketing duties alongside the company's 
other employees. Specifically, the Petitioner stated that he would be "maintaining regular contact 
with existing and potential buyers; participating in gem and jewelry exhibitions; negotiating and 
finalizing contracts with buyers; [and] studying and analyzing market trends.'" Most of these non­
qualifying duties were not included among the Petitioner's lengthier breakdowns of the 
Beneficiary's position, which raises questions as to whether those expanded job descriptions 
encompassed all of his proposed non-managerial tasks. 
Further, several of the broad duties outlined in the lengthier job descriptions seem incongruous with 
the Petitioner's business. For example, the Petitioner initially stated that the Beneficiary would 
spend 10% of his time "planning the general outline" of the company's organizational structure, and 
referred to future business units. However, such business units were never identified and the 
structure of the company remained unchanged between 2010 and 2017. While the Beneficiary has 
the authority to determine whether new positions should be created. it is evident that he would not 
spend four hours per week on this task. 
Similarly, the Petitioner's claim that the Beneficiary would spend eight or more hours per week 
(20% of his time) working with the bookkeeper in order to manage the company's financial 
activities is not supported by the record. The "secretary/bookkeeper," based on the description of 
her duties, spends 80% of her time performing secretarial and clerical duties and the Petitioner 
indicated that this employee's bookkeeping duties are limited to preparing invoices and entering data 
into the accounting system. The Beneficiary's job description submitted in response to the NOlO 
attributes a much greater role to the secretary/bookkeeper than indicated in that employee's job 
description and indicates that this employee prepares payroll documents. tax documents. and annual 
reports, among other duties. Based on this discrepancy, we cannot determine to what extent this 
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Matter of T-G- Inc. 
employee would actually relieve the Beneficiary from involvement In the company's routine 
financial activities. 
In addition, the Petitioner states that the Beneficiary is responsible for negotiating and liaising with 
shipping agents "through the Marketing/Sales manager., and therefore does not have to directly 
coordinate transportation and logistics tasks for the import, export and domestic distribution of the 
Petitioner's products. We have reviewed the Marketing/Sales manager's job description and note 
that her duties do not include any tasks related to coordinating transportation and logistics. This 
evidence calls into question whether this area of responsibility, which would require an additional 
15% ofthe Beneficiary's time, would involve managerial duties. 
Further, there are instances in which the Petitioner indicated that the Beneficiary will perform his 
duties "in coordination with the President" or "create monthly report for review by the President"" 
which creates confusion because the Beneficiary himself is the company's president. OveralL these 
incongruities detract from the probative value of the various submitted job descriptions. which, 
although lengthy, do not provide a clear or consistent picture of what the Beneficiary primarily docs 
on a day-to-day basis. 
The statutory definition of the term "executive capacity"' focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act. 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. a beneficiary must primarily 
focus on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they ''direct"" 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 of the organization.'" !d. 
Whether the broad duties attributed to the Beneficiary qualify as executive in nature depends in large 
part on whether the Petitioner established that the Beneficiary has sufficient subordinate staff to 
manage and perform the day-to-day company functions he is claimed to direct. As discussed further 
below, the record shows that the Beneficiary's four-person staff is primarily concerned with sales 
and administrative matters, and the Petitioner has not shown its ability to relieve the Beneficiary 
from significant involvement in the other operational tasks required to operate its international 
gemstone trading business. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily'' executive or managerial in nature. Sections 
101 (A)( 44 )(A) and (B) of the Act. Even though the Beneficiary may exercise discretion over the 
Petitioner's operations and possess the requisite level of authority with respect to discretionary 
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Matter of T-G- Inc. 
decision-making, the position descriptions alone are insufiicient to establish that his actual duties 
would be primarily managerial or executive in nature. 
B. Staffing and Organizational Structure 
The Director determined that the Petitioner did not demonstrate that it has an organizational 
hierarchy in place sufficient to relieve the Beneficiary from involvement in the day-to-day 
operations of the business. 
The Petitioner claimed "5+'' employees at the time of tiling. An employee list identified the 
Petitioner's five employees as (1) the president (the Beneficiary), (2) a marketing/sales manager, (3) 
a secretary/bookkeeper, and (4) two sales/marketing representatives. The Petitioner stated that it 
expected to hire three additional sales representatives and two ''office staff' who would be 
responsible for shipping and delivery activities, handling returned merchandise, bank deposits. and 
other duties that were not specified. The Petitioner provided evidence that its employees received 
their base salaries in 2010, but did not show that it has paid its sales representatives a salary plus 
commission, as claimed. 
The Petitioner's staffing remained relatively unchanged while the Form l-140 was pending 
adjudication. It hired one additional marketing/sales agent and replaced the previous 
marketing/sales manager with a new hire prior to the denial of the petition. Our review of the 
Petitioner's staffing will be based on the structure of the company at the time of tiling. The 
Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 1 03.2(b )(1 ). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers.'' See section 10l(a)(44)(A)(i) and (ii) of the Act. The Petitioner has not 
claimed that the Beneficiary would be responsible for managing a function. but rather indicates that 
he would supervise a subordinate manager or professional. Personnel managers are required to 
primarily supervise and control the work of other supervisory. professionaL or managerial 
employees. 5 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." 8 
C.F.R. § 204.50)( 4)(i). If a beneficiary directly supervises other employees. the beneficiary must 
also have the authority to hire and tire those employees, or recommend those actions. and take other 
personnel actions. 8 C.F.R. § 204.5(j)(2). 
5 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. CJ 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 I 0 I (a)(32) of the Act, states that "[tlhe term pro(ession 
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 a subordinate employee. 
12 
Matter of T-G- Inc. 
The Petitioner indicates that the Beneficiary supervises a full-time marketing/sales manager who is 
in charge of the day-to-day marketing/sales activities and spends approximately 20% of her time on 
duties related to supervising the training and performance of the marketing/sales representatives. 
The Petitioner indicated that this position requires a bachelor's degree and two years of experience. 
and provided copies of bachelor" s diplomas for both employees who have worked in the position. 
The employee who filled the position at the time of filing had a foreign bachelor of arts degree in an 
unspecified field, while the latter employee has a foreign bachelor of commerce degree. The 
Petitioner did not indicate what type of degree is required for the position. and the record does not 
contain sufficient information to establish that the position is a professional position that requires the 
equivalent of a U.S. bachelor's degree in a specific course of study related to the duties performed. 
While the Petitioner depicts the marketing/sales manager as a first-line supervisor. this employee's 
interactions with the marketing/sales agents are limited to "report to the President on the various 
developments/requirements in training/appraisal of Marketing Sales Agents etc:· and ··co-ordinate 
with the appointed Marketing/Sales agents in different areas & respond to their requirements. 
supervise their performance & report to the President on their function.'" These duties require a total 
of 20% of the marketing/sales manager's time and do not support a finding that this is primarily a 
supervisory position. 
Further, even if we conclude that the marketing/sales manager is a supervisory position. it is unclear 
how much time the Beneficiary spends on supervising this employee given the two different 
breakdowns of his duties submitted by the Petitioner. Further. the Petitioner has not indicated that 
any other employees have supervisory responsibilities and has not claimed to employ other 
professional personnel. The record does not support a finding that the Beneficiary primarily 
supervises a subordinate statl of managers, supervisors or professionals in support of a claim that he 
qualifies as a personnel manager. 
We acknowledge the Petitioner's assertion that the Director over-emphasized the small size of the 
company in concluding that the Beneficiary would not be employed in a qualifying capacity. The 
Petitioner correctly observes that we must take into account the reasonable needs of the organization 
and that a company's size alone may not be the only factor in denying a visa petition for 
classification as a multinational manager or executive. See section 1 01 (a)( 44 )(C) of the Act. 
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. 2001 ). 
The Petitioner has three marketing/sales staff and one ''secretary/bookkeeper'" who mainly performs 
secretarial and administrative functions. While the Petitioner indicated that it will hire additional 
"office staff' in the future, it has not identified any current employees who purchase inventory. 
coordinate the logistics, transport, and delivery of its products, or perform most of the day-to-day 
banking and financial activities of the company. Further, at least one summary of the Beneficiary" s 
duties attributes routine sales and market research duties to him and suggests that he performs some 
of these duties alongside the company's other sales and marketing staff. In addition. the record 
13 
.
Matter of T-G- Inc. 
includes copies of the Beneficiary's identification badges from various gemstone trading events 
identifying him as a "buyer." Therefore, while the Petitioner correctly states that there is no minimal 
staffing requirement applicable to this visa classification, the Petitioner must still show that the staff 
in place at the time of filing would be sufficient to relieve the Beneficiary from significant 
involvement in the non-managerial, day-to-day operations of its gemstone trading business. The 
Petitioner has not met this burden. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
employed in a managerial or executive capacity. 
V. FINDING OF FRAUD OR WILLFUL MISREPRESENTATION 
The Director's decision concluded with a statement that "USCIS is also denying this Form 1-140 
with a finding of fraud or willful misrepresentation of a material fact:· 
Any foreign person 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 the Act is inadmissible. See section 212(a)(6)(C)(i) of the 
Act, 8 U.S.C. § 1182(a)(6)(C)(i). 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
willfully makes a material misstatement to a government official for the purpose of obtaining an 
immigration benefit to which one is not entitled. Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 
(BIA 1975). The term "willfully" means knowing and 
intentionally. as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Maffer ql Tijam, 
22 I&N Dec. 408, 425 (BIA 1998); Matter (?l Healy 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." Matter of Ng. 17 I&N Dec. 536. 537 (BlA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings, he or she must determine: 1) that the petitioner or beneficiary made a false 
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. See Maffer 
<?lM-, 6 I&N Dec. 149 (BIA 1954); Matter o{L-L-. 9 I&N Dec. 324 (BIA 1961 ); Matter o{Kai Hing 
Hui, 15 I&N Dec. at 288. 
Here, the Director's summary finding of "fraud or willful misrepresentation of a material fact" 
appears to have been made on the basis of number of discrepancies noted earlier his decision. rather 
than on a specific determination that the Petitioner willfully made a particular false representation of 
a material fact to USCIS. As noted in our discussion above, the Director overlooked the Petitioner's 
explanation for certain discrepancies and also relied, in part. on information obtained from sources 
outside of the record of proceeding (i.e., the '· website) without providing the Petitioner 
14 
Matter of T-G- Inc. 
with notice. As such, we find that there were insufficient facts to support the Director·s iinding and 
the finding is withdrawn. 
However, our withdrawal of the Director's finding of fraud or willful misrepresentation of a material 
fact should not been deemed a finding that we find the evidence submitted with this petition to be 
credible. We have noted material discrepancies between the Beneficiary"s foreign tax returns and 
payroll records that cast doubt on his employment with the foreign employer and which were not 
addressed in the Director's decision. If the Petitioner chooses to pursue this matter and cannot 
resolve those discrepancies. this evidence would raise serious concerns about the veracity of the 
Petitioner's assertions regarding the Beneficiary"s foreign employment. Doubt cast on any aspect of 
a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence otTered 
in support of the visa petition. Ho, 19 I&N Dec. at 591. 
VI. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that it has a qualifying 
relationship with the Beneficiary's foreign employer, that the Beneficiary had one year of 
employment with the foreign entity in the three years preceding his entry to the United States as a 
nonimmigrant, or that the Petitioner would employ the Beneficiary in a managerial or executive 
capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of T-G- Inc .. ID# 664812 (AAO Oct. 11, 20 17) 
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