dismissed EB-1C Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATIER OF K-G-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 20, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which operates a restaurant, seeks to permanently employ the Beneficiary as its 
managing director and president 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)(1)(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, concluding that the evidence of record did 
not establish that the Beneficiary will be employed in the United States, and has been employed 
abroad, in a managerial or executive capacity. · 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
misinterpreting the nature of the Beneficiary's role with the petitioning company and its relation to 
the foreign parent company. 
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 
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 
Matter of K-G-, Inc. 
employer or to a subsidiary or affiliate thereof in a capacity that is managerial 
or executive. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.F.R. § 204.50)(3) states: 
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager 
must be accompanied by a statement from an authorized official of the 
petitioning United States employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside 
the United States for at least one year in a managerial or executive 
capacity by a firm or corporation, or other legal entity, or by an affiliate 
or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same 
employer or a subsidiary or affiliate of the firm or corporation, or other 
legal entity by which the alien was employed overseas, in the three years 
preceding entry as a nonimmigrant, the alien was employed by the entity 
abroad for at least one year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
least one year. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that: (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. § 110l(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
2 
Matter of K-G-, 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 (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 lOl(a)( 44)(C) of the Act. 
A. U.S. Employment in a Managerial or Executive Capacity 
The regulation at 8 C.P.R. § 204.5(j)(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. 
3 
Matter of K-G-, Inc. 
The Petitioner filed Form l'-140 on March 24, 2015. The Petitioner stated that the company "is 
engaged in establishing a chain of contemporary restaurants," but at the time of filing, it had only 
one restaurant. There is no evidence that the Petitioner has purchased additional restaurants. 
1. Duties 
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). 
The Petitioner stated: 
[The Beneficiary] will act in an executive capacity, responsible for directing all 
operations in the United States. As the President in an executive capacity, [the 
Beneficiary] will oversee a management team responsible for the day-to-day operations 
of the restaurant chain. He will also oversee all corporate activities such as finance, 
accounting, marketing, as well as negotiating contracts with suppliers and business 
partners .... 
[The Beneficiary] is responsible for all employment issues including hiring the company 
staff. . . . He developed the procedures for operating the restaurant and authorized the 
general manager to undertake the duties needed for day-to-day operations. 
In his own letter, the Beneficiary stated: 
[The Beneficiary] will serve as President and will be responsible for the set up and 
overall management of the restaurant chain in the United States .... 
As President, one of the first duties will be to hire a General Manager to run the daily 
operations of the restaurant. (The Beneficiary] will create the job duties of each key 
employee, including those of the General Manager. ... 
. . . [The Beneficiary] will manage the capital investment to ensure funds are used for 
appropriate expenses that will achieve the company's goals. For example, [the 
Beneficiary] will establish that procedures for purchasing food supplies and negotiating 
contracts with suppliers. He will also develop the marketing and advertising strategies 
for the first restaurant and the future restaurants in the chain, such as brand creation, 
traditional advertising models, social media advertising, and promotions. 
The Beneficiary stated that he "spends about 70% of [his] time managing the U.S. organization and 
about 30% of his time is dedicated to management of [the] parent company organization in Singapore." 
4 
Matter of K-G-, Inc. 
The Director issued a request for evidence (RFE), asking for a more specific job description showing 
individual tasks and the approximate time devoted to each. 
In response, the Petitioner stated that the Beneficiary would serve in an "executive and manager 
position" that meets each of the defined requirements for an executive capacity as well as a 
managerial capacity. This is a change from the Petitioner's initial assertions that the Beneficiary 
would serve specifically as an executive. 
The Petitioner submitted a longer job description, divided into four categories and signed by the 
Beneficiary. We have omitted several of the items listed under "Planning and Executive 
Administration" because they refer not to ongoing responsibilities, but to one-time decisions or 
actions that the Beneficiary has already taken, such as securing funding and purchasing and 
renaming the restaurant. 
1. Planning and Executive Administration (40% of Duties) 
• Provide leadership and vision to the organization with the development of 
long range and annual plans, namely to establish a chain of restaurants in the 
u.s .... 
o Execute and enter into legal agreements, contracts, and represent the 
company ... ; 
o Review feasibility for business based on financial reports and make 
executive decisions; 
o Authorize budgetary al1ocation and major financial expenditures; 
o Receive reports from management of industry status and seek potential 
expansion target for additional restaurants for chain operation .... 
2. HR management (25% of Duties) 
• Recruitment of all management personnel, determine pay level, allocate 
personnel expenditure budgets, determine shift managers for each division. 
• Decide on policy relating to promotion, training programs, vacations, 
recruitment and termination of employees; 
• Policy development including shift management and periodic reporting 
requirements of business units; 
• Employee relations; 
• Receive daily and periodic reports on restaurant operation from General 
Manager . . . and Manager ... on operation of the restaurant and based on 
recommendation, approve human resource allocation and budgetary 
allocations; 
• Receive weekly reports from Chief Chef ... on menu offerings and chefs on 
customer review of menu items, popular items, weekly chef specials and how 
they reflect on revenue; 
5 
Matter of K-G-, Inc. 
• Receive and approve purchases of supplies/inventory and dealing with 
vendors for various matters for restaurant operation; 
3. Project management (20% of Duties) 
• Review and authorize advertisements and promotions for the restaurant; 
• Receive regular periodic reports on ... revenue, operation, and projections for 
management decisions in expanding the business; 
• Develop guidance, policy, and issue directives to provide structural basis of 
the business that will be incorporated into business operation and duplicated 
in future restaurant chain openings. 
4. Financial management (15% of Duties) 
• Make executive decisions regarding investments and financial strategies; 
• Oversee preparation and approve annual budgets, regular variance statements 
and annual audits; 
• Coordinate with parent company's ... administration division and financial 
division in allocating financial resources for efficient operation and expansion 
of the U.S. business. ' 
The Director denied the petition, concluding that the Petitioner had not established that the 
Beneficiary would serve in a managerial 'Of executive capacity. The Director found that the job 
description consists of broad responsibilities rather than specific, identifiable tasks. The Director 
acknowledged the Petitioner's assertion that the Beneficiary is the highest-'ranking authority in the 
company, but concluded that the Petitioner had not shown that the Beneficiary's duties would be 
primarily managerial or executive. The Director also stated: "As the petitioner states the beneficiary 
will serve as both multinational manager and executive, the petitioner must show that the beneficiary 
meets the requirements for both." 
On appeal, the Petitioner states that the Beneficiary need only qualify as a manager or as an 
executive, but not both. The Petitioner effectively abandons the initial claim that the Beneficiary 
will be an executive, and focuses on the assertion that the Beneficiary will primarily be a function 
manager. The Petitioner states that the Beneficiary will not primarily serve as a personnel manager, 
and therefore the "entire line of inquiry is irrelevant to the matter at hand." Therefore, we need not 
explore that issue here. 
The Petitioner states: 
Beneficiary is a "functional manager" who is charged with the executive (as opposed 
to the legal, accounting, sales, etc.) function of expansion into the North American 
market. A mischaracterization of his role would be that Beneficiary is managing a 
restaurant ... because a general manager would generally manage each restaurant. 
A petitioner must establish eligibility at the time it files the petition, continuing through the 
adjudication of the petition. See 8 C.F.R. § 103.2(b)(l). When the Petitioner filed Form I-140, it 
owned one restaurant. The Petitioner maintains that one of the Beneficiary's major duties is to 
expand the business, but the record contains no evidence that the Beneficiary has taken any such 
6 
Matter of K-G-, Inc. 
steps since he began working in the United States in 2013. Instead, he has concentrated his efforts 
on the single restaurant, for instance by changing its name and personnel structure. 
Furthermore, the job descriptions furnished by the Petitioner, and signed by the Beneficiary, do not 
indicate that the Beneficiary has devoted, or will devote, the majority of his time to expansion­
related activities. Most of the activities specific to expansion were within the category of "Planning 
and Executive Administration," occupying 40% of his time, and that category was not limited to 
expansion. It also involved activities specific to the first (and so far only) restaurant, such as 
securing specific amounts of capital and purchasing the site. 
The definitions of executive and managerial capacity have two parts. First, the Petitioner must show 
that the beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 
940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). Second, the Petitioner must prove 
that the beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See, e.g., Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, Inc. v. INS, 940 F.2d 1533. 
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). Reciting the 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. The actual duties themselves will reveal the true nature of the 
employment. Id. Here, the Director found that the Beneficiary's job description lacked critical 
detail. The Petitioner has not addressed this finding on appeal, concentrating instead on staffing 
issues. The Petitioner quotes parts of the job description, but doing so does not address or overcome 
the Director's findings. Phrases such as "employee relations" and "provide leadership and vision" 
provide no useful specific information about how the Beneficiary goes about those tasks. 
Many of the Petitioner's specific claimed duties concern reviewing reports and other work product 
from unspecified subordinates. For example, the Petitioner asserts that the Beneficiary oversees th~ 
preparation of the budget and approves the purchase of inventory, but the Petitioner has not shown 
who actually prepares the budget or purchases the inventory. The job description contains several 
references to reports, but the only specific employee identified as preparing them is the chief chef. 
The Petitioner states that the Beneficiary reviews and authorizes promotional campaigns, but has not 
identified any employee responsible for those campaigns. The Petitioner has submitted a list of 
outside companies that, the Petitioner claims, provide some services to the Petitioner, including four 
companies listed under "Marketing" and two under "Advertisements," but the record does not 
contain any documentary evidence to support that claim even though the Director asked for such 
evidence in the RFE. 
A petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden of proof. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
7 
Matter of K-G-, Inc. 
Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" of an executive or managerial nature. Sections 101(A)(44)(A) 
and (B) of the Act, 8 U.S.C. § 1101(a)(44)(A) and (B). While the Beneficiary may exercise 
discretion over the Petitioner's day-to-day operations and possesses the requisite level of authority 
with respect to discretionary decision-making, the position description alone is insufficient to 
establish that his actual duties, as of the date of filing, would be primarily managerial or executive in 
nature. 
For the reasons discussed above, the Petitioner has not shown that the Beneficiary's intended duties 
are managerial or executive in nature. 
2. 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. 
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 control the work of other 
supervisory, professional, or managerial employees. 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." Section 
101(a)(44)(A)(iv) of the Act; 8 C.P.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.P.R. § 204.50)(2). 
The term "function manager" applies generally when a beneficiary's managerial role arises not from 
supervising or controlling the work of a subordinate staff but instead from responsibility for 
managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. 
The statute and regulations do not define the term "essential function." If a petitioner claims that a 
beneficiary will manage an essential function, that petitioner must clearly describe 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 
8 
Matter of K-G-, Inc. 
dedicated to managing the essential function. See 8 C.F.R. § 204.5(j)(5). In addition, a petitioner's 
description of a beneficiary's daily duties must demonstrate that the beneficiary will manage the 
function rather than perform the duties related to the function. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act, 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 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 ofthe 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." Id. 
On its Form 1-140, the Petitioner claimed to have 24 U.S. employees at the time of filing, but the 
Petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return, shows that the Petitioner had 
15 employees on its payroll as of March 12, 2015. The lower number is consistent with an employee 
list and the Petitioner's organizational chart: 
Director [the Beneficiary] 
I I 
General Manager 
I 
Chief Chef 
Chef3 5 Delivery Drivers Chef1 
I 
Chef2 
I 
Server 1 Server 2 Server 3 ·Dishwasher 
In the RFE, the Director requested job descriptions for the Beneficiary's subordinates and 
documentation of contract labor used. 
The Petitioner's response to the RFE included an employee list showing 16 employees: 
Title 
Manager 1 
Manager 2 [the Beneficiary] 
Kitchen Manager 
Chefs 1-3 
Chef4 
ChefS 
Hours per week 
40 
40 
60 
40 
25 
15 
9 
(b)(6)
Matter of K-G-, Inc. 
3 Drivers 
4 Servers 
Dishwasher 
40 
40 
40 
The Petitioner also submitted a different organizational chart, reproduced in part below. We have 
omitted a section relating to "Additional Restaurants," because it is entirely prospective and does not 
include any existing personnel: 
President/Managing Director [the Beneficiary] 
Restaurant Operation 
(Existing Restaurant) 
I 
General Manager 
I 
Admin. M r. (Vacant) 
Serving Operation 
Manager (Vacant) 
I 
4 Serving Staff 
Kitchen Operation 
I 
Chief Chef 
I 
3 Chefs 
I 
Assistant Cooks, Dish Washers 
Delivery Operation 
(1 Driver, Contractors) 
Support Division 
I 
Admin. & H.R. Mgr. 
I 
Accounting Dept. Mgr. 
The list is not entirely consistent with the organizational chart, and the Petiti<;mer did not submit job 
descriptions or documentation of contract labor. An unsubstantiated list of third-party service 
providers cannot suffice in this regard. 
The Petitioner's IRS Form 941 returns show significant fluctuations both in the number of 
employees and in the total wages paid per quarter: 
Quarter 
3, 2013 
4, 2013 
1,2014 
2,2014 
3,2014 
4,2014 
1,2015 
2,2015 
3,2015 
4,2015 
Employees 
21 
14 
22 
23 
13 
38 
15 
15 
14 
13 
Total wages paid 
$39,279.44 
60,840.14 
84,159.76 
80,237.38 
73,919.36 
67,136.72 
90,495.40 
95,902.25 
119,056.81 
138,875.53 
10 
Matter of K-G-, Inc. 
The quarterly tax returns indicate that, near the petition's filing date, the Petitioner reduced the size 
of the staff while also increasing total· wages paid. This is consistent with the consolidation of 
several part-time positions into a smaller number of full-time positions. But the figures on the most 
recent quarterly returns do not support the Petitioner's claim to have 16 employees at the time of the 
RFE response. Instead, they show a decline in staffing after the filing date. The Petitioner did not 
account for the discrepancy between the quarterly returns and the most recent organizational chart. 
In the denial notice, the Director found that the Petitioner had not submitted job descriptions for the 
Beneficiary's subordinates to show how they would relieve the Beneficiary from primarily 
performing operational or administrative functions. The Director also found that the Petitioner had 
not submitted requested information regarding contractors and employee duties. The Director also 
found that the Petitioner had not established that the Beneficiary's subordinates qualify as 
professionals. 
We have already discussed some issues relating to staffing, such as the lack of information to show 
that specific employees relieve the Beneficiary from performing specific non-managerial functions. 
The Director requested job descriptions for the Beneficiary's U.S. subordinates, but the Petitioner 
did not include that information in its response to the RFE. This omission is, by itself, grounds for 
denial of the petition under 8 C.F.R. § 103.2(b)(14). To assert that the Beneficiary reviews reports 
and budgets, without showing where the reports and budgets originate, presents at best an 
incomplete picture of the Beneficiary's role in the company. 
On appeal, as noted above, the Petitioner asserts that the Director erred by considering the 
Beneficiary's position in the context of a personnel manager instead of a function manager. The 
Petitioner states that the Beneficiary ''primarily . . . manages the essential function of market 
development involving expansion of a chain of restaurants in the Americas, a role which reasonably 
requires him to rely on services from the foreign staff whose duties directly support[] the U.S. 
subsidiary." 
To support the above point, the Petitioner cites Matter of Z-A-, Inc., Adopted Decision 2016-02 
(AAO Apr. 14, 2016), in which we stated: 
Finally, when staffing levels are considered in determining whether an individual will 
act as a manager, we must also take into account relevant evidence in the record 
concerning the reasonable needs of the organization as a whole, including any related 
entities within the "qualifying organization," giving consideration to the 
organization's overall purpose and stage of develop11,1ent. See section 101(a)(44)(C) 
of the Act. Given that Congress created this visa classification to "eliminate 
problems ... faced by American companies having offices abroad in transferring key 
personnel freely within the organization," it is reasonable for a petitioner to assert that 
the organizational needs include those of its related foreign components. See 
generally H.R. Rep. No. 91-851, § 1(b), at 5 (1970), as reprinted in 1970 
U.S.C.C.A.N. 2750, 2754. To support this type of claim, the petitioner bears the 
burden of submitting probative evidence to establish the reasonable staffing needs of 
11 
(b)(6)
Matter of K-G-, Inc. 
the organization and how those needs are material to whether the beneficiary will act 
as a manager. An adjudicating officer in turn must assess all relevant evidence in the 
record concerning the beneficiary's position within the wider "qualifying 
organization" in determining whether the petitioner has satisfied that burden. 
Id. at 5 (footnote omitted). The Petitioner states, on appeal: 
Staff members within the parent company's office in Malaysia exclusively support 
Beneficiary's work in the United States. The record shows, for example, Beneficiary 
"coordinate[s] the parent company's administration division and financial division 
regarding the expansions." [Petitioner Support Letter, dated March 1, 2016, 
submitted with the RFE response filing, p.2] .... 
The Petitioner misquotes the earlier letter. The passage in question reads: "Coordinate with parent 
company's administration division and financial division in allocating financial 
resources for efficient operation and expansion of the U.S. business." This does not indicate that 
plays an active role in the operation of the petitioning U.S. employer, or that its 
employees perform administrative or financial tasks on the Petitioner's behalf, let alone that they 
"exclusively support Beneficiary's work in the United States" as the Petitioner contends. It shows 
only that the Petitioner relies on infusions of foreign capital from the parent company. For instance, 
provided the funds for the Petitioner to purchase its restaurant. 
The beneficiary in Z-A- was responsible for overseeing the foreign parent company's expansion into 
the United States, to "manage the implementation of all policies and strategies and establish goals 
pertaining to the import, sales, and marketing of the parent company's specialized products into the 
market." Id. at 5-6. In the case now before us, the Petitioner does not import, sell, or market the 
parent company's products in the Uni.ted States. The record does not show that the Petitioner and its 
foreign parent company engage in similar or complementary business endeavors, 
such that they 
comprise, in effect, a single organization. The Petitioner has not shown that the parent company's 
staff performs any of the day-to-day functions involved in operating the Petitioner's restaurant. 
Discussion of the company's possible role in facilitating the Petitioner's expansion is entirely 
hypothetical, because there is no evidence that the Petitioner had begun that expansion at the time it 
filed the petition. The Petitioner has not submitted evidence to establish any relevant connection 
between the Beneficiary's continuing work on behalf of the foreign company and his role with the 
petitioning U.S. employer. 
Based on the deficiencies discussed above, the Petitioner ha~ not established that the Beneficiary 
will be employed in a managerial or executive capacity in the United States. 
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.P.R. § 204.5(j)(3)(i)(B) requires the Petitioner to submit a 
statement from an authorized official of the petitioning United States employer which demonstrates 
12 
(b)(6)
Matter of K-G-, Inc. 
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. Duties 
The Petitioner identified the Beneficiary's foreign employer as 
described the Beneficiary's duties abroad as follows: 
[The Beneficiary] developed the company's strategic plans for operating the two 
companies it manages, and Because these 
two companies sell their products glohally, [the Beneficiary] was responsible for 
creating international logistics processes and procedures to manage the companies' 
shipments while complying with all international customs regulations. 
[The Beneficiary] was also responsible for managing the companies' financial 
performance. He set the company's financial goals and established the policies to 
achieve them. He then supervised his management team to ensure these goals were 
being achieved .... 
As an executive manager for [the Beneficiary] was responsible for 
the direct management and supervision of five managers. He established their job 
duties, assessed their performance, and received regular reports from them about the 
company's operations. Because ... the nature of business was to 
manage two large companies, [the Beneficiary] was ultimately responsible for all of 
the managers and employees of and Both companies had 
management teams on site, however, [the Beneficiary] was the executive manager 
who oversaw each company. 
and 
does not own or Rather, individual employees of 
own or co-own those two companies. Any management services that 
provides to those companies would therefore appear to be on a contract basis. (The record 
does not contain copies of those contracts, but bank statements show deposits 
originating from the two companies.) Because neither nor are affiliates or 
subsidiaries of the business activities and staffing of those companies are not 
relevant to this proceeding. Their employees are not the Beneficiary's de facto subordinates. 
A job description on letterhead showed the following duties for the Beneficiary, 
each of which occupies "not more than 20% of his time" (note: errors in the original text have not 
been corrected): 
As Chief Executive his responsibilities is to expandthe company's business portfoli'o 
I new business investment and explore future business trend and steer the company to 
new height. 
13 
(b)(6)
Matter of K-G-, Inc. 
As Chief Executive his responsibilities is to make sure the company is run in an 
efficient I profitable and law abiding company. 
As Chief Executive, his , responsibilities are to balance his responsibilities to the 
company and the shareholder. 
As Chief Executive, he is also in charge of the Purchasing Department. ... 
Major decision I accomplishment made by the Chief Executive. 
a) Export Malaysian I Indonesian Palm oil to Uzbekistan I Ukraine I Russia market. 
Control an estimated 80% of Palm Oil requirement in Uzbekistan market. 
b) Export and design Malaysian made OEM car audio (CD/USB player) to 
Supply 90% of car audio requirement to 
c) To export palm oil by tanker to Russia. (Now under discussion) 
d) Make decision on buying of commodities at the right price. 
e) Make decision to sell commodities at the right price and timing for profit. 
f) Appoint custom broker I shipping agent to handle the export of Palm oil. 
g) Explore and planning to attract new customer for the Palm Oil commodities. 
h) Planning and design of new car audio for 
The description quoted above consists largely of vague, general responsibilities rather than specific, 
identifiable tasks. 
The record contains no evidence that exports palm oil or car audio equipment. It 
appears, instead, that exports palm oil, while sells car audio equipment. 
Any transactions that the Beneficiary negotiated on behalf of those companies would be separate 
from his work as general director of and are not 
affiliated with the petitioning U.S. company, and therefore any management work that the 
Beneficiary performed for those companies would not qualify him as a multinational manager or 
executive. 
In the RFE, the Director asked for more details about the Beneficiary's claimed duties at 
In response, a director of listed several duties with the 
approximate percentage of time devoted to each: 
Executive Decisions ( 40%) 
• Make executive decisions of business operation and make major decisions 
including approving new business operation ... ; approve organization structure; 
approve business structure; approve and authorize budgetary expenditures; 
oversee and approve major subsidiary expenditures and affiliate business 
14 
(b)(6)
Matter of K-G-, Inc. 
direction for [the Petitioner], (Singapore), 
(Singapore) and the parent company l 
Malaysia) .... 
Executive Oversight and Business Unit Management (20%) 
• Allocate parent company's business units in relation to subsidiary and affiliate 
, companies where Acts as the controlling entity .... 
Formulate Strategy and Policy (10%) 
• Provide executive guidance in board of directors meeting and ratify proposals for 
strategic vision for the company to grow into new business industry (restaurant 
chains), new international geographic regions (Singapore, Malaysia, U.S., 
Ukraine, etc.), expand into categories for import and export and capture 
geographic market (i.e. palm oil 
market, export Malaysian and Indonesian palm 
oil to Eastern European countries such as Uzbekistan, Ukraine, and Russia). 
Executive Policy and Guidance (10%) 
• Receive periodic reports from management and business units of current status on 
business and financial operations and issue policy, guideline, management 
directives on resource allocation and business focus. 
• Set operational goals appropriate for each department's activities. 
Management(20%) 
• Manage purchasing department by establishing protocols and policy in 
maintaining key inventory levels, logistics, and make final decisions on 
procurement contracts after reviewing relevant reports from management and 
business units. 
The Director denied the petition, stating that the Beneficiary's job description showed a high level of 
authority but did not show what, exactly, the Beneficiary did on a daily basis with the foreign 
company. The Director found that the Petitioner had not established that the Beneficiary's tasks 
with were prima~ily those of a manager or executive. 
On appeal, the Petitioner repeats the assertion that the Beneficiary made major business · decisions for 
and As explained above, those companies have no qualifying 
relationship with the Petitioner; the decisions described affected his management of the unrelated 
companies, not The Beneficiary also made decisions relating to the petitioning U.S. 
entity, such as deciding to purchase the restaurant and allocate the needed funds, but the Petitioner 
has not shown that these decisions, many of them one-time events, occupied the majority of the 
Beneficiary's time. The Petitioner has not provided sufficient information about the Beneficiary's 
duties as they relate to 
15 
(b)(6)
Matter of K-G-, Inc. 
2. Staffing 
The Petitioner initially submitted two organizational charts for Both charts showed 
the Beneficiary as managing director, and named the same four departments, but they identified 
different managers for many of those departments: 
Department Manager, chart 1 
Administrative 
Accounting 
Purchasing 
Logistics 
The Beneficiary · 
Manager, chart 2 
The organizational charts referred to all of the above positions as either managerial or executive. 
The Petitioner submitted descriptions showing the responsibilities of each department, but did not 
show how many subordinates, if any, worked in each department. From February 1, 2013, to March 
31, 2014, the company paid a total ofRM102,643 in "Salaries, bonuses and allowances," an average 
of RM7332.64 per month. The Beneficiary's pay statements show that he received RM7000 per 
month in 2013, more than 95% of the company's total salary expenses at the time. Therefore, it does 
not appear that had a significant number of employees on payroll. 
The Petitioner submitted descriptions showing that each department performs operational tasks that 
are not managerial or executive, such as filing correspondence, processing orders, tracking 
inventory, preparing invoices, and recording financial transactions. Because the Petitioner did not 
document any subordinate staff in any department, the Petitioner's initial submission did not show 
that anyone other than the department heads performed these non-managerial and non-executive 
tasks. 
In the RFE, the Director asked for job descriptions for the Beneficiary's subordinate managers and 
supervisors, stating that what the Petitioner had previously submitted was insufficient. 
The Petitioner's response included a third version of organizational chart: 
Chief Executive Officer/Managing Director [the Beneficiary] 
I 
Purchasing Dept. 
Director [the Beneficiary] 
I 
Purchase (Export/ 
Local Distribution) 
Mgr., 
Logistics Dept. 
I 
Marine/Air 
Import & Export 
Manager, 
16 
Director 
Accounting Dept. Admin. & H.R. Dept. 
I I 
Financial Analysis & Admin. Mgr. 
Business Acctg. 
Manager, 
(b)(6)
Matter of K-G-, Inc. 
The chart showed both the Beneficiary and filling two positions each. Like the 
previous charts, the latest version did not show any subordinate staff below the managers to perform 
the company's non-managerial operational and administrative tasks. 
In the denial notice, the Director stated that, although the various organizational charts show several 
managers subordinate to the Petitioner, the Petitioner did not show that the managers had any 
subordinates below them. The Director also found that the Petitio!ler did ,not show 
that those 
managers qualify as professionals; first-line supervision of non-professional employees does not 
qualify as managerial or executive. See 8 C.F.R. § 204.5G)(4)(i). The Director also found that the 
Petitioner did not show that had sufficient staff to relieve the Beneficiary from 
primarily performi~g non-qualifying tasks. 
On appeal, the Petitioner submits a list of six employees at 
• The Beneficiary, title not specified 
• purchasing manager 
• administration and logistics 
• 
• 
• 
accounting 
"accounting executive assisting 
owner of title at 
in accounting" 
not specified 
The Petitioner still has not shown that has, or had, more than six employees. The 
new list provides a job description for only one of those employees, 
Director and owner of 
financial [sic] in 
of Singapore and Management control of 
as signatory approval for all payment. 
Provide consultancy services to GLC (government link companies) through the 
to the Malaysia Northern Corridor I Aquaculture and Agriculture for investor. 
Involved in the implementation for the in 
the Agriculture sector. Provide investor linkage to the state government. 
The Petitioner has not submitted any information or evidence to show how the second quoted 
paragraph relates to There is no other information in the record indicating that 
is involved in aquaculture, agriculture, or government consulting. The reference to 
"the is unclear; is not a law firm. Any activities that 
undertakes as a director of are beyond the scope of this petition, and do not establish a 
managerial capacity at 
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 
17 
(b)(6)
Matter of K-G-, Inc. 
whether its operations are substantial enough to support a manager."1 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). 
The Petitioner has not established that the Beneficiary's subordinates at were 
managers, supervisors, or professionals. The Petitioner has not established the nature of their duties, 
or even the exact nature of business; most of the latter discussion concerns 
management of other companies that as a company, does not own or control. The 
Beneficiary may have held a high .. ranking title at that company, but the Petitioner has not shown that 
the Beneficiary primarily performed managerial or 
executive duties for that company (as opposed to 
non-qualifying duties for or managerial duties for outside companies). 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary was employed in a managerial or executive capacity abroad. 
III. 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, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-G~, Inc., ID# 118452 (AAO Dec. 20, 2016) 
1 
Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316(9th Cir. 2006) (citing with approval 
Republic of 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). 
18