dismissed EB-1C Case: Holding Company

MATTER OF D-I-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 7, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which describes itself as a holding company, seeks to permanently employ the 
Beneficiary as its director and president under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
§ 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, Texas Service Center, denied the petition. The Director concluded that the evidence of 
record did not establish that: (1) the Beneficiary will be employed in the United States in a 
managerial or executive capacity; (2) the Beneficiary has been employed abroad in a managerial or 
executive capacity; (3) the Petitioner has been doing business for at least one year prior to the 
petition's filing date; and (4) the Petitioner has the ability to pay the Beneficiary's proffered wage. 
The matter is now beforeus on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by disregarding relevant evidence and by drawing unwarranted 
conclusions. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 
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Matter of D-1-, Inc. 
other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter 
the United States in order to continue to render services to the same employer or 
to a subsidiary or affiliate thereof in a capacity that is managerial or executive. 
A United States employer may file Form 1-140 to classifY a beneficiary under section 203(b)(1)(C) of 
the Act as a multinational executive or manager. 
II. DOING BUSINESS 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
has been doing business for at least one year prior to the filing date, as required by the regulation at 
8 C.F.R. § 204.5G)(3)(i)(D). 
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. 
§ 204.50)(2). 
A. Evidence of Record 
We will address this issue first, because our conclusions on this subject will affect our findings 
regarding other stated grounds for denial. 
The Petitioner filed the petition on December 19, 2014. With the petition, the Petitioner submitted a 
letter from director of the petitioning company, who stated: 
Our company is a wholly-owned subsidiary of of 
Pakistan. Our parent company established in 2012. It has now 
elected to acquire and to consolidate the two companies · under this 
[petitioning] company as an "umbrella" or "holding" company. 
We have converted several assumed names formerly held by to 
our name. We have also established Texas 
as our headquarters location. 
The Petitioner submitted copies of assumed name certificates, filed with the State of Texas on July 21, 
2014, indicating that the Petitioner would do business under the names 
and ' The record establishes that is a convenience store located 
at the address that the Petitioner identifies as its headquarters. 
The Petitioner also submitted a copy of its certificate of formation, filed with the State of Texas on July 
8, 2014, five months and 11 days before the petition's filing date. 
The Petitioner also submitted copies of Franchise Tax Account Status printouts, showing that all three 
named companies were in active status as of December 11, 2014. The printouts for the Petitioner and 
for showed 
the same Texas, mailing address for both companies, 
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Matter of D-1-, Inc. 
and both named the Beneficiary as the registered agent for the respective entities. 
showed an address in Texas, and identified 
agent. status printout showed a registration date of August 16, 1989. 
The printout for 
as the registered 
The Petitioner submitted copies of share certificates, indicating that (the 
Petitioner's foreign parent company) owns 10,000 shares of and 140,000 shares of the petitioning 
entity. The Petitioner did not submit share certificates for 
The Director issued a request for evidence (RFE), observing that "the US petitioner was created on July 
8, 2014," and therefore "it does not appear that the [Petitioner] ... has been doing business for at least 1 
year prior to the filing of the 1-140" on December 19, 2014. The Director also asked for additional 
evidence to corroborate the Petitioner's claimed ownership of and 
In response, repeated his earlier assertion that the foreign parent company "established 
in 2012 ... [and] has now elected to acquire and to consolidate the two 
companies under [the petitioning] company." He added: "There was no exchange of money involved 
in the transactions since our parent company already owned [a ]nd acquired 
[i]n exchange for the support and expansion of opportunities that it would receive from 
including it under the umbrella of [the petitioning company]." 
The Petitioner's then-attorney ofrecord, stated: 
As of [the petition's filing] date, the petitioner had been fully incorporated, organized, 
and had absorbed all of the assets and liabilities of and 
including their "goodwill" and prior business dealings. Thus, it had· become the 
"successor in interest" of those two entities. Both of those entities had been "doing 
business" for many years. . 
. . Thus, as successor in interest, the petitioner . . . has been 
"doing business" for over a year through its components at the time of the filing of the 
petition. 
The Director denied the petition, based, in part, on the finding that the Petitioner had not been doing 
business for at least one year as of the petition's filing date. The Director acknowledged the claim that 
the Petitioner is the successor in interest of both and but the Director concluded that the 
Petitioner had not shown that it had absorbed the companies and assumed their operations. Rather, the 
Director determined, "it appears that these companies are still viable entities" in their own right, in 
which case there can be no successor in interest. 
On appeal, the Petitioner states that it 
docun1ented the ownership structure through stock certificates. 
1 The State Bar of Texas lists as deceased. (https://www.texasbar.com/ AM/Template.cfin?Section=Find _ 
A~ Lawyer&template=/Customsource/MemberDirectory/MemberDirectoryDetail.cfin& printout added to 
record Apri127, 2016.) 
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Matter of D-1-, Inc. 
B. Analysis 
The Petitioner does not contest the evidence showing that the petitioning 
entity came into existence less 
than six months before the filing date. Instead, the Petitioner maintains that it meets the "doing 
business" requirement through its ownership interest in and 
Responding to the Director's finding that and "are still viable," the Petitioner states: "Yes, 
they are still viable. They did not disappear into oblivion simply because their ownership changed." 
This response misses the point. Because and still exist as distinct corporations that 
continue to do business in their own right, we cannot view the Petitioner as their successor in interest. 
Successorship in interest occurs when one company ceases to exist, and another entity assumes its 
assets and obligations, effectively operating in place of the earlier entity. If the original entities still 
exist and do business, then no other entity can claim to be their successor in interest. 
The Petitioner has submitted documentation relating to the past business activity of and 
The petitioning U.S. employer itself, rather than any affiliate or subsidiary, must have been doing 
business for at least one year. 8 C.F.R. § 204.5G)(3)(i)(D). The record shows that has existed 
since 2012, and since 1989, but neither of those entities is the petitioning employer. Therefore, 
evidence relating to those companies does not and cannot show that the petitioning entity has been 
doing business for a year or more prior to the petition's filing date. 
Furthermore, the record does not support the Petitioner's claim to have acquired the other businesses. 
Counsel, on appeal, states: "The Petitioner has shown that it became the owner of 
and [b ]y virtue of stock certificates from both companies transferring all the 
outstanding shares of each to 2 The record does not contain those documents, and no official of 
the petitioning entity has directly claimed to have submitted them. The unsupported assertions of 
counsel do not constitute evidence. See, e.g., 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 of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). 
The petitioner previously submitted sopies of share certificates showing that 
in Pakistan, owns the Petitioner and This common ownership makes the Petitioner an affiliate of 
but it does not grant the Petitioner ownership of and it does not, by itself, make the 
Petitioner a holding company that owns or controls Counsel states that "this was an 'in-house' 
transfer so no money was exchanged," but the record contains no documentary evidence to corroborate 
this statement. letter, in response to the RFE, includes this claim but is not, itself, evidence 
to support the claim. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
2 It is not clear whether counsel means the Petitioner or the parent company, both named ' 
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Matter of D-1-, Inc. 
While appears at least to be affiliated with the Petitioner, there is no evidence of any ownership 
connection between and either the Petitioner or its parent entity in Pakistan. The Petitioner had 
initially submitted a 2013 Summary of Stock Ownership (a supplement to its IRS Form 1120S, U.S. 
Income Tax Return for an S Corporation), which identified as sole owner. 
The Petitioner's response to the RFE included a copy of 2014 IRS Form 1120S tax return. 
Schedule K-1 of that return identified as sole shareholder. The return was 
prepared in early 2015, after the December 2014 filing date. Therefore, this document, on its face, 
contradicts the Petitioner's claim that it, or its parent company, owned at the time of filing. 
Because the record does not support the claim that the Petitioner owns either or we need 
not and will not consider the evidence that the Petitioner has submitted regarding the business activities 
of those two entities. The Petitioner asserts that the Beneficiary is also employed by but his 
duties with that company are not with the petitioning U.S. employer and cannot establish eligibility. 
With respect to the Petitioner itself, the company came into existence less than a year before the 
petition's filing date, and therefore it cannot meet the statutory requirement that it must have done, 
business for at least a year prior to filing. Furthermore, the Petitioner has not established that it has 
engaged in any activity that would meet the regulatory definition of doing business. The Petitioner has 
not identified any goods or services that it provides; all the business documentation in the record relates 
to and Some invoices in the record refer to and both 
named on assumed name certificates, but, as the Petitioner has acknowledged, those names were 
already used by Some materials, such as bank statements, name both and 
There is no evidence that the invoices relate to business activity conducted by the Petitioner, 
independently of 
The record does not establish that the Petitioner has done business at all, and it has not existed for the 
required year. Absent evidence of qualifying ties to and the Petitioner has documented 
only that it exists. By regulation, the mere presence of an agent or office does not qualify as doing 
business. See 8 C.F.R. § 204.50)(2). 
For the above stated reasons, 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. 
III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish: (1) 
the Beneficiary will be employed in a managerial or executive capacity; and (2) the Beneficiary has 
been employed abroad in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as an assignment within an organization in which the employee primarily: 
5 
Matter of D-1-, Inc. 
(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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as 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. 
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 must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section 101(a)(44)(C) ofthe Act. 
A. Employment in a Managerial or Executive Capacity in the United States 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
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Matter of D-1-, Inc. 
1. Evidence of Record 
In his introductory letter, stated: 
We have a business enterprise with 16 employees .... As Director, President, and Chief 
Executive Officer of the company, [the Beneficiary] makes the major decisions, 
oversees the overall operations of the company and manages the Managers and officers 
of the two companies .... He reports only to the overseas foreign parent company . 
. . . [H]e will spend about 75% of his time interfacing with the top Managers and officers 
he manages. This involves sessions with individuals who report to him and group 
"staff' meetings. He also must evaluate the performance of the persons he supervises. 
As you can see from the Organizational Chart, he will be managing the Vice President, 
and three Managers of which has been folded into this company. 
He will also be overseeing the President of which has been acquired by this 
company. 
The Petitioner submitted an organizational chart showing the following structure: 
Parent Company, 
I 
Board of Directors 
[The Beneficiary], Chairman 
Director 
I 
Bookkeeper--'----Director/President 
[The Beneficiary] 
I 
Vendors--------Vice President:------- : 
With regard to the Petitioner's,two claimed subsidiaries, the chart indicated that and 
each employed a manager, an assistant manager, a head clerk/cashier, and front line 
employees such as cashiers and stockers. For the chart identified as the manager 
but showed no other employees, instead indicating that the company is in a "Development Stage." The 
chart also indicated that was in a "Development Stage," with a president 
manager, and assistant manager. 
Matter of D-1-, Inc. 
In the RFE, the Director stated that the Petitioner had "only provided [a] general description of the 
beneficiary's duties." The Director asked the Petitioner to submit a more detailed statement, listing 
the Beneficiary's specific job duties and the percentage of time devoted to each. The Director also 
requested job descriptions for the Beneficiary's subordinates. 
In response, the Petitioner submitted an unsigned statement on company letterhead. Relevant 
portions of the statement appear below (note: errors in the original text have not been changed): 
[The Beneficiary] in his capacity as Director of our company will be supervising Four 
Managers through [the] General Manager. He would provide strategic and policy 
guidance and brief artd seek feed back and views on new policies and marketing 
strategies. Resolve issues and facilitate work of the departments .... 
. . . In his capacity as Director, [the Beneficiary] continues to be involved in all major 
decisions affecting the operations of the company. He has been serving as Director 
[for the] last several years .... He has established and maintains financial relations 
and develops and implements overall operating structure, budget, personnel policies, 
and marketing plans. The beneficiary is at the apex of management structure of ... 
our entity and has absolute authority to hire, promote, transfer and de hire the top 
management team. The top management team, in tum, perform these management 
functions for the lower echelon of the company in their respective areas of 
responsibility. . . . He through General Manager and Departmental heads conducted 
outreach to the other multinational clients and companies and sought new business 
and developed new clients. He co-ordinated with local authorities to formulate 
company policies, manage departmental operations in our office. He develops 
protocols and operational procedures for various projects. 
He will oversee the entire operations ofthe US Company. Hire, train and supervises 
Managers for US Operations. He develops survey of markets and suggests the parent 
company about the profitability of operations. He explores expansion and 
diversification of operations and investments and develops business strategy and 
confers with clients and outside professionals. He ensures the timely completion of 
targets and review the progress of ongoing operations. His duties with our entity in 
US includes: Plan, direct, and coordinate the operations of our Business development 
and Marketing of our services through Managers and four departmental heads. Direct 
and coordinate an organization'S financial and budget activities to fund operations, 
maximize investments, and increase efficiency; Confer with board members, 
organization officials, and staff members to discuss issues, coordinate activities, and 
resolve problems. Analyze operations to evaluate performance of a company and its 
staff in meeting objectives, and to determine areas of potential cost reduction, 
program improvement, or policy change; Direct, plan, and implement policies, 
objectives, and activities of organizations or businesses to ensure continuing 
operations, to maximize returns on investments, or to increase productivity; Approve 
budgets including those for funding and implementation of programs. He through 
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Matter of D-1-, Inc. 
Managers is responsible for hiring, promoting, transferring and firing Departmental 
heads. 
Since we have consolidated two other entities into ours, his duties will include the 
overall supervision and oversight of those two components of our operation in the 
same manner as above. 
In a separate statement, the Petitioner stated that the Beneficiary "typically spends two days a week 
in to oversee the operation of And three days a week in at the corporate 
headquarters, principally overseeing the operation of ' and its constituent 
businesses. The Petitioner stated that the Beneficiary "typically spends about 75% of his time 
interfacing with his various Managers. He spends 5 hours per week on travel time and about 5 hours 
per week on miscellaneous matters." 
To show the "Duties of Executives and Managers" at the petitioning company, the Petitioner 
submitted a chart indicating that the Beneficiary has "meetings with managers" regarding such 
subjects as "sales," "business promotions," and "check[ing] bank records." as director 
and vice president, is to "assist the president in the performance of all his duties." The section of the 
chart designated for named the president (the Beneficiary) and three "store managers," 
followed by a list of ten topics such as "payments of accounts payable," "marketing," and 
"reconciliation of bank deposits and cas[h] drawer." The same list of ten topics appears in the 
section of the chart, under name. 
The Director denied the petition, based in part on a finding that the Petitioner had not established 
that the Beneficiary would serve in a qualifYing managerial executive capacity. 
On appeal, the Petitioner states that it has submitted 
the required information and evidence, and that 
the Director did not adequately explain the grounds for denial. 
2. Analysis 
Upon review, and for the reasons stated below, we find that the Petitioner did not establish that it 
will employ the Beneficiary in a qualifying managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, we review the 
totality of the record, starting first with the description of the beneficiary's proposed job duties with 
the petitioning entity. See 8 C.F.R. § 204.50)(5). Published case law has determined that the duties 
themselves will reveal the true nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). We then 
consider the beneficiary's job description in the context of the petitioner's organizational structure, 
the duties of the beneficiary's subordinates, and any other relevant factors that may contribute to a 
comprehensive understanding of the beneficiary's actual duties and role within the petitioning entity. 
9 
(b)(6)
Matter of D-1-, Inc. 
The Petitioner's discussion of the Beneficiary's claimed duties as a manager or executive 
encompasses not just the petitioning entity, but a larger "enterprise" that also includes and 
For reasons already explained, the Petitioner has not established" its ownership or control of 
' either of those companies. Therefore, we will not take those companies or their employees into 
account when considering the Beneficiary's claimed managerial or executive duties. We note that 
the Petitioner and issued separate IRS Forms W-2, Wage and Tax Statements, to the 
Beneficiary for 2014, which indicates, on its face, simultaneous but separate employment. 
In the denial notice, the Director noted that, although the RFE had included a request for specific 
information about the Beneficiary's work schedule and job descriptions for his subordinates, the 
Petitioner's response did not include the requested information. The Director cited 
8 C.F .R. 
§ 103.2(b)(14), which establishes that an incomplete response to an RFE can be grounds for denial. 
The Petitioner responds, on • appeal, that the Petitioner submitted all requested evidence and the 
Beneficiary's job description. That job description, however, lacked detail. statement 
that the Beneficiary "makes the major executive decisions, oversees the overall operations of the 
company and oversees the Managers and Officers of the two subsidiary companies" addressed his 
level of authority, but does not describe the specific tasks that the Beneficiary performs in order to 
exercise that authority. Also, in that statement, language moves back and forth between 
the past, present, and future tenses, making it difficult to tell when he is describing the Beneficiary's 
duties in the U.S. or his earlier work overseas. At one point, stated that the Beneficiary 
"has been serving as Director [for the] last several years," but when he made that statement, the 
petitioning entity had existed for only about 15 months. 
The Director had asked for a breakdown of the percentage of time that the Beneficiary devotes to 
"all specific daily duties (rather than categories of duties)." The Petitioner responded with the broad 
statement that the Beneficiary "will spend about 75% of his time interfacing with the top Managers 
and the officers he manages," while dividing the remaining 25% of his time between travel and 
"miscellaneous matters." The Petitioner's unsigned statement in response to the RFE also included 
wording copied directly from a 2013 letter from the foreign entity, describing the Beneficiary's 
earlier work in Pakistan. 
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. Fe din Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. Here, the Petitioner 
has not provided the level of specificity necessary to show that the Beneficiary will primarily 
perform qualifying managerial or executive tasks. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) 
and (ii). Personnel managers are required to primarily supervise and ~ontrol the work of other 
supervisory, professional, or managerial employees. 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. 8 C.F .R. § 204.5(j)(2). 
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(b)(6)
Matter of D-1-, Inc. 
The Director, in the RFE, had requested a list of the Beneficiary's direct subordinates and "a brief 
description of their job titles, duties and education level, and whether they work full or part time." 
The Petitioner's response only partially addressed this request. The "Duties of Executives and 
Managers" chart identified the individuals but did not list their duties. Instead, the Petitioner 
submitted lists of subjects that the officials discussed during meetings, and stated that the task of the 
vice president is to "assist the president in the performance of all his duties." 
The Petitioner did not, as requested, specify which employees worked full-time. The Director, in the 
denial notice, concluded that "many of them are part-time employees." On appeal, the Petitioner 
states: "There was no evidence cited for this conclusion." The Director, however, did explain the 
basis for that finding. Specifically, the Petitioner had submitted copies of several 2014 IRS Forms 
W-2 issued to employees of the Petitioner, and Two IRS Forms W-2 issued by the 
Petitioner for that year show that the Beneficiary earned $12,000 and received $7,200. Of 
the 22 forms issued by the Beneficiary's form (showing $30,000) is the only one showing a 
sum greater than $10,000 for the year. The four-figure sums shown on the IRS Forms W-2 are too 
low to reflect a year's full-time employment, even at minimum wage. 
As explained previously, the Petitioner has not shown that it either owns or controls The 
Beneficiary may work at both companies, as shown by the issuance of two 2014 IRS Forms W-2, 
but is not the petitioning U.S. employer. The record contains no information about what 
business activities take place at the petitioning company (as opposed to The passive activity 
of owning even if the Petitioner had documented it, is not a business activity that requires 
active managerial or executive oversight. 
The four IRS Forms W-2 issued by tend to show greater amounts than the forms issued by 
the other companies, but the Petitioner has not established its affiliation with The Petitioner 
claims to have acquired both and in non-financial transactions, thus placing those two 
companies under the Petitioner's (and thus the Beneficiary's) authority, .but, as explained above, the 
record does not support these claims. The record contains no direct documentation of 
ownership, but secondary materials dating from both before and after the petition's filing date 
identify as that company's sole shareholder. 
Because the Petitioner submitted evidence that refutes, rather than supports, its claim to own we 
can give no credence to the Petitioner's claim that the Beneficiary has executive or managerial authority 
over Furthermore, this serious, discrepancy casts doubt on the credibility and reliability of the 
Petitioner's other claims. Doubt cast on any aspect oftlie petitioner's proof may lead to a reevaluation 
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Section 204(b) of the Act, 8 U.S.C. § 1154(b), 
permits approval of the petition only when the Petitioner has established to our satisfaction that its 
material claims are true. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
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(b)(6)
Matter of D-1-, Inc. 
within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that 
clearly describes the duties to be performed in managing the essential function, i.e. identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion 
of the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 
§ 204.50)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the 
function. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "prima'rily" employed in a managerial or executive capacity. 
See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Int '1, 19 I&N 
Dec. 593, 604 (Comm'r 1988). 
The Petitioner has not identified any functions that occur at the petitioning company, except relating 
to that company's claimed oversight and authority over and Because the Petitioner 
has not established that it actually has this claimed authority, it is not evident that any business 
activity takes place at the petitioning company for the Beneficiary to manage or oversee. The 
Petitioner has not shown that there is any essential function for the Beneficiary to manage. 
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, 8 U.S.C. §1101(a)(44)(B). 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 the beneficiary to direct 
and the 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. The 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." Id. 
As above, the Petitioner states that the Beneficiary's executive authority derives from the company's 
claimed authority over and For reasons already explained, the Petitioner has not 
established that these companies are, in fact, part of the petitioning organization. Without the 
necessary evidence, the Petitioner's assertion that the Beneficiary is an executive of the organization 
is without foundation. Without evidence that the Petitioner itself conducts business of some kind, 
there can be no basis to find that the Beneficiary exercises executive authority over that business. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary will be employed in a managerial or executive capacity. 
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Matter of D-1-, Inc. 
B. Foreign Employment in a Managerial or Executive Capacity 
If the beneficiary is already in the United States working for the foreign employer or its subsidiary or 
affiliate, then the regulation at 8 C.F.R. § 204.50)(3)(i)(B) requires the petitioner to submit a 
statement from ari authorized official of the petitioning United States employer which demonstrates 
that, in the three years preceding 'entry as a nonimmigrant, the beneficiary was employed by the 
entity abroad for at least one year in a managerial or executive capacity. 
1. Evidence of Record 
In his introductory letter, described the Beneficiary's claimed employment abroad: 
Prior to his transfer to the U.S. subsi~iary corporation, [the Beneficiary] supervised four 
Managers with our parent company. He provided strategic 
and policy guidance and reviewed feed-back and views on new policies and marketing 
strategies. He resolved issues and facilitated the work ofthe various departments of the 
company. His position was that of Director. ... He initially joined the company as 
shareholder Director and subsequently assumed the responsibilities of Director of the 
company for Pakistan operations. He was in this position from 2001. 
He oversaw the operations of the entire company in Pakistan. The overwhelming 
majority of his time was spent directing the activities of the Managers under him, in 
particular, the General Manager. 
The Petitioner submitted a copy of a letter from president and 
founder of (and the Beneficiary's father). had written the 
letter, dated November 5, 2013, in support of an earlier filing seeking to extend the Beneficiary's L-IA 
nonimmigrant status. stated: 
[The Beneficiary] has been Director of our company and specifically heads 
and in addition to being on the Board of 
He has established and maintained financial relations and developed and implemented 
overall operating structure, budget, personnel policies, and marketing plans. [The 
Beneficiary] is at the apex of the management structure of our entity and has absolute 
authority to hire, promote, transfer and de hire the top management team. The top 
management team in turn performs these management functions for the lower echelon of 
the company in their respective areas of responsibility. 
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(b)(6)
Matter of D-1-, Inc. 
[The Beneficiary's] duties with our entity in Pakistan included: 
1. To plan, direct, and coordinate the operations of our Business Development and 
Marketing services through General Managers and departmental heads. 
2. Through General Managers, he is responsible for hiring, promoting, transferring and 
firing departmental heads. 
3. He oversees timely completion of projects to the satisfaction of clients. 
4. Through General Managers and Departmental Heads, he conducts outreach to the 
other multinational clients and companies. He sought out new business and 
developed new clients. 
5. He coordinated with local authorities, investors and immigration authorities for 
bringing expatriate staff from overseas. 
6. Formulates company policies and manages departmental operations in our office. 
[The Beneficiary] develops protocols and operational policies fpr various projects 
within our business divisions. · 
7. He plans the efficient and economic utilization of company resources and materials 
at the department level and implementation of policies at the operational level. 
Reduces wastage and ensure[ s] time management. 
8. Review Finance and Budget of the company and ensures that the departments stay[] 
within budget and generate[] enough revenue for the profitability of the company. 
9. Confers with third party outside consultants for fashion designs and new trends in 
the clothing and fabrics. 
10. Coordinates participation and displays services at expos in Pakistan and Overseas 
for marketing and generating new orders. 
11. Analyzes sales statistics gathered by staff to determine sales potential and inventory 
requirements to monitor the preferences of customers. 
12. Confers with department heads to ensure coordination of activities. Reports to 
Board of Directors about the progress of company operations. 
The time distribution for projects has been as follows: 
1. Business Development and communication with clients both existing and 40% 
potential. 
2. Staff development, Supervision and co-ordination with Management. 10% 
3. Analytical work and Management. 20% 
4. Human Resource Management and Development. 15% 
5. · Operational details and supervision. 10% 
6. Staff meetings and morale development. 5% 
The Petitioner submitted a copy of the Beneficiary's resume. On that document, the Beneficiary did not 
claim to have served as the foreign company's director, but rather "as Marketing Director in 
14 
(b)(6)
Matter of D-1-, Inc. 
in addition to Managing & ''from January 
1999 to June 2012. The resume listed the following responsibilities: 
• Instilling a marketing led ethos throughout the business 
• Researching and reporting on external opportunities 
• Understanding current and potential customers 
• Managing the customer journey (customer relationship management) 
• Developing the marketing strategy and plan 
• Management of the marketing mix 
• Managing agencies 
• Measuring success 
• Managing budgets 
• Ensuring timely delivery 
• Writing copy 
• Approving images 
• Developing guidelines 
• Making customer focused decisions 
In the RFE, the Director requested "a definitive statement from the foreign company which describes 
the beneficiary's job duties," and an organizational chart for the foreign entity. 
The Petitioner's response included an organizational chart, too complex to reproduce here in chart form. 
The chart showed a chairman at the top of the organization, with four direct subordinates: 
• GM Import and Administration (3 identified subordinates) 
• Head of Production and Planning (13 identified subordinates) 
• Head of Quality Control & Assurance (6 identified subordinates) 
• GM Marketing & Sales ( 6 identified subordinates) 
The Petitioner also submitted a letter from 
appeared in his earlier letter. 
repeating the brief job description that had 
The Director, in denying the petition, stated that the Petitioner had not submitted "a statement from the 
foreign company and all other required information." The Director found that the Petitioner had not 
submitted sufficient evidence to establish "the qualifying period of managerial employment abroad." 
On appeal, the Petitioner states that the Petitioner had submitted a "[l]engthy description" of the 
Beneficiary's foreign job duties. 
2. Analysis 
The Petitioner, on appeal, offers no detailed rebuttal to the Director's findings regarding the 
Beneficiary's foreign employment. The Petitioner states only that the record contains a lengthy job 
15 
(b)(6)
Matter of D-1-, Inc. 
description of the Beneficiary's foreign position. This assertion is correct, but the Director, in the RFE, 
had requested more information from the foreign company. The Petitioner's response tothe RFE did 
not include that information. The Petitioner effectively acknowledges as much on appeal, because the 
Petitioner does not include any new statement from the foreign entity in its list of the materials 
submitted in response to the RFE. 
The job descriptions that the Petitioner has submitted are not consistent. stated that the 
Beneficiary had served as the foreign company's "Director ... since 2001." provided the 
same title, but no date. The Beneficiary's own resume stated that he was "Marketing Director" from 
1999 to 2012. 
had stated that the Beneficiary "[ c ]onfers with third party outside consultants for fashion 
designs and new trends in the clothing and fabrics." The record, however, contains no other indication 
that is engaged in the manufacture, distribution, or sale of "clothing and 
fabrics." The company's letterhead refers to the company as a "Manufacturer and Exporter of 
Pharmaceuticals & Veterinary Medicines." The Petitioner submitted two copies of a "Company 
Profile" booklet which identified the foreign entity as "a pharmaceuticals company focused on drug 
delivery technologies and pharmaceuticals products." The booklet identified four subsidiaries, all 
pharmaceutical companies. The reference to "clothing and fabrics," therefore, is of significant concern, 
as it calls into question the origin and authorship of the job description. 
The foreign company's organizational chart, submitted in response to the RFE, did not mention clothing 
or fabrics. Also, it did not show any of the foreign company's subsidiaries, such as and 
it did not show any position with the title "director" (the title that, according to both and 
the Beneficiary held at the foreign company). The Petitioner has not submitted any first-
hand evidence to establish that does, in fact, own and 
This is a significant omission, given the serious questions regarding the Petitioner's 
claimed ownership of and 
The record contains no detailed information about the Beneficiary's claimed work "[m]anaging 
& The Beneficiary's resume refers to "writing copy," which is not a 
managerial or executive duty, and many other elements of the Beneficiary's own description of his 
foreign work is very general, .such as "[ e ]nsuring timely delivery" and "[ m ]anaging customer focused 
decisions," which describe goals rather than the means of reaching those goals. 
For the above reasons, the Beneficiary's foreign job descriptions, while (at times) detailed, lack 
consistency and therefore credibility. Based on these deficiencies and inconsistencies, the Petitioner has 
not established that the Beneficiary was employed abroad in a managerial or executive capacity. 
16 
(b)(6)
Matter of D-1-, Inc. 
IV. ABILITY TO PAY 
The Director denied the petition based on a finding that the Petitioner did not establish its ability to 
pay the Beneficiary's proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) reads as follows: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. In a case where 
the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. In appropriate cases, 
additional evidence, such as profit/loss statements, bank account records, or personnel 
records, may be submitt~d by the petitioner or requested by the Service. 
A. Evidence of Record 
On Form I-140, the Petitioner indicated that it would pay the Beneficiary $60,000. Instructed to list 
its gross and net annual income, the Petitioner provided\the following figures: 
2013 Gross: 
2013 Net: 
2014 Gross (estimated): 
2014 Net (estimated): 
$885,023 
14,265 
1,000,000 
25,000 
Because the Petitioner did not exist in 2013, and filed the petition in 2014, it had no income tax return 
of its own to submit with the petition. The Petitioner submitted copies of the 2013 income tax returns 
for its claimed subsidiaries. As noted above, filed IRS Form 1120S. filed IRS Form 
1120, U.S. Corporation Income Tax Return. The returns showed the following figures: 
Gross receipts or sales 
Total income 
Net income 
$520,674 
150,575 
2520 
364,349 
152,339 
11,745 
Total 
885,023 
302,914 
14,265 
From the above figures, it is clear that the Petitioner added the amounts from the two tax returns, and 
listed the sums on the petition form. 
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(b)(6)
Matter of D-1-, Inc. 
In the RFE, the Director stated that and are separate entities from the Petitioner, and 
therefore their income tax returns cannot establish the Petitioner's ability to pay the Beneficiary's 
proffered wage. The Director requested copies of federal income tax returns, annual reports, or audited 
financial statements for the petitioning entity. 
In response, the Petitioner submitted copies of the Beneficiary's monthly pay statements from August 
and September of 2015. Each statement showed a $5000 payment. The Petitioner also submitted 
copies ofiRS Forms W-2 for 2014, showing that the Petitioner paid the Beneficiary $12,000, and 
paid him $30,000. 
The Director, in the denial notice, stated that the submitted evidence did not establish the Petitioner's 
ability to pay the Beneficiary's proffered wage from the filing date onward. The Director 
acknowledged the Petitioner's submission of the tax returns for and but refused to 
consider them because the Petitioner had not established its claim to be their successor in interest. 
On appeal, the Petitioner states that the August and September 2015 pay statements show that the 
Beneficiary is now receiving the proffered wage. The Petitioner submits a copy of IRS Form 
1120 return for 2014, which was not included in the Petitioner's response to the RFE. 
B. Analysis 
We note that, in the denial notice, the Director misstated the amount shown on the Beneficiary's 2014 
IRS Form W-2 from the Petitioner. The Director stated that the amount was $7200, but this was 
actually the amount shown on the form issued to This error did not affect the outcome of 
the proceeding. The figure on the Beneficiary's own form, while higher than $7200, was still 
significantly lower than it would have been had the Petitioner paid him the full proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states that evidence of ability to pay "shall be either in the form 
of copies of annual reports, federal tax returns, or audited financial statements." The Petitioner may 
supplement these documents with other relevant evidence, but it must submit at least one of the three 
types of evidence described above. Here, the Petitioner has not submitted any of the required document 
types for the petitioning entity itself. The non-existence or other unavailability of required evidence 
creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). 
As previously discussed, the Petitioner is not the successor in interest of either or and it 
has not credibly demonstrated that the assets of either company were, or are, available to the Petitioner 
to pay the Beneficiary's proffered wage. Therefore, like the Director, we will not consider those 
companies' tax returns when determining the Petitioner's ability to pay the proffered wage. 
The Director, in the denial notice, observed that the September 2015 pay statement showed a year-to­
date figure of $24,000, which means that the Petitioner cannot have been paying the Beneficiary the full 
proffered wage throughout the earlier months of 2015. The Petitioner, on appeal, states that the 
Beneficiary's recent pay statements showed payments of $5000 per month, equivalent to the annual 
18 
Matter of D-1-, Inc. 
proffered wage of $60,000. The Petitioner states that it need not have actually been paying the 
Beneficiary the full wage; "only an ability to pay it when his status is adjusted." 
The Petitioner is correct that it need not have actually paid the Beneficiary's full proffered wage in the 
past, but nevertheless, the Petitioner must document its ability to pay beginning at the filing date, and 
continuing until the Beneficiary attains lawful permanent resident status. See 8 C.F.R. § 204.5(g)(2). 
The August and September 2015 pay statements do not show that the Petitioner was able to pay the 
proffered wage as of the petition's filing date ofDecember 19,2014. 
Furthermore, there is an unexplained discrepancy in the pay statements. As the Director noted, the 
September 2015 pay statement showed a year-to-date figure of $24,000. The August statement, 
however, showed a year-to-date figure of $21,000. The two sums differ by only $3,000, even though 
the Petitioner supposedly paid the Beneficiary $5000 in September 2015. This discrepancy raises still 
further questions about the reliability and credibility of the Petitioner's documentation. The Petitioner 
has not resolved these inconsistencies with independent, objective evidence pointing to where the 
truth lies. See Matter ofHo, 19 I&N Dec. at 591-92. 
V. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-1-, Inc., ID# 17038 (AAO July 7, 2016) 
19