dismissed EB-1C Case: Jewelry

U.S. Citizenship_ 
and Immigration 
Services 
MATTER OF M-J- INC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 16, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a wholesale jewelry company, seeks to permanently employ the Beneficiary as 
president and general manager under the first preference immigrant classification for multinational 
executives or managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ 1153(b)(l )(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in an executive or managerial capacity. 
The instant petition was approved; however, the Director of the Texas Service Center later revoked 
the approved petition, concluding that the record did not establish that: (1) the Petitioner had a 
qualifying relationship with the Beneficiary's former foreign employer, (2) the Beneficiary acted in a 
managerial or executive capacity in his former capacity abroad, and (3) the Beneficiary would act in 
a managerial or executive capacity in the United States. In addition, the Director determined that the 
Petitioner and Beneficiary had willfully misrepresented material facts. 
On appeal, the Petitioner submits additional evidence and contends that the Director erred in his 
conclusions. 
Upon de novo review, we will dismiss the appeal and affirm the Director's revocation of the petition. 
However, we will withdraw the Director's conclusion that the Petitioner and Beneficiary willfully 
misrepresented material facts. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or 
executive capacity, and seeks to enter the United States in order to continue to render managerial or 
executive services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the 
Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years 
preceding the filing of the petition, that the beneficiary is coming to work in the United States for the 
Maller of M-J- Inc 
same employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. 
employer has been doing business for at least one year. See 8 C.F.R. § 204.50)(3). 
Section 205 of the Act states: "The Secretary of Homeland Security may, at any time, for what he 
deems to be good and sufficient cause, revoke the approval of any petition approved by him under 
section 204. Such revocation shall be effective as of the date of approval of any such petition." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (quoting Malter of Estime, 19 l&N Dec. 450 (BIA 
1987)).1 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The first issue we will address is whether the Petitioner established that the Beneficiary would act in 
a managerial capacity in the United States. The Petitioner did not claim that the Beneficiary would 
be employed ·in an executive capacity. Therefore, we restrict our analysis to whether the Beneficiary 
would be employed in a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manag~s an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
1 A Form 1-140 multinational executive or manager petition filed on behalf of the Beneficiary was approved by the 
Director of the Nebraska Service Center on January 13, 2017. The Director of the Texas Service Center later revoked 
this approved petition on January 23, 2018, following die issuance of a notice of intent to revoke (NOIR) on August 17, 
2017. The Director of the Texas Service Center concluded that the petition had been approved in error and that the 
Beneficiary was not eligible for the benefit sought. 
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Matter of M-J- Inc 
When examining the managerial capacity of a given beneficiary, we will review 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 
capacity. 8 C.F.R. § 204.50)(5). Beyond the required description of the job duties, we examine the 
company's organizational structure, the duties of a beneficiary's subordinate employees, the 
presence of other employees to relieve a beneficiary from performing operational duties,- the nature 
of the business, and any other factors that will contribute to understanding a beneficiary's actual 
duties and role in a business. 
Accordingly, we will discuss evidence regarding the· Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary was performing certain high-level responsibilities. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary was primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petition~r stated that it was established in 2005 to export and sell the foreign parent company's 
jewelry in the United States. In support of the petition, the Petitioner provided the following duties 
for the Beneficiary, among others: 
• manage "the activities of the company," 
• direct its "management, growth expansion and promotion," 
• help the company's marketing department "in day to day interactions with 
customers," 
• provide "directives based on seasonal changes," 
• ensure "the availability of Gemstones and star studded jewelry stones for sale in 
the USA," 
• conduct "research for customer needs" and "growing trends in designing," 
• communicate with the foreign parent regarding "ideas and observations from 
various shows ... before designing and creating the studded jewelry and other 
jewelry products," 
• use "his knowledge and expertise to guide and direct employees [on} the quantum 
and characteristics of material to be used on the basis of customer's preferences," 
• "examine the designs made by the [foreign parent], [and} give his opinions and 
requirements on alterations," 
• guide "employees to achieve a pleasing and affordable mix of color, weight. .. and 
a safe shape for mounting," 
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Matter of M-J- Inc 
• direct employees on "cleaning, polishing, assembling, repairing antique jewelry 
and finishing fine jewelry," 
• bring new ideas, attend major jewelry trade shows, and develop business 
relationships, 
• review and approve financial statements, 
• make "decisions regarding credit limits" and "investment decisions," 
• review and approve budgets, and 
• "ensure adherence to implementation of [an] effective reporting framework." 
In addition, in response to a request for evidence (RFE), the Petitioner provided a different duty 
description for the Beneficiary. This duty description indicated that the Beneficiary would be 
devoted to the following duties, among others: 
• coordinate the work of the "marketing and sales agents," 
• oversee the marketing manager "who ensures availability of stock of goods, 
efficient and timely delivery service," 
• formulate "overall policy for marketing/sales of company products," 
• ensure "that the system is being followed," 
• set sales targets of about $1 million, ensuring that they are met, and reviewing and 
making necessary changes to strategy with the marketing manager to make sure 
these goals are met, 
• create "the E-commerce/website" and ensure that the marketing and sales agents 
take advantage of it, 
• review "marketing analysis reports submitted by the Marketing/Sales Manager," 
• decide "on the need for opening new branch offices," 
• consult with his subordinate marketing manager on "ov.erall directives on the 
broad strategies," 
• set sales goals in consultation with the sales and marketing manager," 
• make "necessary forecasts about the organization's sales goals," 
• consider reports submitted by subordinates, 
• attend "all the major trade shows" to study trends, 
• meet with "long term clients and new clienteles" and exchanges ideas with them, 
• work on proposals and direct the manufacturing of goods by the foreign parent 
based on the information gathered at the trade shows, 
• coordinate with the secretary/bookkeeper on "various tax issues" and the "regular 
payment of sales taxes," 
• ensure "the timely preparation and submission of necessary papers/documents" to 
the foreign parent, 
• initiate "new policies and procedures," forward "reports to the principal entity in 
India," and receive policy directives from the foreign parent, and 
• coordinate with the foreign parent company to ensure "availability of goods, 
quality of goods, and timely delivery." 
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Matter of M-.1- Inc 
As noted above, a NOIR was issued stating that the Beneficiary's submitted job description 
indicated that he would be primarily engaged in non-qualifying operational duties, such as attending 
trade shows and seeking out business ventures. In response, the Petitioner submitted largely the 
same duty description provided in response to the RFE. 
Upon review, the Petitioner questionably submitted two largely different duty descriptions, one in 
support of the petition, and another in response to the RFE and the NOIR. The initial duty 
description provided with the petition listed several non-qualifying operational tasks, while the latter 
two duty descriptions provided in response to the RFE and NOIR indicated that the Beneficiary 
would delegate/delegated non-qualifying tasks to his subordinates such as the sales/marketing 
manager and the secretary/bookkeeper. For instance, in the initial duty description, the Petitioner 
indicated that the Beneficiary would be tasked with several non-qualifying operational duties such as 
helping in day-to-day interactions with customers, ensuring the availability of gemstones and 
. jewelry, conducting customer research, designing jewelry, guiding and directing employees on the 
design and production of jewelry, examining designs, providing opinions on alterations, guiding 
employees on safe shaping and mounting, attending trade shows, amongst other non-qualifying 
operational tasks. 
In contrast, the Beneficiary's latter two duty descriptions emphasized his coordination of these tasks 
through a subordinate sales/marketing manager, including ensuring that systems would be followed, 
setting sales goals, creating a website, deciding on new branches, as well as other general policy and 
strategy matters after reviewing reports received from his subordinates. These materially different 
duty descriptions leave question as to the actual duties that would be performed by the Beneficiary 
and whether he would be primarily relieved from performing non-qualifying duties. 
Further, the Petitioner submitted substantial documentary evidence reflecting that the Beneficiary 
would be primarily engaged in non-qualifying operational level duties. For instance, the Petitioner 
submitted numerous invoices from vendors bearing the Beneficiary's name, as well as bank records 
with copies of checks paying these invoices with his signature. Likewise, the Petitioner provided 
shipping documentation through several years of its operations up until the date the petition was 
filed including the Beneficiary's name. The Petitioner also submitted emails in response to the NOIR 
indicating the Beneficiary's communication of orders and designs to foreign parent employees, some 
dated in late 2015.2 In addition, the Petitioner provided documentation reflecting that the 
Beneficiary tracked and paid the company's sales taxes and all of its state employer's quarterly wage 
reports indicate that he submitted these documents. 
In contrast, there is little evidence to demonstrate that the Beneficiary would be primarily delegating 
these non-qualifying duties to his subordinates as asserted. For example, the Petitioner indicated in 
his latter two duty descriptions that he would devote 3% of his time to attending "major trade 
shows" and noted elsewhere that lesser trade shows were delegated to his subordinates. However, 
there is substantial documentation on · the record indicating that the Beneficiary would spend a· 
2 The petition was filed on February 22, 2016. 
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Maller of M-.J- Inc 
significant amount of his time attending trade shows, including invoices and emails from these 
events over several years. The record also includes documentation reflecting the Beneficiary 
purchasing tickets to attend these trade shows, his arrangement of travel to them, and his 
coordination of the shipment of goods to sell at these events. Meanwhile, there is little documentary 
evidence to demonstrate that his subordinates would regularly attend trade shows as claimed and t~at 
. they would primarily relieve him from these non-qualifying duties. 
The Petitioner also stated that the Beneficiary would be tasked with creating the company's website, 
but it provides no supporting documentation indicating that he would delegate the operational tasks 
inherent in this responsibility to his subordinates. Indeed, despite contending that the Beneficiary 
would be delegating nearly all of his day-to-day tasks through his subordinates, there is little 
evidence to support this assertion. In contrast, there is substantial evidence supporting the 
Beneficiary's direct performance of these non-qualifying duties. 
Whether a beneficiary is a managerial employee turns on whether the petitioner has sustained its 
burden of proving that their duties are "primarily" managerial. See section 10l(a)(44)(A) of the Act. 
. Here, the Petitioner does not document what proportion of the Beneficiary's duties would be 
managerial and what proportion would be non-qualifying. The Petitioner submits evidence 
indicating the Beneficiary's involvement i~ operational-level tasks that do not fall directly under 
managerial duties as defined in the statute, but does not quantify the time he spends on these duties. 
For this reason, we cannot determine whether the Beneficiary is primarily performing the duties of a 
manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. ·2d 22, 24 (D.D.C. 1999). 
Furthermore, the Petitioner submits few examples and little supporting documentation to substantiate 
the qualifying managerial duties the Beneficiary would perform on a daily basis. To the extent the 
Beneficiary's duty descriptions reference potential qualifying duties, they are generic, and could. 
apply to any manager acting in any business or industry and they do not provide insight into the· 
actual nature of his role. The Petitioner provided insufficient examples and little supporting 
documentation to demonstrate the Beneficiary's performance of qualifying duties, such as overall 
marketing policies he would formulate, systems he would ensure are followed, sales goals he will set 
for each employee, or changes he will make to sales goals in response to performance. Furthermore, 
the Petitioner regularly mentions reports provided by the Beneficiary's sales/marketing manager and 
secretary/bookkeeper, including sales figures and forecasts, marketing analysis reports, and monthly 
accounting reports; however, few of these documents are provided on the record. 
In addition, the Petitioner did not provide sufficient detail regarding customer credit policies the 
Beneficiary would put in place, vendor and employee payment policies he would create, reporting 
systems he would put in place, or "directives" or "policy. frameworks" he would implement. The 
Beneficiary's duties also emphasize his coordination and communication with the foreign parent as 
to policy and financial matters; but, there is no supporting documentation indicating his coordination 
with foreign parent leadership as to the direction of the Petitioner. However, the record does include 
documentation and emails reflecting his coordination with the foreign parent on. design, shipments, 
inventory, and other non-qualifying operational aspects. Further, this lack of detail and 
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Malter of M-J- Inc 
substantiating documentation as to his qualifying duties is noteworthy, particularly since the 
Beneficiary is asserted to have worked in his asserted managerial capacity since 2005. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily 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). 
In sum, the supporting documentation provided by the Petitioner indicates that the Beneficiary 
would more likely than not be primarily devoted to the non-qualifying operational duties listed in his 
initial duty description such as his involvement with daily customer interactions, designing and 
creating jewelry designs, consulting employees as to the shape and mounting of jewelry, bringing 
new ideas for products from trade shows, ordering custom designed products for customers from the 
foreign parent, and creating and maintaining the company's website. 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational manager within the meaning of section 101 (a)( 44 )(A) of the Act. The Beneficiary 
may exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of 
authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that his actual duties would be primarily managerial in nature. 
8. Statling 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section IO I ( a)( 44 )(C) of the Act. 
• As previously discussed, the Petitioner asserts that the Beneficiary qualifies as a manager. 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. Since the Beneficiary was not offered a 
position as a function manager, he must qualify as a personnel manager to be eligible for 
classification as a multinational manager. Personnel managers are required to primarily supervise 
and control the work of other supervisory, professional, or managerial employees. Contrary to the 
common understanding of the word "manager," the statute plainly states that a "first line supervisor 
is not considered to be acting in a managerial capacity merely by virtue of_ the supervisor's 
supervisory duties unless the employees supervised are professional." 8 C.F.R. § 204.5G)(4)(i). 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(i)(2). 
On the Form 1-140, the Petitioner stated that it had more than seven emplo)'ees at the time the 
petition was filed in February 2016. In support of the petition, the Petitioner submitted an 
organizational chart reflecting that the Beneficiary supervised a marketing/sales manager, who in 
tum oversaw a secretary/bookkeeper and five marketing/sales agents. The Petitioner provided 
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Malfer of M-.J- Inc 
supporting lease, tax, and other documentation indicating that it operated two locations, one in New 
York and another in California. The evidence reflected that the office in California was staffed by 
two marketing/sales agents, while the remaining employees worked out of the New York office. 
In the NOIR, it was noted that the organizational chart provided on the record was "significantly 
different" from one provided with another Form I-140 submitted by the Petitioner in 2015. For 
instance, the Director indicated that the marketing/sales manager was listed as a marketing/sales 
agent in the 2015 organizational chart and pointed to_ the two marketing/sales agents based in 
California. The Director also emphasized that the Petitioner claimed to employ a full-time 
secretary/bookkeeper, but stated that its tax documentation since 2010 had been completed by a 
certified public accountant. In addition, the Director pointed to photographs of the Petitioner's 
business in New York and stated t_hat these were reflective of a jewelry store with only a few 
individuals working a front counter. 
In response, the Petitioner provided an organizatio~al chart largely consistent with that previously 
submitted, including the Beneficiary supervising the same marketing/sales manager, three 
marketing/sales agents based in its New York office, two marketing/sales agents based in its 
California location, and a secretary/bookkeeper. 
First, we do not concur with ~he Director that the Petitioner's organizational chart provided in 
support of a 2015 F onn 1-140 petition was materially inconsistent with the organizational charts 
provided on the current record. The charts submitted on the record reflect that the Beneficiary 
supervised a marketing/sales manager and subordinate marketing/sales agents based both in 
California and New York and a secretary/bookkeeper. In addition, the differences between the 2015 
organizational chart submitted with the 2015 1-140 petition and those provided here appear minimal. 
Regardless, the Petitioner has not submitted sufficient evidence to establish that the Beneficiary 
would be employed as a personnel manager. Throughout this proceeding, the Petitioner has 
indicated that the Beneficiary would oversee one subordinate manager, the marketing/sales manager, 
who oversees marketing/sales agents and a secretary/bookkeeper. However, the Petitioner did not 
provide a sufficiently detailed duty description for the asserted marketing/sales manager to 
demonstrate that he would act in a supervisory position subordinate to the Beneficiary. For instance, 
the Petitioner generically stated that the Beneficiary's asserted subordinate manager was tasked with 
overseeing "all purchase/sale transactions through established systems as per the working system of 
the corporation," ensuring "smooth service as per the established working system," reporting to the 
president on "various developments/requirements in training and appraisal of Marketing/Sales 
Agents," responding to requirements of the marketing/sales agents, and overseeing the performance 
and reports of the marketing/sales agents. 
However, the Petitioner provides few specifics and supporting documents to corroborate the 
marketing/sales manager's duties, such as the "established working systems" he would enforce, 
developments in training he would handle, or appraisals he would complete. In fact, as we have 
discussed, the record includes extensive evidence of the Beneficiary's involvement with the day-to-
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Matter of M-J- Inc 
day operational tasks of the business and there is little supporting documentation indicating that he 
would delegate "all purchase/sale transactions" and other such non-qualifying matters to a 
subordinate marketing/sales manager. For instance, the Petitioner provided no evidence that it 
produces jewelry in the United States and states directly that its production takes place abroad. It 
also submitted invoices, shipping documents, emails, and duties reflecting that the Beneficiary was 
tasked with coordinating with the foreign employer on the production and shipment of jewelry. 
However, the Beneficiary's asserted marketing/sales manager does not appear on any of these 
transactional documents and there is little evidence he would coordinate and manage other 
employees or customer orders abroad. As we previously discussed, the Petitioner also states in the 
duties of the Beneficiary and the marketing/sales manager that the latter is tasked with providing the 
Beneficiary with weekly reports; however, it submits no supporting documentation of these reports 
or other evidence to corroborate the marketing/sales manager's role. 
The Petitioner did submit various support letters from suppliers stating that their dealings with the 
company "are done with the Marketing/~ales Agents, and Marketing/Sales Manager." These letters 
further noted that the suppliers only "deal with [the Beneficiary] when there is any issue with the 
goods ... when those issues cannot be solved by their marketing/sales department." However, we do 
not find these support letters credible, since they appear to be form letters with identical language 
and they provide little insight to the specific relationships the Petitioner has with each of these 
suppliers. It appears more likely that these letters were drafted by the Petitioner and signed by its 
suppliers and they are not probative in demonstrating that the Beneficiary would primarily delegate 
non-qualifying duties to his subordinates. 
In addition, the supporting documentation provided along with these letters does not support that the 
Beneficiary would be relieved by his subordinates from non-qualifying operational matters. In fact, 
the invoices and other documents provided along with these support letters again reflect the 
Beneficiary's wide involvement in non-qualifying duties, including invoices listing his name, a wire 
transfer to a supplier sent by him, invoices indicating him paying for booths at trade shows, and 
emails to the foreign parent regarding the production and shipment of jewelry to be displayed at 
these trade shows. [n comparison, there are no invoices, shipment documents, or other such 
documents bearing the names of the Beneficiary's subordinate marketing/sales manager, the 
marketing/sales agents, or the secretary/bookkeeper. This is particularly questionable since the 
secretary/bookkeeper's duties indicate that he is tasked with all correspondence, travel and 
reservations, and ensuring that all vendors are paid on time. 
Likewise, despite claiming that the Beneficiary would only attend "major" trade shows, there is no 
documentary evidence indicating that his subordinates would attend them in his place. Substantial 
documentation dating back several years reflects the Beneficiary making arrangements for, and 
attending, these trade shows. In fact, the Petitioner's most recent 2016 IRS Form 1120, U.S. 
Corporation Tax Re\urn indicated that the company's two most substantial expenses during that year 
were "freight, duty and other costs" ($138,549) and "trade show" ($543,473); however, there is little 
credible supporting evidence to indicate that the Beneficiary would be relieved of coordinating 
shipments of its jewelry manufactured in India or from attending trade shows to sell these items. As 
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Maller of M-J- Inc 
discussed, the weight of the evidence indicates that the Beneficiary would primarily coordinate these 
shipments and attend the trade shows. In addition, the 2016 IRS Form 1120 reflects that the 
company spent $4,059 on "jewelry repair," and with no apparent production or repair employees on 
· staff in the United States, it appears likely that the Beneficiary has and would continue to perform 
these operational tasks as well, particularly given his asserted experience in the manufacture and 
repair of jewelry. 
Therefore, the Petitioner has not credibly established that the Beneficiary would oversee subordinate 
managerial employees as necessary to qualify him as a personnel manager. 
As such, the only other remaining question is whether the Beneficiary would oversee professional 
subordinates. In determining whether a beneficiary will manage professional employees, we must 
evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry 
into the field of endeavor. C.f 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any 
occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation"). Section 101 {a)(32) of the Act, states that "[t]he term 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." Therefore, we 
must focus on the· level of education required by the position, rather than the degree held by 
subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity. 
The Petitioner has not demonstrated that the Beneficiary would oversee professional subordinates. 
The Petitioner asserts that the subordinate sales/marketing manager position requires a bachelor's 
degree. However, the Petitioner does not articulate why this position requires a bachelor's degree. 
Further, as we have discussed, the duties of this position are vague and do not sufficiently establish 
that its performance requires such a level of education. Therefore, the Petitioner. has not 
demonstrated that the Beneficiary would supervise professional subordinates. 
In conclusion, the Petitioner has not established that the Beneficiary would act as a personnel 
manager. The Beneficiary's duty description is overly vague and the record includes substantial 
documentary evidence indicating that the Beneficiary performed and would continue to perform 
many non-qualifying duties related to t!le company's day-to-day operations. The evidence is not 
sufficient to demonstrate that the Beneficiary would oversee subordinate managers and 
professionals. The Petitioner submitted an insufficient duty description for the Beneficiary's lone 
asserted managerial and professional subordinate and it did not provide documentation to 
substantiate that the Beneficiary would primarily delegate the non-qualifying duties of the business 
to him and his subordinates. 
Ill. QUALIFYING RELATIONSHIP 
Next, we will determine ~hether the Petitioner established that it has a qualifying relationship with 
the Beneficiary's former foreign employer. To establish a "qualifying relationship," the Petitioner 
must show that the Beneficiary's foreign employer and the proposed U.S. employer are the same 
10 
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Maller of M-J- Inc 
employer (a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as 
"affiliates." See§ 203(b)(l)(C) of the Act; see also 8 C.F.R. § 204.5(i)(2) (providing definitions of 
the terms "affiliate" and "subsidiary"). 
A. Background 
The Petitioner indicated in a support letter submitted along with the Form 1-140 that it was 
established in 2005 as a wholly owned subsidiary of India (S-G-), but that its 
shares were later transferred to another Indian entity ______ (K-C-).' 
The Petitioner submitted two share certificates, the first reflecting the issuance of 200 shares to S-G­
on July 10, 2005, and another indicating the issuance of 200 shares to K-C- on March 29, 2007. The 
Petitioner's share ledger shows that S-G- paid $10,000 for the 200 shares on July 10, 2005 and that 
these shares were transferred from The stock ledger also indicates that K-C- paid 
$12,000 for the transfer of 200 shares from S-G- on April l, 2007. 
Further, the Petitioner submitted two affidavits from an accountant based in India. In the first letter, 
the accountant stated that he issued a certificate pursuant to which K-C- took over all assets from S­
G- on April 23, 2013, while the other letter explained that S-G- was "taken over" and is "now a unit 
of' K-:C- as of April l, 2013." 
In the NOIR, several discrepancies were noted regarding the documents submitted to support the 
ownership of the petitioning and foreign parent companies. The Director stated that the record 
reflected that the Petitioner had been incorporated on May 17, 2005, but that there was no evidence 
that the company was ever owned by _ as reflected in the stock ledger. The Director also 
pointed to the Indian accountancy affidavits which stated that the takeover of all assets of S-G- by 
K-C- took place in April 2013, while the stock ledger reflected that the transfer of the Petitioner took 
place in 2007. 
In addition, the Director referred to Form 1-140 petitions previously filed by the Petitioner which 
included two documents titled "Deed of Dissolution of Partnership" specific to S-G- and K-C- both 
dated in December 2005. The deed dissolution specific to S-G- indicated that it was dissolved as an 
Indian partnership interest in December 2005, including the Beneficiary "retiring" from S-G- as a 
partner and leaving the option fo~ the entity to continue as a sole proprietorship directed by the other 
partner It also reflected that all assets, liabilities and disputes had been settled between 
the partners upon this dissolution and that "the subsidiary organization in United States of America, 
[the Petitioner], be given to [K-C-], owned by wife of [the Beneficiary]." 
In addition, the Director pointed to another deed of dissolution specific to K-C- noting that this 
document reflected that the company's partners, the Beneficiary's spouse and , had also 
settled up the affairs of the partnership and brought "to an end this firm." This deed of dissolution 
also stated that there was no objection by the partners to the Beneficiary's spouse carrying on the 
firm as a sole proprietorship . The Director stated that the apparent dissolution of both foreign parent 
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Matter of M-J- Inc -
entities and other discrepancies on the record called into question whether a qualifying relationship 
existed from the time the Beneficiary entered the United States in 2005 until the date the current 
petition was filed in 2016. 
In response to the NOIR, the Petitioner indicated that it was incorporated in May 2005, but later. 
indicated that it issued stock certificates in July 2005, as reflected on th~ initial certificate and the 
stock ledger. The Petitioner stated that S-G- "transferred an amount of $20,500, for initial 
investment on June 18th 2005" as well as goods worth $35,950. The Petitioner acknowledged the 
deeds of dissolution related to the foreign parent entities and stated that a decision was made in 
December 2005 that S-G- would be transferred to K-C-. It indicated that although the settlemeni of 
goods and accounting had been completed between the foreign entities in 2005, the final transfer of 
shares was not completed and that "the shares were transferred in March 29th, 2007 after [K-C-] had 
paid $ 1 1,500 ( which they owed) to [S-G-], which was owned as a sole proprietorship." The 
Petitioner also stated that "on April 1st, 2013 [S-G-] was taken over by [K~C-]." 
The Petitioner also explained that S-G- and K-C- had been run as sole proprietorships after the 
December 2005 deeds of dissolution were executed. The Petitioner provided a letter from counsel 
based in Indian stating that "with consent of all outgoing partners ... one partner and/or surviving 
partner may continue the business as a proprietary concern" and noted that '-'the parties are required 
to send intimation to assessing officer and other concerned authorizes [sic] within the prescribed 
period." _ 
_ In the.revocation decision, the Director concluded that the evidence did not demonstrate that either 
foreign parent had been reinstated by government authorities following their dissolution and 
concluded that this brought into question whether the foreign parent was active as of the date of the 
petition, or thereafter. In addition, the Director stated that the evidence did not reflect that S-G- had 
continued to do business following its apparent dissolution in 2005. The Director also emphasized 
that there was no evidence that when the apparent dissolution of S-G- took place that ownership and 
control of the Petitioner had been turned over to K-C-, which the Petitioner asserted continued as a 
sole proprietorship owned by the Beneficiary's wife after 2005._ 
On appeal, the Petitioner again points to the submitted legal opinion provided by counsel based in 
India which states that Indian partnerships can continue as sole proprietorships following their 
dissolution. The Petitioner submits asserted S-G- Indian tax returns from 2002 through 2013 and 
asserts that these demonstrate that it continued to act as a sole proprietorship during this ti_me. The 
Petitioner further states that its shares were previously held by S-G- from its incorporation in 2005 
until March 2007, but that later K-C- acted as a successor-in-interest, gaining ownership of the 
Petitioner after taking control of S-G-. 
B. Analysis 
As noted, to establish a "qualifying relationship," the Petitioner must show that the Beneficiary's 
foreign employer and the proposed U.S. employer are the same employer (a U.S. entity with a 
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foreign office) or related as a "parent and subsidiary" or as "affiliates." See § 203(b)(l)(C) of the 
Act; see also 8 C.F.R. § 204.50)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Matter of Church Scientology Int '/, 19 I&N Dec. 593 (Comm 'r 1988); Maller of Siemens Med. 
Sys .. Inc., 19 l&N Dec. 362 (Comm'r 1986); Maller of Hughes, 18 I&N Dec. 289 (Comm 'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Matter of Church Scientology Int 'l, 19 
l&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. In addition , a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary , and any other factor affecting control of the entity. See Matter of 
Siemens Med. Sys., Inc., 19 I&N Dec. at 365. 
First, the Petitioner has submitted inconsistent and insufficient evidence to establish its ownership. 
The Petitioner provided share certificates, a stock ledger, and meeting minutes dated in April 2007 
indicating the transfer of 200 Petitioner shares from S-G- to K-C-. As noted by the Director, the 
stock ledger indicates that the initial transfer of shares was from As Singh to S-G- in July 2005 for 
$10,000 consideration. However, the Petitioner does not explain the identity of , nor does it 
substantiate this initial transfer of shares with meeting minutes or other documentation, such as the 
company 's articles of incorporation . It also does not explain how shares could have been transferred 
for consideration from one party to another upon the company's initial incorporation . In fact, in 
apparent contradiction , the Petitioner stated that S-G- "transferred an amount of $20,500, for initial 
investment on June 18th 2005" as well as goods worth $35,950; however, this consideration is not 
reflected in the stock ledger. The Petitioner's articles of incorporation , bylaws, or other minutes of 
its shareholder meetings during this time would have been particularly probative as to establishing 
its ownership and control, including documentation of any consideration paid for the transfer or 
issuance of stock. 
In addition, these ambiguities and the lack of documentation leaves question as to the claimed 
transfer of Petitioner shares to K-C- in 2007. For instance, the stock ledger and the second share 
certificate issued in March 2007 indicate that 200 shares were transferred from S-G- to K-C- for 
$12,000 in consideration . However, the submitted minutes accompanying this asserted transaction 
indicate that the shares were transferred at "no par value;" while also stating that the transaction took 
place for $12,000 in consideration. Further, the Petitioner does not document this transfer and 
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payment of consideration with an amendment to its articles of incorporation or other such 
documentation substantiating an agreement by S-G- to sell 200 shares in March 2007 for $12,000 to 
K-C-. 
In fact, the Petitioner provided a deed of dissolution indicating that the Petitioner was transferred to 
K-C- in December 2005, leaving question as to why the asserted stock transfer to K-C- from S-G­
took place more than two years later. The Petitioner vaguely explains that this was due to the 
payment of a debt by K-C- to S-G- in the amount of $11,500; but again, it does not sufficiently 
document this payment or explain the relation of this payment to the claimed $12,000 in 
consideration paid by K-C- for 200 shares in the Petitioner reflected in the stock ledger. Given these 
noted discrepancies and lack of full disclosure of all relevant corporate documents, we are unable to 
determine the elements of ownership and control. The Petitioner must resolve discrepancies in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N 
Dec. 582, 591-92 (BIA 1988). 
In addition, there are several discrepancies and ambiguities with respect to K-C-'s asserted 
assumption of ownership of S-G-, a critical element to preserving common ownership between the 
Petitioner and the Beneficiary's asserted former foreign employer S-G-. The Petitioner provided a 
deed of dissolution indicating that S-G- was dissolved as an Indian partnership interest in December 
2005, including the Beneficiary "retiring" from S-G- as a partner and leaving the option for the 
entity to continue as a sole proprietorship directed by partner In addition, the K-C- deed 
of dissolution stated that all "assets," "liabilities," and "disputes" had been settled between the 
partners and that the Petitioner would be "given to [K-C-], owned by wife of the [the 
Beneficiary]." Similarly, a deed of dissolution specific to K-C-, also dated in December 2005, 
reflected that was retiring as a partner and leaving the option to the Beneficiary's wife 
to continue as a sole proprietorship. 
We acknowledge that the Petitioner submitted evidence indicating that S-G- and K-C- continued to 
operate as sole proprietorships after December 2005; however, the evidence includes little 
documentation to support that S-G- was subsumed by K-C-. In fact, the Petitioner provides Indian 
tax returns and from 2005 through 2014 indicating that both S-G- and K-C- operated as sole 
proprietorships directed by and respectively, and there is no indication that K­
C- exercised ownership and control over S-G- during this period. The Petitioner also provided little 
supporting documentation to demonstrate how K-C- absorbed S-G- beyond affidavits from Indian 
accountants dated in April 2013, approximately eight years after K-C- was shown to have taken 
control of S-G- in the 2005 deed of dissolution and approximately six years after K-C· was claimed 
to have purchased all of the Petitioner's shares in 2007. Further, in one of the affidavits the 
accountant states that "I issued certificate with regard to taking over all assets and liabilities of [S-G­
] by [K-C-] on [April 23, 2013]." However, the record does not include this purported certificate or 
any other documentation to substantiate S-G- taking over ownership of K-C-. 
Therefore, the purported takeover of S-G- by K-C- in 2013 appears questionable as the Petitioner 
also simultaneously asserted that S·G- and K-C- continued to operate as a sole proprietorships from 
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Matter of M-J- Inc 
2005 to 2013. If both S-G- and K-C- continued to operate as sole proprietorships and S-G- sold its 
ownership in the Petitioner to K-C- in either 2005 or 2007, as claimed, it no longer had common 
ownership with the Petitioner after this time and common ownership between the Petitioner and S­
G-, the Beneficiary's former foreign employer would not have been maintained. Furthermore, the 
Petitioner has not sufficiently established that one sole proprietorship can "take over" another 
pursuant to Indian law or sufficiently documented this purported transaction. In immigration 
proceedings, the law of a foreign country is a question of fact which must be proven if a petitioner 
relies on it to establish eligibility for an immigration benefit. Maller of Annang, 14 I&N Dec. 502 
(BIA 1973). The Petitioner's claim that S-G- became a "unit of' K-C- in 2013 has not been 
sufficiently documented and explained, nor has it demonstrated that common ownership survived 
between S-G- and the Petitioner when they were apparently unaffiliated entities for several years. 
In sum, the Petitioner has provided a complex array of inconsistencies relevant to demonstrating that 
common ownership was maintained between it and the Beneficiary's foreign employer S-G-. 
Further, as discussed, the Petitioner submitted discrepancies and insufficient evidence with respect to 
its ownership. As such, it did not establish that a qualifying relationship existed between the 
Petitioner and the Beneficiary's foreign employer. 
IV. FOREIGN EMPLOYMENT IN A MANAGERIAL CAPACITY 
The next issue we will address is whether the Petitioner established that the Beneficiary was 
employed in a managerial capacity prior to his entry into the United States on a nonimmigrant 
intracompany transferee visa in 2005. The Petitioner did not claim that the Beneficiary was 
employed in an executive capacity abroad; as such, the issue before us is whether he had been 
employed abroad in a managerial capacity. 
Because of the dispositive effect of the above findings of ineligibility; namely, our affirmation of the 
Director's conclusions with respect to the Beneficiary's asserted U.S. employment and the claimed 
qualifying relationship with the Beneficiary's former foreign employer, we will only briefly address 
the remaining issue pertaining to the Beneficiary's qualifying employment abroad. 
ln revoking the petition on this ground, the Director concluded that the Beneficiary's stated foreign 
duties, although lengthy, were vague and non-specific and did not provide sufficient insight into the 
managerial tasks the Beneficiary performed abroad on a daily basis. The Director also stated that the 
Beneficiary's duties mentioned his involvement in '•e-commerce," including implementing "internet 
access/accounts," but noted that the record included no evidence that the foreign employer had this 
online presence prior to 2005. In addition, the Director indicated that the Petitioner had not provided 
the names of all the members on the foreign employer's organizational chart. 
The Director also pointed to the Petitioner's previous Form 1-140 petitions and photographs 
submitted with them reflecting that the foreign employer "was a small front store, with three people 
at the counter." The Director determined that this evidence indicated that the foreign employer was 
a business that did not require a multinational manager. Further, the Director concluded that there 
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Matter of M-J- Inc 
were discrepancies between an organizational chart and payroll records provided in 2003 and the 
organizational chart provided in response the NOIR, including differing numbers of departments and 
differing names and asserted managers. Lastly, the Director emphasized the similarity of the 
Beneficiary's duties with that of his claimed managerial subordinates, stating that this left question 
as to whether he was employed in a managerial capacity. 
On appeal, the Petitioner asserts that any references to ecommerce and internet sites in the 
· Beneficiary's duties were only related to potential future endeavors, noting that such technology was 
not prevalent in India prior to 2005. With respect to the foreign organizational chart, the Petitioner 
states that it has submitted requested duties and qualifications for the Beneficiary's former foreign 
subordinates which United States Citizenship and Immigration Service (USCIS) "can very well 
verify from previous document~tions [sic] provided." The Petitioner claims that the Director 
misinterpreted photographs of the foreign employer and emphasizes that submitted invoices indicate 
its involvement with wholesalers and retailers. In addition, the Petitioner asserts that the foreign 
employer had 18 employees and three managers and states "if all the personal [sic] in the payroll are 
in managerial position, then who will work under their supervision." Finally, the Petitioner states 
that, contrary to the Director's conclusion, the duties of the Beneficiary are "completely different 
from the duties of the personals [sic]," or his subordinates. 
Upon review, we find that the Petitioner has not adequately addressed the Director's grounds for 
revocation on appeal. Whether or not the Beneficiary was involved in ecommerce activities during 
his foreign employment prior to 2005, the Petitioner does not sufficiently address on appeal the 
Director's conclusion that his foreign duties include few details. Further, the Petitioner submitted 
little supporting documentation to substantiate that the Beneficiary was primarily engaged in 
qualifying managerial duties abroad. For inst_ance, the Beneficiary's foreign duties do not describe, 
and the Petitioner did not document with supporting evidence, decisions he made to increase sales, 
sales goals he set, business strategies he formulated, decisions he made as to the feasibility of new 
products, sales budgets he approved, or legal issues he advised his subordinate marketing/sales 
manager on. Likewise, the Petitioner did not articulate general guidelines the Beneficiary issued, 
long term marketing policies he created, suggestions he gave for improving the work, financial 
decisions he made, banking authorities he dealt with, or other specific managerial level tasks he 
performed abroad prior to his entry into the United States in 2005. On appeal, the Petitioner 
provides no additional evidence to address these generic duties. 
Although we concur with the Petitioner that the Director appeared to overemphasize the size and 
type of the foreign employer's business based on photographs, the Petitioner also does not directly 
address the discrepancies noted by the Director between submitted foreign organizational charts and 
payroll records. Further, it is noteworthy that the Petitioner submits little supporting documentation 
to substantiate the Beneficiary's foreign organizational chart prior to his entry into the United States 
in 2005; for instance, submitting only three months of foreign payroll records' from 2003. The 
Petitioner only vaguely contends that "'if all the [individuals] in the payroll are in managerial 
position, then who will work under their supervision" and asserts that the Beneficiary's duties are 
"completely different from the duties of [his subordinates]." However, the Petitioner provides no 
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Matter of M-J- Inc 
additional evidence to substantiate that the Beneficiary has managerial or professional subordinates, 
it does not explain specifically how the Director acted in error, nor does it explain the differences in 
the duties of his claimed foreign subordinates and the Beneficiary. 
Based on our review of the Petitioner's supporting evidence, including the Beneficiary's job 
description and the foreign entity's organizational and management structures, we determine that the 
Petitioner has not adequately demonstrated that he was employed in a managerial position abroad 
where his duties primarily involved managing a staff ,of supervisory or professional 
employees. Therefore, we will not disturb the Director's conclusion with respect to this ground for 
revocation. 
V. WILLFUL MISREPRESENTATION 
In concluding that the Beneficiary willfully misrepresented a material fact, the Director stated that 
the Petitioner had attempted to portray itself as a multinational organization, but noted that the 
evidence indicated that it was wholly owned by the Beneficiary's spouse and that it did not have a 
qualifying relationship with the foreign employer at the time of the Beneficiary's entry into the 
United States in 2005. Further, the Director stated that the Petitioner and Beneficiary attempted to 
"circumvent the immigration laws" by portraying the Beneficiary as a multinational executive or 
manager when the record reflected that the company was a "small jewelry store" with few full-time 
employees. 
Section 212(a)(6)(C) of the Act, 8 U.S.C. § l 182(a)(6)(C), provides: 
Misrepresentation. - (i) In general. - Any alien who, by fraud or willfully 
misrepresenting a material fact, seeks to procure (or has sought to procure or has 
procured) a visa, other documentation, or admission into the United States or other 
benefit provided under this Act is inadmissible. 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that the 
beneficiary willfully make a material misstatement to a government official for the 'purpose of 
obtaining an immigration benefit to which one is not entitled. Malter of Kai Hing Hui, 15 l&N Dec. 
at 289-90. The term "willfully" means knowing and intentionally, as distinguished .from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy 
and Goodchild, 17 l&N Dec. 22, 28 (BIA 1979). To be considered material, the misrepresentation 
must be one which "tends to shut off a line of inquiry which is relevant to the alien's eligibility, and 
which might well have resulted in a proper determination that he be excluded." Matter of Ng, 
17 I&N Dec. 536, 53 7 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings, the officer must determine: l) that the petitioner or beneficiary made a false 
representation to an authorized official of the United States government; 2) that the 
misrepresentation was willfully made; and 3) that the fact misrepresented was material. See Matter 
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Mauer of M-.1- inc 
of M-, 6 J&N Dec. 149 (BIA 1954); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961); Matter ~f Kai Hing 
Hui, 15 l&N Dec. at 288. Here, the Director's finding of willful misrepresentation was not 
supported by an analysis of these factors; as such, _this finding will be withdrawn. 
VI. CONCLUSION 
The Director's conclusion that the_ Petitioner and Beneficiary willfully misrepresented material facts 
is withdrawn. However, the Petitioner has not established that: (I) the Beneficiary would be 
~mployed in the United States in a managerial capacity; (2) the Petitioner had a qualifying 
relationship with the Beneficiary's former foreign employer; and (3) the Beneficiary was employed 
in a managerial capacity abroad. Therefore, the revocation of the approved petition will not be 
disturbed. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-J- Inc, ID# 1625434 ( AAO Oct. 16, 2018) 
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