dismissed EB-1C Case: Granite And Marble Export

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 10, 2015 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an exporter of granite and marble, seeks to classify the beneficiary as a multinational 
manager or executive. See Immigration and Nationality Act (the Act) § 203(b)(l)(C), 8 U.S.C. 
1153(b)(l)(C). The Director, Nebraska Service Center, denied the petition.' The matter is now 
before us on appeal. The appeal will be dismissed. 
The Petitioner is a California corporation and states that it has a qualifying relationship with 
located in India. The Petitioner seeks to employ the Beneficiary as its Chief 
Executive Officer/Manager. 
The Director denied the petition on January 13, 2010, concluding that the Petitioner did not establish 
that it had been doing business in the United States for at least one year prior to the petition's filing 
date, or that the Beneficiary's duties, either with his former foreign employer or in the United States, 
were in a qualifying managerial or executive capacity. 
On appeal, the Petitioner submits a legal brief. The Petitioner contends that the Director applied an 
impermissibly high standard of proof, and did not follow required procedures regarding derogatory 
evidence. The Petitioner asserts that the Director drew unwarranted conclusions from incomplete 
evidence, and that an unbiased review of the record supports approval of the petition. 
Before turning to the merits of the petition, we note that, on appeal, the Petitioner states: 
"Immigration regulations state that a petitioner must be provided adverse evidence where a denial is 
based on adverse or derogatory information , and the petitioner must be given an opportunity to rebut 
it" (emphasis in original). The Petitioner quotes the regulation at 8 C.F.R. § 103.2(b)(l6)(i) , which 
states, in pertinent part: 
If the decision will be adverse to the applicant or petitioner and is based on 
derogatory information considered by the Service and of which the applicant or 
1 
This immigrant petition as initially denied by the Director, California Service Center on August 9, 2005 and we 
dismissed the Petitioner's subsequent appeal on March 20, 2006 . The Petitioner then filed a lawsuit in the United States 
District Court, Central District of California. Prior to entry of a ruling, the Petitioner reached a settlement agreement with 
the government and the case was returned to us for a new decision . On July 21, 2009, we issued a decision remanding 
the case to the Nebraska Service Center, which ultimately denied the petition on January 13, 20 I 0. 
Matter of S-S-, Inc. 
petitioner is unaware, he/she shall be advised of this fact and offered an opportunity 
to rebut the information and present information in his/her own behalf before the 
decision is rendered. 
This regulation does not require that the evidence "must be provided" to the petitioner, only that 
U.S. Citizenship and Immigration Services (USCIS) must advise a petitioner of the evidence's 
existence and provide the petitioner a chance to rebut it. Regardless, the Petitioner does not identify 
any "adverse or derogatory information" that the Director cited in the denial notice without prior 
notice to the Petitioner. 
I. THE LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. - Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain multinational executives and managers. An alien is described in this 
subparagraph if the alien, in the 3 years preceding the time of the alien's application for 
classification and admission into the United States under this subparagraph, has been 
employed for at least 1 year by a firm or corporation or other legal entity or an affiliate 
or subsidiary thereof and the alien seeks to enter the United States in order to continue to 
render services to the same employer or to a subsidiary or affiliate thereof in a capacity 
that is managerial or executive. 
The language of the statute is specific in limiting this provision only to those executives and managers 
who have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of 
that entity, and who are coming to the United States to work for the same entity, or its affiliate or 
subsidiary. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. The 
regulation at 8 C.F.R. § 204.5G)(5) states: 
No labor certification is required for this classification; however, the prospective 
employer in the United States must furnish a job offer in the form of a statement 
which indicates that the alien is to be employed in the United States in a managerial 
or executive capacity. Such letter must clearly describe the duties to be performed by 
the alien. 
Section 101(a)(44) ofthe Act, 8 U.S.C. § 1101(a)(44), provides: 
2 
Matter of S-S-, Inc. 
(A) The term "managerial capacity" means an assignment within an organization in which 
the employee primarily-
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization) or, if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
(B) The term "executive capacity" means an assignment within an organization in which 
the employee primarily-
(i) directs the management of the organization or a maJor component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
101(a)(44)(C) ofthe Act. 
3 
(b)(6)
Matter of S-S-, Inc. 
II. THE ISSUES ON APPEAL 
The issues to be addressed are whether the Petitioner established: (1) that it had been doing business 
for one year at the time the petition was filed; (2) that the Beneficiary was employed in a qualifying 
managerial or executive capacity abroad for one year within the three years preceding his admission 
to the United States in September 2003; and (3) that the Beneficiary would be employed in a 
qualifying managerial or executive capacity in the United States. 
A. Doing Business 
1. Facts 
The regulation at 8 C.F.R. § 204.5(j)(3)(i)(D) requires the petitioner to submit evidence that the 
prospective United States employer has been doing business for at least one year. "Doing business " 
means the regular, systematic, and continuous provision of goods and/or services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office. 8 C.F.R. 
§ 204.5(j)(2). 
The record includes a copy of the Petitioner's October 31, 2002 articles of incorporation , showing 
that the company was incorporated 19 months before the petition's June 1, 2004 filing date. The 
Petitioner also submitted a copy of notes from a March 10, 2003 shareholder's meeting. The earliest 
evidence relating directly to the Petitioner 's business activity , as opposed to its existence as a 
corporation, dates from October 2003. Documentation from that month included a sublease 
agreement dated October 8, 2003, effective November 1 of that year; a telephone bill stating "New 
Service Established on Oct 2, 2003"; an October 9, 2003 invoice from showing 
the Petitioner's purchase of computer equipment and "6 hours onsite to fix wiring and setup local 
network/training"; and evidence that it joined the on October 17, 2003. 
The Petitioner also documented its participation in several trade shows, the earliest of which 
occurred in October 2003. 
In a request for evidence (RFE) dated September 25, 2009, the Director noted that, on California 
Franchise Board Form 100, California Corporation Franchise or Income Tax Return, the Petitioner 
listed as the "[ d]ate business began in California or date income was first derived 
from California sources," and that "[a] letter from states that the petitioner's 
business checking account was opened in The Director instructed the Petitioner 
to "submit a detailed overview of the early chronology of the U.S. petitioner 's operations. Please 
support all statements with evidence." Noting that the Beneficiary entered the United States on 
September 16, 2003, the Director asked: "Who was running the company (if anyone) prior to 
September 16, 2003?" In response , the Petitioner stated: "The company was not engaged in business 
prior to this date." A separate , unsigned document, prepared by the Petitioner , repeated this basic 
information: "Nobody was running the company prior to September 16, 2003. Once [the 
Beneficiary] was in the country on September 16, 2003, then only actual business · activities started." 
4 
(b)(6)
Matter of S-S-, Inc. 
In the January 13, 2010 denial notice, the Director concluded that "the evidence does not establish 
that the U.S. petitioner was doing business for at least one year prior to the June 1, 2004 filing of the 
petition." 
On appeal, the Petitioner asserts that it "has been in existence for over 1 year prior to the filing of the 
petition," as documented by the submission of "the company's first corporate minutes dated March 
13, 2003." 
Upon review, and for the reasons discussed below, we find that the Petitioner has not established that 
it was doing business for at least one year prior to the petition's filing date. 
2. Analysis 
The Petitioner's March 2003 meeting minutes indicate that the company existed at the time, but not 
that it was "doing business" through regular, systematic, and continuous provision of goods and/or 
services. By regulation, "the mere presence of an agent or office" does not constitute "doing 
business." The petitioning entity existed as a legal entity in late 2002 and early 2003, but the 
Petitioner has acknowledged that the company did not engage in "actual business activity" before the 
Beneficiary entered the United States on September 16, 2003. This information, by itself, renders 
the Petitioner ineligible for the benefit sought. USCIS cannot properly approve this petition with a 
priority date of June 1, 2004, because the Petitioner did not begin doing business until early 
less than one year before the filing date. 
The appeal will be dismissed as the Petitioner did not establish that it satisfied the regulatory 
requirement at 8 C.F.R. § 204.5(j)(3)(i)(D). However, we will also consider the other two stated 
grounds for denial, both ofwhich concern the nature ofthe Beneficiary's job duties. 
B. Executive or Managerial Capacity Abroad 
1. Facts 
In a letter dated May 11, 2004, which the Beneficiary signed in his capacity as CEO of the 
petitioning entity, the Petitioner stated that the beneficiary "has served as the CEO of 
in India [of which the petitioner is a subsidiary] from June 3, 1998 until the time of 
his transfer to the United States in September, 2003." 
The Petitioner's initial submission contained no detailed description of the Beneficiary's duties with 
the foreign entity. The Petitioner's response to an RFE issued in 2005 included a list of 23 duties, 
each occupying 10 percent or less of the Beneficiary's time. The two major duties were: "Direct, 
plan and implement policies , objectives and activities of organizations or businesses" and "Direct, 
coordinate, review and supervise activities in sales, export and Manufacturing of Marble and Slate 
Tiles." All other claimed duties were said to occupy 5 percent of his time or less. These lesser 
duties included: "Deliver speeches, write articles, and present information at meetings or 
conventions" and "Review and negotiate on the final contract price." An organizational chart 
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(b)(6)
Matter of S-S-, Inc. 
submitted at the time indicated that three managers reported directly to the beneficiary, specifically a 
Manufacturing Manager , a Sales Manager and an Exports Manager 
In the 2009 RFE, the Director advised the Petitioner that the previous information did not contain 
sufficient details. The Director requested "a very detailed description of the beneficiary's actual 
day-to-day tasks in his position abroad," as well as organizational charts for the period when the 
Beneficiary worked for the parent company. The Petitioner's response included payroll figures from 
1998 to 2003. These records identify the person whom the Petitioner had previously 
named as the parent company 's "Sales Manager," as an "Assistant" who only worked for the 
company from August 2002 to January 2003, and in April 2003. name does not 
appear on the payroll lists at all. 
The Petitioner submitted three organizational charts representing the structure of the foreign entity 
for the years ending March 31 of 2001, 2002 and 2003. Each chart indicated that the Beneficiary 
was "in[]charge [of] sales/purchase" and directly supervised one employee, specifically the 
Manager, Procurement & Dispatch , identified as (200 1 ) , (2002) and 
(2003). The Manager, Procurement & Dispatch, supervised the Executive Quality 
Control, Asst. Quality Control and Asst. Dispatch. The 2003 chart showed two names for each of 
the three positions beneath the Manager, Procurement & Dispatch. Other management tracks, which 
did not report to the Beneficiary, included an Accountant and an Assistant who both reported to the 
Director, Financial Matters, and a Record Keeper and Assistant who reported to the Director, 
Sales/Income Tax & Legal Affairs. 
The Petitioner submitted a new foreign job description for the Beneficiary which included nine 
items, the most significant of which were "Supervising work of other supervisory or managerial 
employees," said to occupy 30 percent of the Beneficiary 's time, and "Supervising day-to-day 
operations of the company" for 20 percent of his time. The list indicated that the Beneficiary 
devoted 1 0 percent of his time to "Overseeing Government Reporting" and 5 percent of his time to 
"Oversee[ing] banking and banking relationships ," although the organizational charts did not place 
"Financial Matters" or "Tax & Legal Affairs " under his authority. 
The record shows that on May 23, 2007, filed a Form I-140 on the 
Beneficiary's behalf, seeking to employ the Beneficiary as a Buyer. The Director, Texas Service 
Center, approved that petition on May 29, 2007, granting the Beneficiary classification as a skilled 
worker under section 203(b)(3) of the Act, with a priority date of February 26, 2007. The approved 
petition included an approved ETA Form 9089, Application for Permanent Employment 
Certification. Part K of that form requests information regarding "all jobs the alien has held during 
the past 3 years" as well as "any other experience that qualifies the alien for the job opportunity for 
which the employer is seeking certification. " Pat1 K of ETA Form 9089 listed two full-time jobs 
that the Beneficiary had held: Manager at the petitioning company from September 18, 2003 to 
present, and Buyer for . _ in India from September 1, 1994 to September 1, 1998. 
The form did not mention the Beneficiary's employment with 
(b)(6)
Matter ofS-S- , Inc. 
The Director, in the RFE issued on September 25, 2009, noted that the Beneficiary did not list his 
employment with on ETA Form 9089, and that his claim to have worked full-time 
for until September 1998 conflicted with the Petitioner's claim that the 
Beneficiary "served as the CEO of ... from June 3, 1998 until ... September, 
2003." In response, the Petitioner stated that the Beneficiary "also owned ... and 
was its principal buyer" during the dates listed on ETA Form 9089, and that the Beneficiary "phased 
out" the company as became more established. The Petitioner submitted no 
evidence to support these claims, stating: "Petitioner no longer has access to documents regarding 
. . The Petitioner also stated that the Beneficiary "received compensation 
commencing approximately April2000." 
In the 201 0 denial notice, the Director stated that the Petitioner had not addressed the omission of 
from ETA Form 9089, and that the job description submitted in response to the 
RFE was "a less detailed description that varied significantly from the first" (emphasis in original). 
The Director also found that the various organizational charts and payroll records are not consistent 
with respect to the names or titles of the Beneficiary's claimed subordinates. 
On appeal, the Petitioner states that the information omitted from ETA Form 9089 was irrelevant in 
the context of that form, and that "USCIS mischaracterized the job duties and description provided 
in response to the RFE." 
Upon review, and for the reasons stated below, we find that the Petitioner has not established that the 
Beneficiary's former positon abroad with was in a qualifying managerial or executive 
capacity. 
2. Analysis 
On appeal, the Petitioner contends that Part K of ETA Form 9089 does not require a complete 
accounting of all the Beneficiary's past employment, and that the Beneficiary's work for 
did not meet the criteria for inclusion on that part of the form because it did not occur within 
three years of the execution of the form, and was not relevant to the "Buyer" position offered in the 
2007 immigrant petition. The Petitioner 
maintains that the Beneficiary could have worked for 
and at the same time, because "[i]t is not uncommon for driven 
individuals and entrepreneurs to work full time for more than one employer concurrently." This last 
assertion is general, conjectural, and unsupported by the record. Nevertheless , this is not a fatal flaw 
in the petition, as the Petitioner need establish only one year of executive or managerial employment 
by the Beneficiary prior to his entry into the United States, and 1998 preceded the statutory three­
year period during which that employment had to take place. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros . Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd , 905 
F.2d 41 (2d. Cir. 1990). 
..., 
Matter of S-S-, Inc. 
Regarding the Beneficiary's job description, the Petitioner states: "The RFE response included 
additional details ... in over 3 pages of text of which only a portion consisted of the 9 general 
duties." The RFE response included several paragraphs of information about the Beneficiary's 
duties, but these add up to considerably less than "3 pages of text" unless one counts statements 
quoted or paraphrased from the RFE itself. The information consisted primarily of examples 
correlated with elements of the statutory definitions of executive and managerial capacity. Some of 
the specific examples (such as decisions about purchases) derive from either the first or second 
version of the percentage breakdown; others show no specific estimated percentage. In the RFE, the 
Director had stated: "Estimate the percentage of time dedicated to each specific task. Do not lump 
the tasks together when estimating the percentage of time dedicated to each specific task." The 
Petitioner, in the RFE response, did not follow these instructions, instead providing estimated 
percentages for nine very broad categories. 
With respect to the discrepancies in the organizational charts, the Petitioner does not deny that they 
exist or attempt to resolve them. Instead, the Petitioner states: "It is uncommon for companies of 
[the foreign entity's] size to maintain an organizational chart." The Petitioner also contends that 
"[r]ecord keeping is more informal" in "Indian Business Culture" than in the United States. These 
assertions are, themselves, unsupported, appearing only in a brief prepared by counsel. The 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter qf Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
By signing Form I-140, the Petitioner declared under penalty of perjury that the information 
submitted was true and correct to the best of the Petitioner's knowledge. The Petitioner, on appeal, 
essentially concedes that the organizational charts amount to after-the-fact conjecture for which no 
supporting evidence exists. Under the circumstances, the charts have negligible evidentiary weight. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sqffici, 22 I&N Dec. 158, 165 (Comm 'r 1998) 
(citing Matter qfTreasure Craft qfCalifornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the beneficiary performs the high level responsibilities that are specified in the definitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
The Petitioner contends that the Beneficiary meets all the requirements of both an executive and a 
manager. Based on the current record, we are unable to determine whether the claimed executive 
and managerial duties constitute the majority of the Beneficiary's duties, or whether the Beneficiary 
primarily performed non-qualifying administrative or operational duties. Although the Director 
specifically requested this information, the Petitioner's description of the Beneficiary's job duties 
does not establish what proportion of the Beneficiary's duties was executive or managerial in nature, 
and what proportion was actually non-executive and non-managerial. See Republic of Transkei v. 
INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
(b)(6)
Matter of S-S-, Inc. 
For the above reasons , we find that the Petitioner has not overcome the Director's finding that the 
Petitioner has not met its burden of proof with respect to the Beneficiary's claimed employment 
abroad. The Petitioner did not provide reliable, probative evidence sufficient to establish that the 
foreign entity employed the Beneficiary in a qualifying managerial or executive capacity. For this 
additional reason, USCIS cannot approve this petition. 
C. Executive or Managerial Capacity in the United States 
1. Facts 
The Petitioner's detailed job description for the Beneficiary, submitted in response to the Director's 
2009 RFE, indicated that he devotes 35 percent of his time to "execution of plans," including 
"[t]raining of personnel" and "[d]irect[ing] personnel in merchandising of products, advertising 
campaigns, designing and implementation of various marketing plans and use of point of sales 
material." Under the Beneficiary's "relationship," responsibilities said to take up 20 percent of his 
time, one item indicated that the Beneficiary is to "[ c ]o-ordinate closely with staff and management 
and other personnel and primary distributors. " 
The Petitioner submitted a three-level organizational chart, with the Beneficiary at the top level as 
"CEO/Manager." The second level included his spouse, named Manager of Marketing and Imports, 
who supervised "Office Administration and Receptionist staff'; Sales Manager, 
supervising two independent contractors serving as sales associates; and Procurement and 
Warehouse Manager The job descriptions for the Manager of Marketing and 
Imports and the Procurement and Warehouse Manager both referred to hiring and training of 
unspecified subordinate staff. On the Form I-140, the Petitioner stated that it had three employees . 
Quarterly wage reports, submitted at various times throughout the proceeding, show that the 
Petitioner paid the following wages in 2004: 
Employee Name 
[The Beneficiary] 
[The Beneficiary 's spouse] 
-
01 
$2,000.00 
1,188.79 
5,400.00 
2,484.00 
02 03 
$40,500.00 
$7,678.80 
04 
$9,000.00 
1,000.00 
4,200.00 
In the denial notice, the Director concluded that the organizational structure claimed on the 
organizational chart and in the various job descriptions did not exist when the Petitioner filed the 
petition in June 2004, and therefore, "the record does not support a finding that the beneficiary was 
primarily performing qualifying duties at the time the petition was filed." 
The Director also noted that, on the ETA Form 9089 mentioned previously, the Beneficiary had 
indicated that one of his duties was to "resolve customer complaints regarding sales and services," 
and another was to "represent [the] company at trade association meetings." 
9 
(b)(6)
Matter of S-S-, Inc. 
On appeal, the Petitioner maintains that the Beneficiary has had full control over the company, and 
that any perceived inconsistencies are the result of USCIS's failure to comprehend that conditions 
change frequently when operating a new business . 
Upon review, and for the reasons stated below, we find that the Petitioner has not established that the 
Beneficiary's intended U.S. position is in a qualifying managerial or executive capacity. 
2. Analysis 
On appeal, the Petitioner asserts: "The USCIS is taking a static look at employment and fails to 
recognize that business operations are fluid." The Petitioner asserts that the Beneficiary "has 
ultimate authority" over the petitioning company, whether or not subordinate employees were 
present. The Director, however, did not deny the petition because the Beneficiary lacked authority 
over the company . Rather, the Director denied the petition because the Petitioner had not provided 
accurate information about the company 's structure. 
As noted previously, the Petitioner must establish that the Beneficiary has specified high-level 
responsibilities, and also that the Beneficiary primarily performs these specified responsibilities and 
does not spend a majority of his time on day-to-day functions. The absence of subordinate 
employees leaves the Beneficiary responsible for non-qualifying operational and administrative tasks 
necessary to the day-to-day operations of the business. The Petitioner indicated, for instance, that 
as Procurement and Warehouse Manager, would "(p]repare and process 
requisitions and purchase orders" and "[m]aintain records of goods ordered and received." The 
quarterly payroll documentation indicates that the Petitioner did not employ in mid-
2004, and therefore someone else had to perform those functions at the time. The Beneficiary was 
the Petitioner 's only paid employee in the third quarter of 2004, and therefore the implication is that 
the Beneficiary must have performed the non-qualifying operational and administrative functions 
needed to operate the company. 
Furthermore, the claimed duties of the identified managers include supervisiOn of lower-level 
subordinates , but the record includes no evidence that those lower-level workers exist. This 
discrepancy necessarily reflects on USCIS 's perception of the accuracy of the job descriptions . 
With respect to the job duties listed on the Beneficiary 's ETA Form 9089, the Petitioner stated: 
The job duties and responsibilities provided in the I-140 are not the most exhaustive 
and most comprehensive descriptive list. The additional duties do not detract or in 
any way demote [the Beneficiary's] position. They are merely two additional general 
duties that fall within the broader job description duties listed on the 1-140 .... The 
USCIS is interpreting an inconsistency again where one does not exist. 
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(b)(6)
Matter of S-S-, Inc. 
The Director had previously instructed the Petitioner to provide "very detailed" information about 
the Beneficiary's duties, and therefore the omission of significant duties is relevant to our review of 
the Beneficiary's positon description or the evidence as a whole. 
Furthermore, closer examination of the Beneficiary's job description on ETA Form 9089 shows that 
it closely matches the job description that the Petitioner had provided for as Sales 
Manager. (The Director, in the RFE, found those duties to be more appropriate for a "salesman" 
than a sales manager.) Two of the overlapping functions are the ones that the Director had identified 
in the denial notice. Before that, the Director had quoted the entire job description in the RFE. 
Thus, the Beneficiary claimed this set of duties on ETA Form 9089, while the Petitioner claimed that 
the Beneficiary had delegated most of those same functions to a Sales Manager. That individual, in 
turn, earned less than $9,000 working for the Petitioner in the first half of 2004, indicating that he 
was not otherwise available to perform those functions for the company. This is not a matter of 
"interpreting an inconsistency ... where one does not exist." Rather, it is a significant discrepancy 
that is objectively apparent from review of the available documentation. 
The Petitioner has not overcome the finding that the Beneficiary 's job description has been 
inconsistent, and the Petitioner has not established that subordinate staff have been consistently 
available to relieve the Beneficiary from performing day-to-day operational and administrative 
functions. Therefore, while the Beneficiary may control the company, the Petitioner has not shown 
that the Beneficiary's duties are primarily executive and/or managerial as the statute requires. 
Accordingly, we find that the Petitioner did not provide reliable, probative evidence sufficient to 
establish that it will employ the Beneficiary in a qualifying managerial or executive capacity. For 
this additional reason, USCIS cannot approve this petition. 
IV. CONCLUSION 
We will dismiss the appeal for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ~f 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
This decision is without prejudice to the separate petition that filed on 
the Beneficiary's behalf. The approval of that petition remains in effect at this time. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S- , Inc., ID# 13216 (AAO Sept. 10, 2015) 
II