dismissed EB-1C Case: Restaurant

(b)(6)
DATE: APR 2 0 2015 OFFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non- precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:Uwww. uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
ctou, 
� Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation that operates as a restaurant. It seeks to employ the beneficiary in 
the United States as its controller. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary's 
proposed position in the United States and her former position with the foreign parent entity can be deemed as 
employment in a qualifying managerial or executive capacity. 
I. The Law 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. --Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. --An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(1)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
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(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), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
II. Factual Background and Procedural History 
The record shows that the petition was filed on July 23, 2013. The petition was accompanied by a supporting 
statement, dated July 16, 2013, in which the petitioner listed 22 job duties and responsibilities for which the 
beneficiary would be responsible in her proposed position as controller of the U.S. entity. The petitioner 
further stated that the beneficiary's employment abroad involved direct oversight of "high-level" managerial 
employees and indirect supervision of more than 50 other employees. The petitioner also provided 
organizational charts depicting the beneficiary's respective positions with both entities. In addition, the 
petitioner provided evidence in the form of tax, banking, and business documents. 
On April 14, 2014, the director issued a request for evidence (RFE), informing the petitioner that the record 
lacked sufficient evidence to establish that the beneficiary's former and proposed positions with the foreign 
and petitioning entities, respectively, fit the criteria for employment within a qualifying managerial or 
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executive capacity. Accordingly, the petitioner was instructed to provide a definitive statement pertaining to 
the beneficiary's former and proposed positions listing the beneficiary's respective job duties with each entity 
and the percentage of time allocated to each of her assigned tasks. The petitioner was also asked to provide 
the names, job titles, brief job descriptions, and educational credentials of the beneficiary's foreign and U.S. 
subordinate staff. 
The petitioner's response included a statement, dated May 28, 2014, which included general information 
about the beneficiary's claimed employment with the foreign entity. The signature line on the letter indicated 
that it was authored by the foreign entity's board chairman. The petitioner also provided the foreign entity's 
organizational chart and a separate document listing the company's employees, job titles, job descriptions, 
educational requirements of each position, and the respective salary of each employee. The petitioner also 
provided descript ion of the beneficiary's proposed position. The job description consisted of the sam e 22 
elements that were provided in the original job description and was supplemented with a time allocation 
indicating the percentage of time the beneficiary planned to spend carrying out of the 22 assigned duties and 
responsibilities. The petitioner also provided its updated organizational chart and separate list of each 
employee's current position, educational credentials, and salary. In addition, the petitioner provided a 
photocopy of an unsigned letter, dated March 11, 2014, from the company president, who referenced the 
petitioner's "new restaurant site" at a business development center. 
Mter reviewing the petitioner's submissions, the director determined that the petitioner failed to establish 
eligibility and therefore issued a decision dated July 9, 2014, denying the petition. The director noted that the 
petitioner failed to establish that the beneficiary had hiring and firing authority over subordinates. The 
director also pointed out that the beneficiary's job description lacked the requested time aUocations indicating 
what percentage of time was spent on the duties assigned to her in her position as vice general manager. With 
regard to the beneficiary's proposed employment, the director pointed to anomalies in the petitioner's 
originally submitted organizational chart, where two of the company's employees - the beneficiary and the 
company's president -were depicted as assuming subordinate roles within the organization in addition to the 
managerial and executive roles they assumed as the two top-most employees in the petitioner's organizational 
hierarchy. The director focused on the petitioner's organizational hierarchy at the time of filing, questioning 
how the petitioner would have been able to relieve the beneficiary from having to allocate her time primarily 
to the company's daily operational tasks given that the petitioner's organizational chart showed the 
beneficiary as occupying the position of business expansion and marketing manager, a position depicted as 
being one of the beneficiary's direct subordinates, in addition to the beneficiary's proffered position as the 
company's controller. 
On appeal, the petitioner submits an appellate brief, disputing the director's findings with regard to the 
beneficiary's former and proposed employment. The petitioner contends that both positions fit the statutory 
definition of managerial capacity and addresses each position in separate portions of the appellate brief. 
Upon review, and for the reasons stated below, we find that the petitioner has failed to establish that the 
beneficiary's proposed position with the petitioning entity or her former positon abroad with the petitioner's parent 
entity can be classified as positions that fall within the statutory parameters of managerial or executive capacity. 
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III. Issues on Appeal 
As indicated above, the two primary issues to be addressed in this proceeding are whether the petitioner 
provided sufficient evidence to establish that the beneficiary was employed abroad and would be employed 
by the petitioning entity in a qualifying managerial or executive capacity. 
A Qualifying Employment in the United States 
First, we will address the beneficiary's proposed position with the petitioning entity. In general, when 
examining the executive or managerial capacity of a given position, we review the totality of the record, 
starting first with the description of the beneficiary's proposed job duties with the petitioning entity. See 
8 C.F.R. § 204.5(j)(5). Published case law has determined that the duties themselves will reveal the true 
nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990). We then consider the beneficiary's job description in the context of 
the petitioner's. organizational structure, the duties of the beneficiary's subordinates, and any other relevant 
factors that may contribute to a comprehensive understanding of the beneficiary's actual duties and role within 
the petitioning entity. 
Turning first to the beneficiary's job description, we note that a number of the beneficiary's assigned job 
duties are not substantiated by the evidence of record with regard to the petitioner's staffing at the time the 
petition was filed. First, with regard to No. 4 of the job description - supervising accounting, operation and 
marketing staff and coordinating financial and marketing planning and record - to which the petitioner 
allocated 32% of the beneficiary's time, the petitioner's original organizational chart identifies the beneficiary 
and the company president as the the business expansion and marketing manager and the operations 
manager, respectively, thus indicating that a portion of the beneficiary's time would be spent managing herself 
and an employee who is also depicted as the beneficiary's superior in another job capacity. Despite the 
petitioner's claim in its June 12, 2014 RFE response statement, which indicates that the position of busifless 
expansion and marketing manager was actually vacant and that the petitioner erroneously depicted the 
beneficiary as filling that position, the fact remains that the petitioner failed to establish who was actually 
performing the underlying job duties assigned to the vacant position at the time of filing; nor did the petitioner 
explain how the vacancy would have affected the beneficiary's job duties at the time of filing. If the 
beneficiary's job would involve overseeing three managerial positions, one of which was vacant at the time 
the petition was filed, we cannot rule out the possibility that the beneficiary would have had to perform the 
underlying tasks of that position until someone was hired to fill the vacancy. 
Further, while it is plausible that the beneficiary's superior may have to do double duty in carrying out the job 
duties of two separate positions due to the needs of the petitioner, it is unreasonable to assert that the 
individual who generally assumes the top-most role as the petitioner's president, would assume a role of the 
beneficiary's subordinate, regardless of the operation manager's job duties and placement within the 
petitioner's organizational hierarchy. The petitioner must submit evidence that substantiates the beneficiary's 
duties and the duties of her subordinates such that the job duties correspond to the employees' respective 
placements in an organization's structural hierarchy; artificial tiers of subordinate employees and inflated job 
titles are not probative and will not establish that an organization is sufficiently complex to support an 
executive or manager position. An individual whose primary duties are those of a first-line supervisor will 
not be considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties 
unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
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In addition, the petitioner's original organizational chart depicts an administration manager as the direct 
superior who would oversee the work of two head chefs and a dining room manager. As the petitioner has 
not provided job descriptions for any employees other than the beneficiary, it is unclear why an 
administration manager, whose tasks are likely to be focused on office tasks, would be charged with 
overseeing three managerial restaurant employees. Again, given the petitioner's failure to provide job 
descriptions pertaining to the employees of the petitioning entity, the record lacks sufficient supporting 
evidence to justify the organizational hierarchy was illustrated in the petitioner's organizational chart. 
Further, while the beneficiary's job description indicates that the beneficiary would allocate 5% of her time to 
directing the creation of a system for integrating daily activities, 3% to directing the preparation of daily 
revenue reports and cash flow, and 2% to reviewing, analyzing, and presenting financial and account reports, 
the petition er failed to establish who actually assumes the underlying responsibilities of creating the system or 
preparing the various types of reports that the beneficiary would examine. Despite the director's express RFE 
instruction asking the petitioner to provide summaries of employee job duties, the petitioner failed to provide 
the requested information, which could have provided valuable insight as to how the petitioning entity 
functions and who performs the various operational tasks, which the beneficiary is responsible for overseeing. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.P.R. § 103.2(b)(14). Furthermore, going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Corum. 1998) (citing Matter of Treasure Craft of California, 14 l&N Dec. 190 (Reg. Comm. 
1972)). 
The petitioner also indicated that 5% of the beneficiary's time would be allocated to establishing employee 
performance standards and evaluating employee performances, 5% would be allocated to evaluating, 
promoting, and firing supervisory workers, and .5% would be allocated to signing final discipline notices. All 
three job duties require the beneficiary to oversee a subordinate staff. However, given the unanswered 
questions and anomalies regarding the two managerial positions that are depicted as being directly 
subordinate to the beneficiary, it is unclear how the beneficiary would execute these personnel management 
tasks or to whom specifically the beneficiary's oversight would apply. In other words, given that the business 
expansion and marketing manager position was vacant and the time of filing and in light of the claim that the 
company's top-most executive would carry out the tasks of the operations manager, it is unclear which 
employees the beneficiary would actually oversee. The staffing compositi on that was present at the time of 
filing indicates that the only top-tier management position that may have been filled by a true subordinate 
employee was that of accounting manager. 1 The record does not establish that the petitioner was equipped 
with the management positions that were described as being within the beneficiary's immediate managerial 
purview. See id. A company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
Section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). Instead, the beneficiary's duties must be the 
critical factor. However, if USCIS fails to believe the facts stated in the petition are true, then that assertion 
may be rejected. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Systronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). 
1 The individual named as the petitioner's accounting manager was not included in the petitioner's quarterly wage report 
for the 2013 second quarter. The petitioner did not provide a quarterly wage report for the 2013 third quarter, which may 
have established when assumed the position of accounting manager. 
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In addition, the petitioner did not clarify what is meant by "setting up and adjusting the management 
structure" or "adding a marketing team," which would cumulatively comprise another 5% of the beneficiary's 
time. Based on the information offered via the petitioner's organizational chart, the petitioner claimed to have 
had a management structure in place at the time the petition was filed. It is therefore unclear what types of 
adjustments the beneficiary would make to that structure. Further, while it is plausible that the beneficiary 
would be charged with filling the vacancy in the marketing department, the underlying question is who would 
perform the job duties of the business expansion and marketing manager in the interim, while the position 
remains vacant. A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a 
future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 
14 I&N Dec. 45, 49 (Comm. 1971). Given the precedent decision, it is therefore reasonable to expect the 
petitioner to establish that it was able to relieve the beneficiary from having to primarily perform non­
qualifying tasks based on the staffing composition that existed at the time of filing rather than a more 
developed personnel structure that may have come to fruition at a later date, as indicated in the more recently 
submitted organizational chart, which reflects the new employee acquired after the petition was filed. Thus, 
focusing on the correct organizational chart, we find that the petitioner's claim that the beneficiary would 
allocate 5% of her time to evaluating marketing and operation managers' proposals is inconsistent with the 
staffing that existed at the time of filing. As previously pointed out, the petitioner did not employ a marketing 
manager at the time of filing. Further, while the petitioner indicates that the company president fi11ed, and 
continues to fill, the operations manager position, the fact remains that this individual would not be the 
beneficiary's true subordinate, whose work the beneficiary could evaluate and over whom the beneficiary 
could have hiring and firing authority, despite of the petitioner's creation of an organizational chart that 
depicts the operations manager at a lower tier within the petitioner's organizational hierarchy. 
Lastly, the petitioner indicated that 5% of the beneficiary's time would be allocated to holding management 
meetings to review and make decisions regarding business contracts and another 3% of her time would be 
allocated to holding weekly management meetings. The petitioner failed to make a valid distinction between 
these two sets of job duties, both of which seemingly convey the same basic point - that the beneficiary 
would meet with subordinate managers. Moreover, given the questions arising from one vacant managerial 
position and one managerial position assumed by an employee who is technically the beneficiary's superior, 
the petitioner's staffing composition would leave the beneficiary with a management team comprised of a 
single employee - the accounting manager. As the petitioner failed to provide job descriptions for the 
beneficiary's subordinates, we are unable to properly assess the validity of the petitioner's claims that 
specifically pertain to the time the beneficiary would spend meeting with subordinate managers and, more 
broadly, with regard to the beneficiary's oversight of managerial employees 
Whj}e the beneficiary is not statutorily required to allocate 100% of her time to managerial-or executive-level 
tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would perform are only 
incidental to the proposed position. An employee who "primarily" performs the tasks necessary to produce a 
product or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593, 604 (Comm. 1988). Whether the beneficiary is a managerial or executive employee turns on 
whether the petitioner has sustained its burden of proving that his duties are "primarily" managerial or 
executive. See sections 101(a)(44)(A) and (B) of the Act. 
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On appeal, the petitioner objects to the director's finding that it lacks organizational complexity, referring to 
the organizational chart where the beneficiary is depicted at the top of the hierarchy overseeing other 
managerial employees with subordinates of their own. However, as discussed above, the petitioner has not 
provided sufficient evidence to corroborate the information put forth either in its organizational chart or in the 
beneficiary's job description. As previously stated, the unsupported assertions that the petitioner puts forth 
via job descriptions or an organizational chart are not sufficient to meet the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. at 165. While the petitioner asserts that the instant petition 
warrants approval, the discussion above points to considerable evidentiary deficiencies. We find that the 
petitioner did not adequately support the claims it put forth with regard to the beneficiary's proposed 
employment and thus failed to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
B. Qualifying Employment Abroad 
Next, turning to the beneficiary's former employment with the foreign entity, we conduct a similar 
comprehensive analysis of the record, starting with a review of the job duties the beneficiary performed 
during her employment abroad. 
In its initial July 16, 2013 supporting statement, the petitioner stated that the beneficiary had been employed 
by the Chinese parent entity in the position of assistant general manager. The petitioner stated that the 
beneficiary originally worked for the parent entity from December 2007 to December 2010 and subsequently 
resumed her position with that entity in December 2011. The petitioner stated that, in addition to "local 
duties," the beneficiary was "entrusted with exploring a wider range of opportunities, coalition, or investment 
for the company." The petitioner also provided the foreign entity's organizational chart showing the 
beneficiary overseeing five managerial positions - catering manager, kitchen. manager, manager of room 
affairs, finance manager, and manager of the comprehensive department- and depicting her as subordinate to 
the general manager. 
Given the overall lack of information about the beneficiary's job duties, the director instructed the petitioner 
to provide a supplemental job description in response to the RFE. Specifically, the director asked the 
petitioner to provide a statement from an authorized official of the foreign entity specifically itemizing the 
beneficiary's daily tasks and the time allocated to each task in the form of a percentage breakdown. The 
petitioner was also instructed to list and provide brief job descriptions for the employees within the 
beneficiary's immediate division, department or team. In addition, the director asked the petitioner to provide 
the foreign entity's organizational chart showing the overall structure and staffing level during the time of the 
beneficiary's employment abroad. 
Although the petitioner's response contained a letter, dated May 28, 2014, on the foreign entity's letterhead, 
with an indication that it was signed by the foreign entity's chairman of the board, the signature was written in 
Chinese language characters and was not translated into English; nor did the letter in any way identify the 
signing party by name such that would enable USCIS to verify whether the signing party was actually the 
chairman of the board, as claimed. Thus, while the letter was seemingly intended for the purpose of 
corroborating the claim that the beneficiary was employed by the foreign entity as claimed, the letter's 
probative value is limited given the lack of sufficient evidence to establish that the individual who made the 
factual assertions in the letter had the first-had knowledge and authority to make those assertions. 
Furthermore, the letter contains only broad references to the beneficiary's employment abroad and fails to cite 
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the actual dates of the alleged employment. For this additional reason the letter has minimal probative value 
in helping to ascertain whether the beneficiary was employed abroad in a qualifying capacity during the time 
period that was previously claimed in the original supporting statement. 
In addition, despite the relatively complex organizational hierarchy that was depicted in both of the foreign 
entity's organizational charts, the charts are inconsistent in the information that they provide. Namely, while 
the original chart indicates that the beneficiary had five managerial subordinates, the chart submitted in 
response to the RFE lists eight subordinate managerial positions under the beneficiary's managerial purview. 
In comparing the two charts, the original chart did not include an external liaison manager, a purchasing 
manager, or a security manager among the beneficiary's subordinates. Further, the hierarchy depicted in the 
chart that was provided in the RFE response is not consistent with the job duties listed as those of the catering 
department manager. Namely, while the chart shows the catering department manager as the beneficiary's 
direct subordinate, the job description that pertains to the catering manager indicates that this position was 
charged with "carrying out all work tasks and work instructions assigned by the [g]eneral [ m ]anager" as well 
as attending manager meetings chaired by the company's general manager, thus indicating that the general 
manager, rather than the beneficiary, is the catering manager's superior. 
We further note that the petitioner failed to comply with the specific instructions in the RFE, where the 
director asked the petitioner to list the beneficiary's job duties specifically and to indicate how much time the 
beneficiary allocated to each of her former tasks. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). The information is 
critical to determining how the beneficiary's time was disturbed among her qualifying and non-qualifying job 
duties. 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. 
Lastly, even if the petitioner provided sufficient evidence to establish that the beneficiary's positon abroad 
consisted primarily of qualifying tasks, the record does not establish that the beneficiary was employed 
abroad for the requisite one year within the three years prior to the date this petition was filed. Based on the 
applicable date of filing- July 23, 2013 - the petitioner must establish that the beneficiary had at least one 
year of qualifying employment between July 23, 2010 and the Form I-140 filing date. Given that the 
petitioner claimed that the beneficiary worked for an unrelated company abroad from December 2010 to 
December 2011, the petitioner is required to establish that the beneficiary's one year of qualifying 
employment occurred sometime between July 23, 2010 and December 2010 and between December 2011 and 
July 23, 2013. Based on the dates stamped on the beneficiary's Form 1-94, Departure Record, the beneficiary 
came to the United States in January 30, 2010 as a B-1 visitor. The same document indicates that the 
beneficiary was authorized to remain in the United States until July 29, 2013. Although the record is unclear 
as to whether the beneficiary departed the United States subsequent to her January 2010 entry, the instant 
petition indicates that the the beneficiary's last arrival to the United States was on January 30, 2013. The 
record also reflects that the beneficiary was issued a United States visa on June 20, 2012. In addition, 
government records indicate that the beneficiary was present in the United States from January 30, 2013 to 
December 20, 2013, and from July 2, 2012 to December 15, 2012. Any time the beneficiary spent in the 
United States within the three years prior to filing the instant petition would be deemed as interruptive of the 
beneficiary's requisite one-year period of employment abroad. As the petitioner has failed to provide 
sufficient evidence to establish that the beneficiary resided and was employed by the qualifying foreign entity 
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for a cumulative period of one year, it cannot be concluded that the beneficiary's period of employment 
abroad was in compliance with the relevant statutory provisions. 
Accordingly, we find that the record with regard to the beneficiary's employment abroad is deficient in two 
ways. First, the petitioner failed to provide reliable probative evidence sufficient to establish that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. Second, in addition to not 
meeting its burden of demonstrating the managerial or executive nature of the beneficiary's former position 
with the foreign entity, the petitioner failed to establish that the beneficiary was employed abroad by the 
qualifying entity for a total of one year during the three years prior to the date the instant petition was filed. 
Therefore, in light of these additional adverse findings, this petition cannot be approved. 
IV. Conclusion 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, it is the petitioner's burden to establish eligibility for 
the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 
127, 128 (BIA 2013). Here, in light of the findings issued in the director's decision and the additional 
findings issued by this office, that burden has not been met. 
ORDER: The appeal is dismissed.