dismissed EB-1C Case: Retail

MATTER OF A-1- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 12, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an owner and operator of gas stations and convenience stores, seeks to permanently 
employ the Beneficiary as its president and chief executive officer (CEO) under the first preference 
immigrant classification for multinational executives or managers. See Immigration and Nationality 
Act (the Act) section 203(b)(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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in the United States in an executive 
capacity. 
On appeal, the Petitioner submits a brief asserting that the Director misunderstood the facts 
presented regarding the nature, size, and scope of its operation and incorrectly found that the 
Petitioner provided inconsistent evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa available to a beneficiary who, in the three 
years preceding the filing of the petition, has been employed outside the United States for at least one 
year in a managerial or executive capacity, and seeks to enter the United States in order to continue to 
render managerial or executive services to the same employer or to its subsidiary or affiliate. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(1)(C) of the Act as a rpultinational executive or manager. A labor 
certification is not required for this classification. 
The Form 1-140 must be accompanied by 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 
Matter of A-1- Corp. 
subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least one year. 8 C.F.R. § 204.50)(3) 
II. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
As indicated above, the Director determined that the Petitioner did not establish that the Beneficiary 
would be employed in the United States in an executive capacity. The Petitioner does not claim that 
it will employ the Beneficiary in a managerial capacity. Therefore, we restrict our analysis to 
whether the Beneficiary would be employed in an executive capacity. 
The term "executive capacity" is defined as "an assignment within an organization in which the 
employee primarily": 
(i) directs the management of the organization or a major component or function of 
the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
" 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the 
board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 110l(a)(44)(B). If staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship 
and Immigration Services (USCIS) must take into account the reasonable needs of the organization, 
in light of the overall purpose and stage of development of the organization. See section 
10l(a)(44)(C) ofthe Act. 
A. Duties 
When examining whether a Beneficiary will be employed in an executive capacity, we will look first 
to the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner filed a Form I-140 claiming to operate a "[c]hain of gasoline ~tations and convenience 
stores." In a supporting statement, the Petitioner described the two gas station and convenience 
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Matter of A-1- Corp . 
stores it acquired prior to filing the petltwn , indicating that one location has four "dedicated 
employees, including two (2) [m]anagers," while the other has two employees, including one 
manager. The Petitioner stated that the Beneficiary will not be involved in day-to-day tasks of 
running the gas station and convenience store operations, but rather functions at "the top-level U.S. 
executive ofthe corporation." 
The Petitioner explained that its two store locations - and 
are an hour apart from one another, therefore precluding the Beneficiary from being able to "run the 
operations of either" store. That said, the only address the Petitioner included inthe Form I-140 as 
the Beneficiary 's place of work is the one for the 
The Petitioner further stated that the Beneficiary is responsible for "long-term and day-to-day 
. running of the operations," establishing organizational goals, implementing corporate policies, 
overseeing and developing sales and finances, directing the company's planning and expansion 
through the acquisition of additional businesses, hiring, firing, and training employees, and carrying 
out 
"banking, accounting[,] marketing, and budgeting" tasks. 
In addition, the Petitioner stated that 40% of the Beneficiary's time would be allocated to operations, 
35% to expansion, and 25% to human resources. First, the Petitioner explained that the 
Beneficiary's "operations" duties would involve: regularly visiting its two gas station and 
convenience stores to ensure that each store is meeting sales objectives, to determine where to 
reduce costs, and to make policy changes; determining market trends and making changes 
accordingly; networking "within the community"; implementing policies arid objectives that will 
maximize profits and increase productivity ; reviewing financial reports "prepared by accounting 
services"; and conferring with staff to coordinate activities and resolve problems. 
Next, the Petitioner addressed the Beneficiary 's "expansion" responsibilities, stating that he "is 
solely responsible for expanding" the business, which would involve reviewing company finances, 
deciding on marketing techniques and promotions to "upsell products" and "entice customers to 
come to the stores," conducting research to find stores for sale, negotiating sales terms, and 
acquiring the assets and inventory of the purchased property. The Petitioner stated that the 
Beneficiary has sole discretionary authority in deciding which property to buy and determining the 
location of the company' s headquarters. Lastly, with regard to the Beneficiary's "human resources" 
duties, the Petitioner stated that the Beneficiary supervises and delegates responsibilities to 
management personnel and "establishes responsibilities for staff members and resolves staff issues" 
at each store location. 
Upon review, we agree with the Director in finding that the original job description lacked sufficient 
details about the actual tasks the Beneficiary was assigned to perform within the scheme of a retail 
operation consisting of two gas station and convenience store businesses. The actual duties 
themselves reveal the true nature of the employment. Fedin Bro s. Co. , Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Here, the Petitioner did not specify 
what marketing tasks the Beneficiary was assigned at the time of filing or the portion of time he was 
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Matter of A-I- Corp. 
expected to allocate to such tasks. As the Petitioner does not appear to have any marketing 
employees, we are led to believe that any non-managerial marketing functions required by the 
Petitioner would be carried out by the Beneficiary himself. 
The Petitioner also did not explain the types of activities the Beneficiary was expected to coordinate, 
describe the problems he would help to resolve, or specify any policy changes he has made or would 
make based on the business as it existed at the time of filing. 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., 724 F. Supp. at 1108. 
We also find that the Petitioner provided vague and deficient information with regard to the job 
duties that correspond with the Beneficiary's role in "expansion" of the business. The Petitioner 
indicated that expanding the business would involve aspects of marketing as well as researching the 
market to find business to purchase and negotiating the sales terms of such purchases. While these 
job duties indicate that the Beneficiary would have a high degree of discretionary authority over 
matters concerning the business, ,we do not find that marketing-related tasks or tasks required to find 
additional businesses for the Petitioner to purchase: are indicative of executive-level job duties. 
Likewise, while the Beneficiary's placemen( at the top of the organization justifies his authority 
regarding personnel matters, the Petitioner has not established that spending two hours per day 
educating and training staff can readily be deemed an executive function when the staff being 
educated and trained is comprised, in part, of clerks and cashiers at a gas station and convenience 
store. As previously stated, the Petitioner did not provide sufficient information as to what type of 
training and education the Beneficiary offers or what specific job duties are entailed in provided 
"executive-level supervision" to the employees of a retail establishment. 
After reviewing the evidence, the Director issued a request for evidence (RFE), instructing the 
Petitioner to list the Beneficiary's specific daily job duties and the percentage of time the 
Beneficiary would allocate to each individual duty. The Director advised the Petitioner against 
grouping tasks into categories and stated that the job description should explain how the 
Beneficiary's proposed position meets the four-prong definition of executive capacity. The Director 
also asked the Petitioner to provide a list of daily productive and administrative tasks required to 
operate the business and to state who would be carrying out those tasks. 
In response, the Petitioner provided a supplemental job description that is somewhat similar to the 
job description it submitted initially. The Petitioner once again claimed that the Beneficiary would 
distribute his time among operations, expansion, and human resources responsibilities, and assigned 
the same percentage breakdowns to these categories as in the original description. 
In denying the petition the Director found that instead of providing information that expands upon 
the original job description, the Petitioner provided a lengthier job description that· was different 
from the one it originally submitted. The Director interpreted the differences in the two job 
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Matter of A-1- Corp. 
descriptions as inconsistencies and further found that the latest job description, like the original, 
lacks specific information about the actual job duties the Beneficiary would perform. 
On appeal, the Petitioner argues that the Director misinterpreted the differences between the original 
and latest job descriptions as inconsistencies, claiming that job description submitted in response to 
the RFE is merely a reflection of the Beneficiary's current job duties, which are not identical to those 
he performed when the petition was filed. The Petitioner contends that the hourly breakdown it 
provided in the latest job description contains sufficient information to establish that the Beneficiary 
would primarily perform job duties of an executive nature and that he would not spend the majority 
Of his time on day-to-day functions. 
While it is plausible that the Beneficiary's updated job duties reflected organizational changes that 
may have taken place after the time of filing, the Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing and 
continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
Further, the new job description also lacked sufficient information about the Beneficiary's specific 
tasks and the nature of those tasks. For instance, the new description did not mention the 
Beneficiary's role in achieving cost reduction or explain how the Beneficiary determines market 
trends or the need to implement policy changes. It also did not state what actual tasks the 
Beneficiary would perform to "ensure success of continuing operations" and increase the Petitioner's 
productivity. Rather, the updated job description contained additional job duties that had not been 
previously mentioned, including hourly allocations to "educating the staff on the latest developments 
in vendor promotions, market trends, customer preferences, etc." and ensuring that the staff at each 
store is in compliance with "organizational policies." The Petitioner did not specify any actual 
organizational policies or establish that vendor promotions, market trends, and customer preferences 
in the gas station and convenience store industry change at such a rate as to require the Beneficiary 
to spend up to two hours per day "educating staff' at each store regarding these changes; nor did the 
Petitioner establish that "educating staff' within the Petitioner's organization is an executive job 
duty. 
As previously noted, the Petitioner did not indicate that it employs customer service or marketing 
personnel, aside from the sales clerks who work at each of its two store locations. Therefore, it 
appears that· the Beneficiary would be the point of contact for vendors regarding vendor promotions 
and that he would also conduct the underlying market research to determine current market trends 
and customer preferences. It is unclear how these underlying tasks would fall within the parameters 
of the statutory definition of executive capacity. Further, the Petitioner provided an example of the 
Beneficiary's policy-making authority, stating that the Beneficiary made an "executive decision" to 
join the We do not doubt that the Beneficiary's top-most placement 
within the petitioning organization requires the Beneficiary to make discretionary decisions. 
However, the Petitioner did not state that the Beneficiary would allocate a significant portion of his 
time to making such discretionary decisions on a daily basis. 
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Matter of A-1- Corp. 
The Petitioner also stated the Beneficiary spends one to two hours daily "analyzing the company's 
financial position" by reviewing reports "prepared by accounting services and store managers" and 
making inventory and budget decisions, which the store managers must then implement. The 
Petitioner stated that "subordinate staff' engage in vendor negotiations and processing accounts 
payable while the operations manager, rather than the Beneficiary, "is responsible for processing 
inventory, ordering, and receiving" at its retail locations. The Petitioner did not, however, explain 
what activities the Beneficiary coordinates with staff or specify what types of problems he helps the 
staff to resolve, as claimed in the original job description. 
Next, with regard to the Beneficiary's role in expansion of the business, the Petitioner stated that the 
Beneficiary spends two to three hours daily "endeavoring to grow the business either by improving 
the efficiency of the existing retail locations and/or acquiring additional retail locations." The 
Petitioner claimed that the Beneficiary has daily meetings with "a group of other retail chain owners 
and operations ... to discuss market trends in the industry and review and discuss prospective 
investments." The Petitioner did not specify any actual market trends that have been contemplated 
at these daily meetings or explain what role competitor businesses within the area would play in 
assisting the Petitioner with its plan "to grow the business" such that would justify the frequency of 
such meetings. The Petitioner claimed that the business owners with whom the Beneficiary meets 
are "similarly situated business owners" but stated that they are not its "direct competitors." 
However, the Petitioner did not specify the types of businesses undertaken by these claimed business 
associates such that would enable us to understand how such associates can be "similarly situated" 
while not being deemed a "direct competitor" of the Petitioner; nor did the Petitioner explain what 
knowledge these similarly situated business owners possess that can impact the Petitioner's ability to 
expand its own business operations. 
Lastly, the Petitioner stated that the Beneficiary spends approximately two hours daily training and 
educating staff, providing "executive-level supervision," and ensuring staff compliance with the 
company's policies and regulations. The Petitioner explained that this time could be spent either in 
person or by phone. The Petitioner did not, however, specify what actual tasks fall within the 
category of "executive-level supervision" or explain how educating staff within the context of the 
Beneficiary's role in human resources is different from educating staff within the context of his role 
in operations. That said, the Petitioner did not establish that educating staff and ensuring that they 
adhere to organizational policies qualify as executive tasks. Thus, the Petitioner's multiple 
references to these broad job responsibilities do not provide a more meaningful understanding of the 
Beneficiary's actual daily tasks or establish that such tasks are of an executive nature. The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., 724 F. Supp. at 1108, 
aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, while the Petitioner denied that the Beneficiary spends any significant portion of his time 
driving to the different retail locations, its breakdown of his duties indicates that he spends time in 
each store each day; his "operations" and "human resources" responsibilities require four to six 
hours daily and involve direct supervision of the stores and their staff. The broadly stated 
information contained within the updated job description does not establish what percentage of the 
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Matter of A-1- Corp. 
Beneficiary's time would be spent performing executive-level job duties, and suggests that at least 
half of his time would be spent on non~executive duties at the Petitioner's stores. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services or other non­
qualifying duties is not considered to be "primarily" employed in an executive capacity as defined at 
section 101(a)(44)(B) of the Act. 
In light of the above discussion highlighting the various deficiencies in the job descriptions on 
record, we disagree with the Petitioner and find that the record lacks a sufficient job description 
which "clearly describe[s] the duties to be performed" by the Beneficiary. 8 C.F.R. § 204.5(j)(5). 
B. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed 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 an understanding of a beneficiary's actual duties and role in a business. 
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)(4'4)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and a beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day 
operations of the enterprise. An individual will not be deemed an executive under the statute simply 
because they have an executive title or because they "direct" the enterprise as an owner or sole 
managerial employee. A beneficiary must also exercise "wide latitude in discretionary decision 
making" and receive only "general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization." I d. 
We note that 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 petition for classification as a 
multinational executive. See section 101(a)(44)(C) ofthe Act. However, it is appropriate for USCIS 
to consider the size of the petitioning company in conjunction with other relevant factors, such as the 
absence of employees who would perform the non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See e.g., Family Inc., 
469 F.3d 1313; Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a 
company may be especially relevant when USCIS notes discrepancies in the record and fails to 
believe that the facts asserted are true. See Systronics, 153 F. Supp. 2d at 15. 
In the present matter, the Petitioner claimed to have five employees at the time of filing and 
submitted an organizational chart depicting the Beneficiary at the top of the hierarchy as its president 
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Matter of A-1- Corp. 
and CEO with the managers of two retail operations as his direct subordinates. More specifically, 
the one of two retail locations, shows a staff of two full-time managers, one 
"A.M. Cashier (Full-Time)" and one "Cashier (Full-time)." the Petitioner's 
second retail operation, is depicted as having one "P.M. Manager (Part-Time)," a vacant position for 
an "A.M. Manager (Full-Time)" and no cashiers. 1 We further note' that the individual identified as 
part-time "P.M. Manager" is the same person who is shown as occupying the "A.M. Cashier 
(Full-Time)" position at Although the chart also showed an upcoming final 
purchase of a third retail operation in March 2015, we will not consider 
this information for the purpose of determining the Petitioner's eligibility given that the store was 
not part of the Petitioner's organization in October 2014 when the petition was filed. See 8 C.F.R. 
§ 103.2(b)(1).2 
In the RFE, the Director reviewed the evidence and determined that the Petitioner did not establish that 
it had a full-time subordinate staff of professionals that warrants the Beneficiary's employment in an 
executive position. 
In response, the Petitioner provided two additional charts that reflected the organization as it existed 
in January 2016. As indicated above, evidence that relates to facts and circumstances that occurred 
after the instant petition was filed are not relevant for the purpose of determining the Petitioner's 
eligibility at the time of filing and therefore will not be addressed in this discussion. See id. The 
Petitioner also provided seven employee IRS Form W-2 statements for 2014 as well as a quarterly 
tax return for the 2014 fourth quarter indicating that the Petitioner paid an aggregate of $21,646 to 
six employees. Of the seven For:m W-2s that the Petitioner issued in 2014, two employees were not 
named anywhere in the Petitioner's October 2014 organizational chart, thereby indicating that they 
were not employed by the Petitioner at the time of filing. Of the remaining five employees, three 
employees - including two cashiers as well as its "P.M. Manager," who is 
also identified as "P.M. Manager" - were paid wages that were commensurate with those of 
either part-time employees or employees whom the Petitioner did not employ for the entire year. 
Given that the Form W-2 statements do not establish the specific time period during which those 
wages were paid, we cannot determine precisely whom the Petitioner employed when the petition 
was filed. However it appears that it employed the Beneficiary and the 
manager on 
a full-time basis. The employees listed as full-time cashiers consistently worked for the 
company in 2013 to 2015, but never receive wages indicating full-time employment. In fact, both of 
these employees earned less than $6000 in both 2013 and 2014. 
1 The Petitioner submitted color photographs of which show that this business is also a service station 
that offers oil changes and, based on the presence of a mechanic's shop and a "Mechanic on Duty" sign, other 
automobile repair services. The Petitioner has not claimed to employ a mechanic. 
2 The record shows the Petitioner did not complete that final purchase in March 2015 as anticipated. On appeal, the 
Petitioner provides evidence that it signed a lease agreement indicating that it would rent and operate (not purchase) the 
business known as beginning on November I, 2016. 
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Matter of A-1- Corp. 
In denying the petition, the Director reviewed the salaries and job duties of the Petitioner's support 
staff, noting that a number of employee salaries were indicative of part-time employment. The 
Director also pointed to the lack of a support staff at the two retail locations and further questioned 
the validity of the staffing hierarchies depicted in the originally submitted organizational chart, 
which shows the same individual occupying the position of a full-time manager at one retail location 
and a part-time cashier at the other location while earning an annual income below $6,000 in 2014 
and below $4,000 in 2015. In addition, the Director found that the Petitioner's original 
organizational chart was inconsistent with the latest chart submitted in response to the RFE. 
On appeal, the Petitioner contends that what the Director interpreted as inconsistencies were actually 
organizational changes that took place after it filed the petition. As stated earlier in this discussion, 
any changes to the Petitioner's organizational hierarchy since the date of filing are not relevant for 
the purpose of establishing eligibility in the present matter. Therefore, while we v.rill not question 
the Petitioner's credibility based on these organizational changes, we will not consider them for the 
purpose of determining the Petitioner's eligibility at the time of filing. Rather, we will consider the 
Petitioner's original organizational chart and any corroborating evidence to determine whether the 
Petitioner had the support staff to relieve the Beneficiary from having to allocate his time primarily 
to non-executive functions as of October 2014. 
The record in the present matter does not show that the Petitioner had the ability to support the 
Beneficiary in an executive capacity, despite claims to the contrary. As previously indicated, a 
subordinate level of managerial employees is inherent to the definition of executive capacity. 
Merely claiming that the Beneficiary will primarily focus on the Petitioner's broad goals and policies 
rather than its day-to-day operations is not sufficient, as a petitioner's unsupported statements are of 
very limited weight and normally will be insufficient to carry its burden of proof. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Matter o.fChawathe, 
25 I&N Dec. 369, 376 (AAO 2010). 
In the present matter, despite depicting the Beneficiary at the top of an organization consisting of 
two retail outlets, the record does not show that the Petitioner had sufficient employees to fully staff 
both outlets. As indicated above, the record shows that the only employee working at 
was a part-time employee who also performs duties at the Petitioner's other location. In 
addition, the Petitioner submitted photographs showing that this location offers mechanic services, 
but it does not claim to employ a mechanic. It is unclear who, if not the Beneficiary, is in charge of 
the store's operations during the remaining hours it stays open, particularly in light of the 
Petitioner's statements that he is at the location for at least a portion of each day. 
Likewise, the record indicates that the the Petitioner's second retail operation, 
also operated with a primarily part-time staff, as indicated by staff salaries in 2014. Despite the 
original organizational chart's depiction of a full-time evening manager, this individual's salary as 
shown in his 2014 W-2 statement does not corroborate this employee's full-time employee status. 
The same is true of the two individuals depicted as the store's full-time cashiers, whose salaries for 
2014, as noted above, were both below $6000. The Petitioner must resolve these discrepancies in 
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Matter of A-1- Corp. 
the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). While on appeal the Petitioner continues to claim that it had five 
employees who "satisfied [its] reasonable needs," these claims are not corroborated in the respective 
employee wage statements. Moreover, the apparent lack of full-time employees at either store 
location leaves open the possibility that the Beneficiary would be directly involved assisting with the 
daily operational tasks associated with operating a gas station and convenience store. 
III. CONCLUSION 
In light of the analysis provided above, the Petitioner has not established that the Beneficiary would 
be employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-1- Corp., ID# 327621 (AAO May 12, 2017) 
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