dismissed EB-1C Case: Investment

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 29,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, identified as an investment company that is part owner of a restaurant, seeks to 
permanently employ the Beneficiary as its president and chief executive officer (CEO) under the 
first preference immigrant classification for multinational executives or managers. See Immigration 
and Nationality Act (the Act) section 203(b)(1)(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 record did not 
establish, as required, that it will employ the Beneficiary in the United States in a managerial or 
executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by imposing 
unwarranted requirements and an improper standard of proof. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa available to a beneficiary who, in the three 
years preceding the filing of the petition, has been employed outside the United States for at least one 
year in a managerial or executive capacity, and seeks to enter the United States in order to continue to 
render managerial or executive services to the same employer or to its subsidiary or affiliate. 
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. This 
classification does not require a labor certification. 
The petition must include a statement from an authorized official of the petitioning United States 
employer which demonstrates that the beneficiary has been employed abroad in a managerial or 
executive capacity for at least one year in the three years preceding the filing of the petition, that the 
beneficiary is coming to work in the United States for the same employer or a subsidiary or affiliate of 
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Matter of H- Inc. 
the foreign employer, and that the prospective U.S. employer has been doing business tor at least one 
year. See 8 C.F.R. § 204.50)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner initially referred to the Beneficiary's position as 
"an executive capacity " with "executive duties." On appeal, the Petitioner states several times that it 
"will employ the Beneficiary in a purely executive capacity." Therefore , we restrict our analysis to 
whether the Petitioner will employ the Beneficiary in an executive capacity . 
The Act 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. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 110l(a)(44)(B). 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. See section 
10l(a)(44)(C) ofthe Act. 
A. Identity ofthe Employer 
As a threshold issue, we note that the record is ambiguous about which entity seeks to employ the 
Beneficiary. The entity that filed the petition described itself as a company that "negotiates 
international transactions for the purchase of goods from China" and also owns a half-interest in 
which "operates as an upscale sushi bar" which the Petitioner hopes to grow into a 
franchise. Thus, the two entities are related but distinct and separate. 
Tax and payroll documents show that the Petitioner paid the Beneficiary a $55,000 salary in 2014. 
The Petitioner did not pay any other salaries that year. paid several employees , but not 
the Beneficiary. 
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Matter of H- Inc. 
The record, however, contains some evidence that the Petitioner's subsidiary, seeks to 
employ the Beneficiary. Several of the Beneficiary's described duties concern the operation and 
projected growth of all claimed employees under the Beneficiary's authority work at 
; and board of directors appointed the Beneficiary to be its president and 
CEO for an annual salary of $55,000 (the salary specified on the Form 1-140). This appointment 
occurred at a meeting on March 30, 2015, two weeks before the petition's filing date. 
With respect to the appointment and salary offer, board of directors is not identical to 
the Petitioner's board of directors, and, as the subsidiary, has no evident authority to 
enter into financial obligations on its parent company's behalf. offer to employ the 
Beneficiary, therefore, is either an inaccurate restatement of the Petitioner's job offer, or else a 
separate, second job offer. 
If (1) is to pay the Beneficiary's salary, (2) the Beneficiary is to primarily oversee the 
activities of and (3) all of the Beneficiary's subordinates work for then 
not the Petitioner, is the intending employer. A prospective employer must establish its 
ability to pay the beneficiary's proffered salary. 8 C.F.R. § 204.5(g)(2). 2014 IRS 
Form 1120S, U.S. Income Tax Return for an S Corporation, shows that the company did not have 
sufficient income to pay the Beneficiary's salary; the company operated at a $44,827 net loss in 
2014. did not report any current assets on its 2014 tax return; instead, it reported a 
negative cash balance of -$7,102. Therefore, the record does not establish ability to 
pay the Beneficiary's $55,000 salary. 
The 
record is ambiguous as to whether the Beneficiary intends to serve as the CEO of the petitioning 
entity, or the CEO of Because did not file the Form 1-140 
petition, we will focus on the job offer from the petitioning entity. If intends to employ 
the Beneficiary directly, as the March 2015 meeting minutes indicate, then it must file its own 
petition with supporting evidence showing that (rather than a related entity) meets all 
applicable requirements. 
B. Duties 
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. 
When examining the executive or managerial capacity of a given beneficiary, we will look first to 
the petitioner's description of the job duties. The petitioner's description of the job duties must 
clearly describe the duties to be performed by the beneficiary and indicate whether such duties are in 
a managerial or executive capacity. See 8 C.F.R. § 204.50)(5). 
In the instant matter, the Petitioner stated that the Beneficiary will "continue to perform the 
following executive duties" and provided the percentage of time spent on each duty: 
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Matter of H- Inc. 
• Create and establish weekly, monthly and yearly goals through a detailed business 
plan. Additionally, 
direct employees and other subordinates to execute the 
business plan and oversee progress. (20%) 
• Develop policies and procedures for in regards to the franchising 
opportunities. In addition, reach out and maintain relationships with potential 
franchisees. (20%) 
• Coordinate with franchise attorneys to implement the franchise 
licenses under California law. (1 0%) 
• Create, communicate, and implement the organization's vision, mission, and 
overall direction to the management team including short-term goals and long­
term mission. ( 1 0%) 
• Create and oversee execution of the corporate budget within organizational 
guidelines. (5%) 
• Review and approve operational procedures, policies, and standards of the 
organization. ( 5%) 
• Review all accounting documentation and maintain communication with the 
organization's Public Accountant to ensure the corporation's financial progress. 
(5%) 
• Direct the organization's management department. The CEO will meet with the 
managers of the organization to discuss corporate improvements and staff 
progress at least weekly. (5%) 
• Negotiate and enter into contracts and financial obligations. The CEO has the 
power to sign contracts, loans, applications and credits on behalf of the 
organization. ( 5%) 
• Ensure implementation of customer development and public relations policies for 
the organization. The CEO reviews client feedback to ensure customer 
satisfaction. ( 5%) 
• Create and oversee implementation of new investment projects for the 
organization. ( 5%) 
• Report to the Shareholders of the organization, receiving only general 
supervision. (5%) 
The duties listed above do not provide enough information about the Beneficiary's specific duties 
and activities. The first and fourth items appear to say the same thing, concerning the Beneficiary's 
authority to set short- and long-term goals for the company. The Beneficiary is the Petitioner's only 
employee, yet the job description refers to "staff' and a "management department." The Petitioner 
has not documented any public-facing activity and has no identified clientele, yet the Petitioner 
claims the Beneficiary devotes time to "public relations" and "client feedback.'' 
The Petitioner did not claim that the listed duties are only prospective. Rather, the Petitioner (in a 
letter that the Beneficiary signed on behalf of the company) specified that the Beneficiary "will 
continue to perform the following executive duties." In this way, the Petitioner has claimed that the 
Beneficiary has already been performing the listed functions, but the record does not show that he 
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Matter of H- Inc. 
has been, for example, coordinating with franchise attorneys or forming relationships with potential 
franchisees. 
In a request for evidence (RFE), the Director asked for more details about the Beneficiary's intended 
U.S. duties, because the job description lacked detail. In response, the Petitioner submitted a new 
job description: 
• Direct and supervise [the Petitioner's] global operations on existing investments, 
including and future investment ventures. (50%) 
• Direct [the Petitioner's] financial activities to maximize investments and increase 
efficiency. (1 0%) 
• Review [the Petitioner's] financial statements, sales and activity reports, and other 
performance data to measure productivity and goal achievement. (5%) 
• Direct [the Petitioner's] Management Department requirements, including 
interviewing, hiring, and firing department managers. (5%) 
• Establish and implement departmental policies, goals, and objectives for the 
Management Department, including review and approval of 
Employee Manual. (5%) 
• Create and implement Business Plan and that of future investment 
ventures. (5%) 
• Analyze corporate operations to evaluate [the Petitioner's] performance in 
meeting 
objectives and determine areas of potential inefficiencies, program 
improvement, and policy changes. (1 0%) 
• Direct negotiations of contractual and financial obligations on behalf of [the 
Petitioner], such as Lease Agreement. ( 
1 0%) 
The statement that the Beneficiary will "[d]irect and supervise [the Petitioner's] global operations" 
for 50% of his time is an assertion of the Beneficiary's authority, which does not sufficiently explain 
the tasks he would perform to exercise that authority. The Petitioner states that the Beneficiary will 
"[d]irect [the Petitioner's] financial activities," but the record contains little information about what 
those financial activities are apart from sending and receiving international wire transfers. The new 
job description refers to the "Management Department" of the petitioning company with subordinate 
managers whom the Beneficiary would hire and fire, but the record identifies no other employees, 
management or otherwise, within the petitioning company itself. The Petitioner has not provided 
any basis for us to conclude that, in the near future, the Beneficiary will need to devote (on average) 
several hours each week to staffing its management department. (Other parts of the job description 
refer specifically to so there is no reason to assume that references to the petitioning 
company by name implicitly include 
The Director found that the Beneficiary's job description established his level of authority in the 
organization, but did not provide enough details to show that the Beneficiary's position is primarily 
executive. 
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Matter of H- Inc. 
On appeal, the Petitioner states that it has submitted enough evidence to establish eligibility by a 
preponderance of the evidence, and that the Director erred by "failing to acknowledge the evidence 
... shows the Petitioner will employ the Beneficiary in a purely executive capacity." As discussed 
above, the job descriptions emphasize the Beneficiary's authority and general responsibilities rather 
than the specific tasks he performs to exercise that authority and meet those responsibilities. 
Furthermore, the job description submitted initially bears little resemblance to the one submitted in 
response to the RFE. For example, the first job description stated that the Beneficiary spends 5% of 
his time negotiating contracts and financial obligations; the second description doubled that amount. 
The first version indicates that the Beneficiary spends 30% of his time on activities relating to 
franchising the second version does not mention franchising at all. 
The Petitioner quotes the four-part statutory definition of executive capacity and states: 
In the Denial, the Service seems to take the position that the Petitioner must show all 
of these elements, as written, and that these elements are mutually exclusive of the 
elements required to be shown for managerial capacity. However, in the corporate 
world . . . , there is always a lead person in charge of directing and overseeing the 
corporation .... 
Regardless of ... the specific duties an executive position of managerial position may 
require, there will always be overlap. 
Holding the Petitioner to all the elements of an executive capacity is not simply the position of 
USC IS or the opinion of the Director. Rather, it is a statutory requirement. The four clauses within 
the definition are connected by the conjunction "and" rather than "or." 
Also, the terms "manager" and "executive" may not be "mutually exclusive," but they are not 
interchangeable either. A petitioner who claims that a beneficiary is both a manager and an 
executive must meet all of the requirements for both categories; there is no provision for a hybrid 
manager/executive that embodies only some traits of each. We acknowledge that, particularly in 
small companies, there may be some degree of "overlap," but the Petitioner has also emphasized that 
it "will employ the Beneficiary in a purely executive capacity.'' As defined, an executive is not a 
manager; instead, the executive directs the management of the company, which is not the same thing 
as personally managing that company or performing its actual business functions. 
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. 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). The actual duties themselves reveal the true nature of the 
employment. !d. Therefore, reciting a beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. 
Matter of H- Inc. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Under the statute, a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for a beneficiary to direct and a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an owner or sole managerial employee. A beneficiary 
must also 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." Section 1 0 1 (a)( 44 )(B) of the Act. 
We agree with the Director's finding that the Petitioner did not provide enough details about the 
Beneficiary's position to establish that his duties would be primarily executive. 
C. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, 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. 
We also consider the proposed position in light of the nature of the Petitioner's business, its 
organizational structure, and the availability of staff to carry out the Petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a Petitioner has, USCIS "may properly consider an organization's small size as one factor 
in assessing whether its operations are substantial enough to support a manager."' Furthermore, it is 
appropriate for USCIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that 
does not conduct business in a regular and continuous manner. See. e.g., Systronics Corp. v. INS, 
153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
1 Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic o(Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
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Matter of H- Inc. 
The Petitioner's organizational chart focuses on the staffing of 
The Petitioner 
The Beneficiary , President & CEO 
I 
Manager 
Sushi Chef Chef Head Waitress 
I I 
Assistant Sushi Chef 2 Waitresses 
A revised chart submitted in response to the RFE showed only one waitress subordinate to the head 
waitress. Payroll records from early 2016 showed six employees , consistent with the newer chart. 
The chart did not show that the Beneficiary has any subordinate employees at the petitioning 
company itself. According to tax and payroll documents in the record, the Beneficiary was the 
Petitioner's only employee in 2014,2015, and early 2016 (the submitted records stop at April2016) . 
The Petitioner has not explained who handles its international transactions in the absence of 
employees. If the foreign company actually performs the shipping and financial transactions, then it 
is not clear to what extent the Petitioner is doing business in the United States. The presence of an 
agent or office does not meet the definition of "doing business '' at 8 C.F.R. § 204.5(j)(2) . The 
Petitioner's bank statements include reproductions of checks issued by the petitioning company. 
Almost all of the checks were paid either to the Beneficiary or to the law firm that employs the 
Petitioner's attorney of record. The record provides little information about ongoing business 
activity at the petitioning company (as opposed to the passive act of owning previously purchased 
shares in a restaurant). 
The Petitioner identified one employee as a manager, with the following duties: 
• Primary function is to make on-site decisions that affect the work order of the 
company in situations that require immediate action . 
• Coordinate the available human resources to p[er]form tasks as well as assigning 
work schedules for employees and helping in the hiring process . 
• Ensure the facility where the restaurant operates is in direct compliance with 
federal and state laws. 
• Coordinating logistics strategies for obtaining the necessary inventory to operate 
the restaurant. 
• Creates and supervises marketing plans to attract customers. 
• Implements general business plans set by the President /CEO. 
• Maintains the budget that was set forth. 
• Communicate any comments or concerns between employees and the CEO. 
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Matter of H- Inc. 
Some of the listed tasks are operational or administrative rather than managerial, such as creating 
marketing plans. With respect to "[ c ]oordinating logistics strategies for obtaining the necessary 
inventory," the Petitioner did not identify any employee who actually places the orders, and 
therefore, this appears to be the manager's own function. The Petitioner has not shown that the 
individual identified as a manager is, in fact, a manager rather 
than a supervisor. 
The Petitioner claimed that all of the positions at are full-time ( 40 hours per week). The 
record does not support this claim. The sushi chef and manager received salaries rather than hourly 
wages, in amounts consistent with full-time employment, but no employee paid an hourly wage 
worked 2080 hours per year. Payroll records from 2015 (the year the Petitioner filed the petition) 
indicate that the chef worked 1920 hours; the head waitress worked 1749 hours; and the other 
employees worked between 231 and 622 hours during the year. Records from 2014 show broadly 
similar figures. 
Also, the position descriptions do not account for necessary and ongoing functions such as payroll, 
cleaning, and maintenance, and therefore the Petitioner has not shown that the manager has 
delegated those functions to subordinates. 
In denying the petition, the Director found that the Petitioner had claimed eight employees but had 
not documented any employees other than the Beneficiary. The Director did not count 
employees, because the petitioning entity does not pay those employees and the employees of a sushi 
restaurant do not relieve the Beneficiary from performing the day-to-day tasks of an investment 
company. The Director found that the Petitioner had not identified any employees "who would 
prepare the financial statements, sales and activity reports, and other performance data" for the 
Beneficiary to review and analyze. The Director stated: "When a company has a limited number of 
employees ... USCIS may reasonably conclude ... that [the Beneficiary must perform] a wide 
range of daily functions associated with running a business." 
On appeal, the Petitioner contends that the passage quoted above "is completely unfounded," 
because the Director cited no statute, policy memorandum, or precedent decision to support it. The 
quoted passage is not a statement of law or policy. Rather, it is a logical conclusion, derived from 
the available evidence. If, for instance, the Petitioner discusses financial reports, but has not shown 
that the Beneficiary has any subordinates to write them, then it is reasonable to conclude that the 
Beneficiary himself prepares them. Section 101 (a)( 44 )(C) of the Act specifically permits us to take 
the staffing levels of the petitioning organization into account, provided that we consider that 
information in its proper context. 
The Petitioner asserts, on appeal, that it has provided information which "details the daily operations 
and individual tasks of the Petitioner, the Beneficiary, the Subsidiary, and the subordinate staff." 
The Petitioner has provided little information about the tasks performed at the petitioning company 
(as opposed to its subsidiary, , or who, other than the Beneficiary, performs those tasks 
in the absence of any subordinate staff or documented contract labor. 
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Matter of H- Inc. 
D. Prior L-lA Nonimmigrant Status 
The Petitioner states that the renewal of the Beneficiary's L-1A status shows that the Petitioner has 
proven that it will employ the Beneficiary in an executive capacity. The Petitioner quotes chapter 
22.2(i)(3)(H) ofthe Adjudicator's Field Manual: 
Eligibility as an L-1 A nonimmigrant does not automatically establish eligibility under 
the E13 [classification] ... ; each petition is separate and independent, and must be 
adjudicated on its own merits, under the corresponding statutory and regulatory 
proVISIOnS. 
You should be aware that some courts, notwithstanding the fact that each petition 
must be adjudicated on its own merits, have asked USCIS to provide an explanation 
as to why, if the alien had previously been classified in a roughly analogous 
nonimmigrant category, USCIS has determined that the alien is not eligible for 
classification in the employment-based immigrant visa classification in question. For 
this reason, where possible, it would be appropriate to provide a brief discussion, 
geared to the specffic material facts of the underlying 1-140 petition, as to why, 
notwithstanding the previous nonimmigrant visa petition approvals, the petitioner has 
failed to meet its burden to establish eligibility for approval of its I -140 petition. 
The first part of the above quoted passage refutes the Petitioner's contention that the Beneficiary's 
L-1 A nonimmigrant status is "probative" of his eligibility for the immigrant classification now 
sought. The Director was not required to defer to the Beneficiary's L-1A status. With respect to the 
remainder of the quotation, it is true that the Director's decision does not specifically refer to the 
Beneficiary's prior nonimmigrant petition approval and extension of status. The Director did, 
however, explain why the Petitioner has not met its burden of proof in this proceeding. Because 
there is no separate, more lenient threshold for L-1 A nonimmigrants, the Director's decision notice 
is not legally deficient. The omission of recommended language does not invalidate the Director's 
decision. 
The approved nonimmigrant petition and extension application are not before us in this proceeding. 
The evidence submitted in support of the immigrant petition is not sufficient to meet the Petitioner's 
burden of proof and establish the Beneficiary's eligibility for the classification sought. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it will employ the Beneficiary in an executive capacity in the United States. 
III. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Beyond the Director's decision, the record does not establish the Beneficiary's employment abroad 
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. § 204.5(j)(3)(i)(B) 
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Matter of H- Inc. 
requires the Petitioner to submit a statement from an 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. 
The Petitioner's foreign affiliate, which imports and exports craft products, provided the following 
breakdown of the Beneficiary's responsibilities as general director and CEO of the foreign company: 
• Represent the company nationally and internationally. (50%) 
• Manage and evaluate the different directing departments of the Company. (1 0%) 
• Evaluate new development projects and business growth. (10%) 
• Approve the budget of the Company. (5%) 
• Enter into contracts, agreements, and other legal acts to achieve the Company 
mission. ( 5%) 
• Assess the organizational climate, staff training, safety and civil protection 
business. ( 5%) 
• Run the agreements and provisions ofthe Administrative Council. (5%) 
• Submit plans for sales, expenses, income, investments, and organizational and 
administrative structure for the knowledge and approval of the Board. (5%) 
• Ensure the administrative, economic, and organizational performance according 
to the regulations of the Company. (5%) 
As with the U.S. job description, the foreign job description lacks detail and describes broadly 
general areas of responsibility without providing many specifics about how the Beneficiary will 
achieve the stated goals. The list indicates that the Beneficiary devotes fully half of his time to 
representing the company. The Petitioner has not explained what this entails or why it takes up so 
much ofhis time. 
The job description indicated that the Beneficiary spent 10% of his time evaluating new projects and 
growth, but the record does not show significant growth or new projects. Because the job 
description pertains to a position that the Beneficiary previously held, it should describe the 
Beneficiary's actual activities rather than potential ones that the Beneficiary had the authority to 
pursue but did not do so. 
In response to the RFE, the Petitioner submitted a significantly different percentage breakdown of 
the Beneficiary's duties: 
• Supervise the global operation of [the foreign company] with a total of 27 
employees in the warehouse and the sales store. (50%) 
• Supervise the Management Team. (10%) 
• Create policies and procedures for the daily operation of [the foreign company] to 
be implemented by all the employees of [the foreign company]. (5%) 
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Matter of H- Inc. 
• Develop guidelines and procedures for the import operations in the warehouse 
and of sales in the retail stores. (5%) 
• Develop and deploy the logistics to serve the business programs between [the 
foreign company] and the Affiliate Company ... in the United States. (5%) 
• Create policies and procedures to maximize the use of equipment, merchandise, 
and other resources to guaranty the minimum time of inactivity and a high 
efficiency. (5%) 
• Responsible for reporting expenses, income, and earnings to the Shareholders in 
the Board of Directors of [the foreign company). ( 1 0%) 
• Develop and initiate marketing programs for [the foreign company]. (5%) 
The Petitioner did not explain why the two job descriptions were so different, when both purport to 
describe the same job that the Beneficiary performed in the past (and which therefore cannot change 
now). 
The foreign company's organizational chart did not show any "Administrative Council," although 
the Beneficiary's initial job description included adhering to that body's "agreements and 
provisions." The chart also identified an outside accounting firm, which raises questions about the 
duties of the in-house accounting staff shown on the same chart. 
The foreign company is larger and more organizationally complex than the petitioning U.S. entity, 
but the Petitioner's vague and conflicting accounts of the Beneficiary's duties there do not establish 
that the Beneficiary's duties were primarily those of a manager or executive. 
IV. CONCLUSION 
The Petitioner did not establish that the Beneficiary will be employed in the United States, or has 
been employed abroad, in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-lnc., ID# 452019 (AAO June 29, 2017) 
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