dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 31, 2024 In Re: 31682155 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner is a cell phone and cell phone accessories retailer. It seeks to permanently employ the 
Beneficiary as its "chief operating officer" (COO) under the first preference immigrant classification 
for multinational executives or managers. See 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 Director of the Nebraska Service Center revoked approval of the petition concluding that the 
Petitioner did not demonstrate that the Beneficiary was employed abroad and would be employed in 
the United States in a managerial or executive capacity or that the Petitioner had at the time of filing 
and continues to have the ability to pay the Beneficiary's proffered wage.1 The matter is now before 
us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal because the Petitioner has not overcome the Director's adverse 
determinations regarding the claims that the Beneficiary was employed abroad and would be employed 
in the United States in an executive capacity. 2 Because the identified grounds for denial are dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments 
regarding the issue of its ability to pay. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible) . 
1 Under U.S. Citizenship and Immigration Services regulations, the approval of an immigrant petition may be revoked on 
any ground, so long as the petitioner is provided with a written notification explaining the specific reasons for the 
revocation. 8 C.F.R. §§ 205.2(a) and (c). 
2 The Petitioner provided the Beneficiary 's job duty breakdowns for the foreign and U.S. position, respectively under the 
heading "Executive Job Duty Description," thereby indicating that its claim regarding the Beneficiary's foreign and 
proposed positions rests on the statutory definition of executive capacity. Therefore, the definition of managerial capacity 
does not apply and will not be discussed in the analysis below. 
I. LAW 
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)(l)(C) of the Act. 
The Form I-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 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. § 204.5(j)(3). 
"[A]t any time" before a beneficiary obtains permanent residence, USCIS may revoke a petition's 
approval "for good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155; Nouritajer v. 
Jaddou, 18 F.4th 85, 88 (2d Cir. 2021). If supported by the record, a petition's erroneous approval 
may justify its revocation. Matter ofHo, 19 I&N Dec. at 590. 
USCIS properly issues a notice of intent to revoke (NOIR) if the unexplained and unrebutted record 
at the time of the NOIR's issuance would have warranted the petition's denial. Matter ofEstime, 19 
I&N Dec. 450, 451 (BIA 1987). If a petitioner does not timely respond to a NOIR or the response 
does not overcome the listed revocation grounds, USCIS may revoke a petition's approval. Id. at 452. 
II. ANALYSIS 
The issues to be addressed in this decision concern the Beneficiary's foreign and U.S. employment in 
an executive capacity and whether the Petitioner submitted sufficient evidence to overcome the 
Director's adverse conclusions on these two issues. 
A. Employment Abroad 
First, we will address the Beneficiary's claimed employment abroad. In a support letter that was 
submitted at the time of filing, the Petitioner stated that the Beneficiary worked abroad at 
from December 2002 until June 2015. This end date, however, does not align 
with the Petitioner's discussion of the Beneficiary's employment at where she is 
claimed to have held two positions - first as finance manager and then as chief operating officer 
(COO). Namely, despite claiming that the Beneficiary's employment with ended 
in 2015, in the same support letter the Petitioner claimed that the Beneficiary held her initial position 
as finance manager from December 2002 to August 2010, and then served as the company's COO 
from August 2010 until September 2014. 
The Director noted this discrepancy in a subsequently issued NOIR. The Director also pointed out 
that in another document the Petitioner claimed that the Beneficiary's tenure as 
2 
COO ended in May 2015, thus adding yet another end date for her employment abroad. 3 See Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988) (requiring a petitioner to resolve inconsistencies or 
ambiguities in the record through the submission of independent, objective evidence pointing to where 
the truth lies). 
Aside from the inconsistencies discussed above, the NOIR also discussed information gleaned from a 
B-2 nonimmigrant visa (NIV) application that the Beneficiary filed in March 2011 as well as 
information obtained during a 2019 site visit to the Beneficiary's place of employment in the United 
States. Regarding the NIV application, the Director noted that the Beneficiary listed I I 
I I not _____ as her employer at the time she filed the application in 2011, 
despite her prior claim of continuous employment with from December 2002 until June 2015. 
And in discussing the 2019 site visit, the NOIR states that the Beneficiary provided insufficient 
responses when asked for information about her claimed employment with 
including her position description, the duties she performed, her work schedule and hours worked, and 
information about her former colleagues and subordinates. 
The Director reiterated the above findings in a notice of revocation, which the Petitioner now disputes 
on appeal, asserting that it met all eligibility requirements. The Petitioner further suggests that the 
Director should have excused the Petitioner's untimely response to the previously issued NOIR 
because the delay "was reasonable and was beyond the control of the [] petitioner" pursuant to "8 
C.F.R. § 103(a)(l)(i)." Because the referenced language pertains to a motion to reopen and not to a 
NOIR, it is not relevant in the matter at hand. See 8 C.F.R. § 103.5(a)(l)(i); see also Matter ofEstime, 
19 I&N Dec. at 452 ("Similarly, if ... the petitioner fails to make a timely explanation or submission 
of evidence to the Service, after having been given a reasonable opportunity to do so, the Service's 
decision to revoke will be sustained.") Regardless, after reviewing the totality of the evidence 
submitted, we do not agree with the Petitioner's assertion that it met all eligibility requirements, 
particularly the foreign employment requirement, which in this case is based on the Beneficiary's 
claimed employment with I I 
In addressing the issue of the Beneficiary's foreign employment on appeal, the Petitioner has not 
provided sufficient independent, objective evidence to resolve the previously discussed 
inconsistencies and anomalies to establish the required foreign employment in an executive capacity. 
See Matter ofHo, 19 I&N Dec. at 591-92. First, the Petitioner refers to two separate interviews, noting 
that one interview was "conducted via telephone when the Beneficiary was on a day off from work." 
The Director does not mention a telephone interview or base the revocation on this interview. The 
Director's revocation refers only to a site visit that occurred in July 2019, which the Petitioner 
acknowledges as having taken place in person at the Petitioner's place of business where both the 
Beneficiary and her spouse, also an employee of the U.S. entity, were interviewed. Since no other 
interviews were discussed in the revocation, only the findings from the July 2019 site visit will be 
addressed in this decision. 
3 While not discussed in the NOIR or notice of revocation, the record contains two separate Form 1-485, Application to 
Register Permanent Residence or Adjust Status, in which the Beneficiary listed April 9, 2014, as the date of her last arrival 
to the United States. The current petition form also lists the same information, thus indicating that the Beneficiary departed 
India, where isis located, prior to April 9, 2014, which further calls into question the June 2015 claimed 
end date for her work. 
3 
On appeal, the Petitioner challenges the propriety of the site visit, claiming that it was "unreasonable 
and arbitrary" and asserting that the Beneficiary's "responses should not be given great weight." The 
Petitioner further states that "being randomly questioned by an Immigration Officer can be 
overwhelming and stressful" and points out that the Beneficiary provided "a detailed job description" 
via email to compensate for any deficiencies in the information provided during her interview. 
However, we find that the Director was reasonable in expecting that the Beneficiary should be able to 
provide basic information, such as the job duties she performed in a position she claims to have held 
for multiple years, even if, as the Petitioner claims, the Beneficiary commenced her employment at 
"over 17 years ago." The Petitioner's explanation is not sufficient when 
considered in totality, within the context of the previously listed inconsistencies, including conflicting 
information about the end date of the Beneficiary's claimed employment with and 
the Beneficiary's conflicting response in her 2011 NIV application where she listed an entirely 
different employer, ______ rather than I las her employer. 
The Petitioner also offers a deficient and uncorroborated explanation to address the NIV discrepancy. 
Namely, the Petitioner claims on appeal that "the Beneficiary was involved in her husband's business, 
She further claims that she was "not an employee of the company, nor was 
she paid as such." Yet, she maintains that she did not make "an inaccurate statement" when she 
claimed ______ as her employer in the NrV application. The Petitioner, however, offers 
no reasonable explanation as to why the Beneficiary claimed as her employer a company which, 
according to the Petitioner, did not employ or pay her, in lieu oflisting a a company 
that had purportedly employed the Beneficiary for approximately nine years as of the date she filed 
her NIV application. The Petitioner must support its assertions with relevant, probative, and credible 
evidence, which it has not done here. See Matter of Chawathe, 25 r&N Dec. 369, 376 (AAO 2010). 
If users finds reason to believe that an assertion stated in the petition is not true, users may reject 
that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § 1154(b); Anetekhai v. INS, 876 F.2d 
1218, 1220 (5th Cir. 1989); Lu-Ann Bake1y Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The Petitioner also provides evidence in the form of company-generated job offer letters reflecting 
dates during which the Beneficiary was purportedly working at _____ The letters discuss 
the two positions the Beneficiary is claimed to have held, including her initial position as finance 
manager, which is discussed in a letter dated December 2, 2002, and her subsequent position as COO, 
which is discussed in a letter dated August 16,2010. Each letter is accompanied by a salary breakdown 
of the position in question. However, the annual salary listed in the letter regarding the Beneficiary's 
purported position as the foreign entity's COO is inconsistent with paystubs that the Petitioner 
submitted in response to one of the Director's earlier notices. Namely, the Petitioner had previously 
provided 12 monthly paystubs accounting for the one-year period from September 2013 through 
August 2014. While the annual salary depicted in those paystubs totals Rs. 750,000, the salary 
breakdown provided on appeal with the job offer letter shows that the Beneficiary's annual 
compensation as COO was supposed to be Rs. 450,000. Given the weight of the previously discussed 
inconsistencies which significantly undermine the Petitioner's foreign employment claim, and the 
additional inconsistency created by the previously submitted paystubs, the internally generated 
4 
company letters that have been submitted on appeal do not constitute independent objective evidence 
sufficient to overcome the Director's adverse findings. 4 See Matter ofHo, 19 I&N Dec. at 591-92. 
Likewise, while we acknowledge the Petitioner's submission of a project proposal from March 2012 
and a performance review from May 2012, each containing the Beneficiary's signature, neither 
document is corroborated by contemporaneous evidence that is objective and independent of the 
Beneficiary and the family-owned company where she is claimed to have worked. 5 Id. A petitioner 
may submit a letter or affidavit that contains hearsay or biased information, but such factors will affect 
the weight to be accorded the evidence in an administrative proceeding. See Matter ofD-R-, 25 I&N 
Dec. 445, 461 (BIA 2011) ( citations omitted). Ultimately, to determine whether a petitioner has 
established eligibility for a requested benefit by a preponderance of the evidence, USCIS must 
examine each piece of evidence - both individually and within the context of the entire record - for 
relevance, probative value, and credibility. Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
Further, the Petitioner provides no documentation to support the claim that "most records are not kept 
for significant periods of time," nor is there any indication that attempts were made to locate 
independent objective evidence to adequately address the deficiencies noted in the Director's decision. 
As such, we do not agree with the Petitioner's assertion that it has provided "undeniable, bona fide 
documents" that adequately address not only the site visit discrepancies, but also the discrepancy 
between the Petitioner's current claim and the information provided by the Beneficiary in her 2011 
NIV application. 
In sum, the Petitioner has not provided sufficient evidence to overcome the anomalies and 
inconsistencies surrounding the Beneficiary's claimed employment with Because 
the Petitioner did not adequately document its claim on this issue, we cannot conclude that the 
Beneficiary satisfied the provisions of the foreign employment requirement to show that she was 
employed abroad in an executive capacity. 
B. U.S. Employment 
In addressing the issue of the Beneficiary's proposed U.S. employment on revocation, the Director 
highlighted findings resulting from the 2019 site visit, during which the Beneficiary and her spouse 
were both interviewed. As with the Beneficiary's responses concerning her claimed employment 
abroad, the Director noted that the Beneficiary was not able to adequately describe her assigned duties 
as the Petitioner's COO. The Director also noted that in a follow-up email further addressing the issue 
of her proposed U.S. position, the Beneficiary provided the same job description as had been submitted 
in support of a previously filed LIA petition.6 The Director determined that the Beneficiary's 
"inability to describe her day-to-day duties casts doubt on what duties she actually performs." 
4 See FN3 discussing evidence of the Beneficiary's last anival to the United States in April 2014, which further undermines 
the reliability of the previously submitted paystubs showing the Beneficiary employment abroad through August 2014. 
5 The record indicates that the Beneficiary's father-in-law is the owner of the I I 
6 USCIS records show that in 2016 the Petitioner filed a Form I-129, Petitioner for a Non-Immigrant Worker, with receipt 
number ____ seeking to extend the Beneficiary's classification as an L- IA manager or executive. Although 
that petition was initially approved, the approval was ultimately revoked on notice in April 2018. 
5 
On appeal, the Petitioner contends that the Beneficiary adequately addressed the issue of her proposed 
employment in a follow-up email which the Petitioner claims included "a detailed description of her 
[the Beneficiary's] daily job duties" that were consistent with prior submissions. The Petitioner, 
however, did not acknowledge the root of the Director's concern expressed in the NOTR and 
revocation, which was the Beneficiary's inability to adequately describe her proposed duties at the 
time of the 2019 site visit. In addition, the Director stated in the NOIR and in the revocation that 
"[b]]ased on the derogatory information discovered during the site visit, USCTS requires additional 
evidence to show that the job offered as of the time of filing was, in fact, in a qualifying executive 
capacity." Merely providing a previously submitted job description is not sufficient to address issues 
that materialized during the 2019 site visit and meet the Petitioner's burden of proof. 
While we acknowledge the Petitioner's submission of a newer version of the Beneficiary's job duty 
breakdown on appeal, the only distinction in the current iteration is that a percentage of time has been 
assigned to individual components of the list rather than to the broader categories, as in an earlier 
iteration. The items comprising the job breakdown, however, are listed verbatim as in prior job 
descriptions and offer no new insight about the actual tasks assigned to the Beneficiary within the 
scope of the Petitioner's operation at the time of filing. The Petitioner also provided a document titled 
"Detailed Timeline Chart" which is comprised ofjob duties that the Beneficiary is claimed to perform 
during one- and two-hour intervals daily. However, the duties comprising this list are also vague, 
highlighting the Beneficiary's authority with respect to "internal operational activities," "company 
goals, policies, and procedures," and the company's "current structure" as well as her authority over 
management personnel, company budgets, and expansion plans. The Petitioner offered no details 
about the actual daily tasks to be performed with respect to these duties within the context of a cell 
phone and accessories retail operation. 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), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
The Director also pointed out that while documents in the record listed I I the Beneficiary's 
spouse, as the Beneficiary's subordinate occupying the position of "retail head," the record contains 
tax documents which I had signed listing himself as the company's "president." On appeal, 
the Petitioner asserts that "Mr. continues to own the majority" of the U.S. entity and that as such, 
he "is authorized to sign documents on behalf of the Company." The Petitioner further explains that 
the tax documents "list him ["Mr. as President because he is the majority owner of the 
Company." We observe, however, that the signature on the noted tax documents is that ofl I 
notnot that of his father, ____ whom the Petitioner has claimed as its majority owner at the 
time of filing. 7 As such majority ownership, even if adequately documented, would 
not explain why whom the record has listed as the Petitioner's retail head, signed 
documents as the Petitioner's president. In addition, the Petitioner had originally submitted a copy of 
its "Minutes of Organizational Meeting," which took place in January 2015 and shows that pursuant 
to an election of officers, the Beneficiary was "unanimously elected" as the company's president. 
According to the provisions of the minutes, the Beneficiary would continue to hold her elected position 
until a successor is elected and deemed to "qualify" for that position in the Beneficiary's place. The 
record contains no evidence that further steps were taken to elect I I as the Beneficiary's 
7 Evidence pertaining to the Petitioner's ownership will be addressed in greater detail in the final portion of this decision. 
6 
 
replacement. These additional inconsistencies further complicate a determination as to the trne nature 
of the Beneficiary's position and job duties. 
In sum, the Petitioner has not adequately addressed the deficiencies that were noted in the Director's 
revocation notice, nor does the record adequately demonstrate that the Petitioner was ready, at the time 
of filing, to employ the Beneficiary in an executive position which would be primarily comprised of 
executive-level job duties. 
III. ADDITIONAL DEFICIENCIES 
Lastly, while not the basis for our decision to dismiss this appeal, our review of the record shows that 
it contains inconsistent evidence which leads us to question whether the Petitioner has a qualifying 
relationship with the Beneficiary's claimed foreign employer. See 8 C.F.R. § 204.5(j)(3)(i)(C) 
(requiring each petitioner to demonstrate the existence of a qualifying relationship). Namely, the 
inconsistencies pertain to the Petitioner's ownership, which is a critical element in establishing the 
existence of a qualifying relationship between two entities. 8 
At the time of filing, the Petitioner claimed that it and _____ the Beneficiary's claimed 
employer abroad - are affiliates by virtue of both being majority owned by I I The record 
also contains a "Certificate of Registration" showing I I as sole owner of the foreign entity 
and a corporate resolution document with corresponding share certificates showing that the 
Petitioner's stock was distributed as follows: 1) Certificate No. 1 issued 102 shares tol I 
2) Certificate No. 2 issue 78 shares to the Beneficiary; and 3) Certificate No. 3 issued 20 shares 
to I The record further shows I I surrender of the 20 shares and 
issuance of Certificate No. 7, which issued those 20 shares tol I the Beneficiary's spouse. 
The record does not contain a stock ledger documenting all share transactions, nor is it clear whether 
the Petitioner issued Certificate Nos. 4, 5, and 6, all of which sequentially precede Certificate No. 7. 
As such, we are unable to determine whether any further ownership changes took place since the time 
of the original share issuance. Any stock transfers changing the Petitioner's majority ownership would 
further undermine the claimed affiliate relationshiT between the Petitioner and the foreign entity, 
which would have to be owned and controlled by Iin order to maintain their affiliate 
relationship. See 8 C.F.R. § 204.5(j)(2) (defining "affiliate" as one of two subsidiaries both of which 
are owned and controlled by the same parent or individual). 
However, the Petitioner later supplemented the record with tax returns that were inconsistent with the 
corporate resolution and share certificates and did not consistently convey information about the 
Petitioner's ownership. First, the Schedules K, which were part of the Petitioner's 2015, 2016, and 
2017 tax returns, show that the Petitioner responded "no" when asked if any "one foreign person 
own[ed], directly or indirectly, at least 25%" of its stock. This is clearly in conflict with the ownership 
breakdowns listed above, which show the Petitioner to be majority-owned by I I an Indian 
national, and show the Beneficiary, also an Indian national, as owner of 39% of the Petitioner's stock. 
8 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 'l, 
19 I&N Dec. 593 (Comm'r 1988); Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter ofHughes, 
18 I&NDec. 289 (Comm'r 1982). 
7 
Several of the tax returns show further inconsistencies concernmg the company's ownership 
distribution. 
First, as we discussed in our decision issued in 2018, Schedule G of the Petitioner's 2016 amended 
tax return contains a conflicting ownership breakdown, which accounts for more than 100% of its 
stock, thereby creating a factual impossibility. Namely, this tax return lists I I with a 51 % 
ownership interest while listing I Iand the Beneficiary, each with a 49% ownership share, 
thus accounting for more than 100% of the Petitioner's stock. Further, the record contains two 
inconsistent versions of the Petitioner's 2017 tax return, one of which shows the same conflicting 
information in its Schedule G as was disclosed in the amended tax return for the prior year. That said, 
the record contains another Schedule G that is attached to another version of the 2017 tax return. That 
version lists I I the Beneficiary, and her spouse as owning 51 %, 39%, and 10% of the 
Petitioner's voting stock, respectively. We note that only one version of the 2017 tax return is 
accompanied by Form 1125-E, and the information contained therein lists the Beneficiary and her 
spouse, each holding a 49% ownership interest in the petitioning entity. 
On appeal, the Petitioner provides four more years of tax returns for years 2018-2021, but they also 
present similar inconsistencies as those described above. Only the Form 1125-E and Schedule G of 
the 2018 tax return are consistent in listing I Ithe Beneficiary, and her spouse as owning 
51 %, 39%, and 10% of the Petitioner's voting stock, respectively. However, Form 1125-E and 
Schedule G of the 2019, 2020, and 2021 tax returns are not consistent. While Schedule G of all three 
tax returns reiterates the information in the 2018 tax return, Form 1125-E of the 2019 and 2020 tax 
returns lists the Beneficiary and her spouse, each holding a 49% ownership interest in the petitioning 
entity and Form 1125-E of the 2021 tax return lists only I I the Beneficiary's spouse with a 
49% ownership interest. The Petitioner does not acknowledge, and the record does not contain 
independent, objective evidence addressing the catalogued inconsistencies pertaining to the 
Petitioner's ownership. See Matter of Ho, 19 I&N Dec. at 591-92. Since common ownership is a 
critical element in demonstrating the existence of a qualifying relationship, these inconsistencies 
concerning the Petitioner's ownership undermine the claim that the Petitioner and 
the Beneficiary's claimed foreign employer, are both majority-owned by the same individual. See 
4 USCTS Policy Manual, F.4(B), https://www.uscis.gov/policy-manual. 
Lastly, we tum to our review of the quarterly tax returns and the state quarterly wage withholding 
reports that the Petitioner has submitted on appeal. While not discussed in the Director's decision, we 
note that the submitted documents, which account for quarterly wages paid by the Petitioner from 
2017 through 2022, show a considerable decrease in the Petitioner's work force, which lead us to 
further question whether the Beneficiary's role and job duties within the petitioning organization 
would be within an executive capacity. See 8 C.F.R. § 103.2(b)(l) (requiring each petitioner to 
establish that all eligibility requirements for the immigration benefit have been satisfied from the time 
of filing and continuing through adjudication). For instance, the Petitioner's 2017 quarterly tax returns 
show a significant fluctuation in the Petitioner's workforce from no employees during the first quarter 
to 28 employees during the fourth quarter. The Petitioner did not maintain this workforce, however, 
showing only 12 employees in its 2019 fourth quarterly tax return, and no employees at all according 
its 2020 third quarterly tax return. Although the 2020 fourth quarterly tax return shows 11 employees, 
the 2021 fourth quarterly tax return shows that the number of employees dropped to five and later 
dropped to only two employees in the 2022 fourth quarter. 
8 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof. Section 101 (a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function as the 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. 
Here, given the extreme fluctuations, and latest significant reduction in employees, the level of the 
Petitioner's operation has likely diminished, thus undermining the claim that the Petitioner had at the 
time of filing, and continues to have at this time, the ability to support the Beneficiary in an executive 
position where she would primarily "direct the management" and "establish the goals and policies" of 
the organization. Section 101(a)(44)(B) of the Act. 
As stated earlier, the additional deficiencies discussed in this section are not grounds for our dismissal 
of the appeal. Instead, our dismissal is based on the deficiencies that were previously discussed in the 
Director's revocation and which we further addressed in the analysis section of this decision. 
Nevertheless, the identified additional issues concerning the Petitioner's ownership and workforce are 
critical to its eligibility and the record as presently constituted would not support a favorable outcome 
even if the Petitioner resolves the deficiencies discussed in the main portion of our analysis. 9 
As the Petitioner has not shown that the Beneficiary's position abroad or in the U.S. was in an 
executive capacity, it has not overcome the Director's stated basis for the petition's revocation and the 
appeal must therefore be dismissed. 
ORDER: The appeal is dismissed. 
9 The Petitioner will be required to address the additional deficiencies in any future filings, or with regard to any other 
employment-based petition where the above-listed issues are relevant to eligibility. 
9