dismissed EB-1C Case: Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 06 215 51386 
 DEC 1 9 2008 
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. 8 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 8 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
L 
w 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
LIN 06 215 51386 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner filed a motion to reopen and reconsider. The director granted the motion but affmed his denial of 
the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner, a Texas corporation, alleges to operate a gasoline station and convenience store and to have a 
qualifying relationship with the beneficiary's claimed employer in Qatar. Accordingly, the petitioner 
endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(C), as a multinational executive or 
manager. 
The director denied the petition concluding that the petitioner failed to establish (1) that it has a qualifying 
relationship with the foreign employer; (2) that the beneficiary was employed abroad in a primarily 
managerial or executive capacity; or (3) that the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity. The director affirmed his denial of the petition on these same 
grounds in considering the petitioner's motion to reopen and reconsider. 
On appeal, counsel disputes the director's findings, asserts that the record establishes that the petitioner is 
owned and controlled by the foreign employer, and asserts that the beneficiary will perform, and has 
performed, primarily qualifying duties. 
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 fm 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 fm, 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)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
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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. 
Title 8 C.F.R. § 204.56)(3) explains that a petition filed for a multinational executive or manager under 
section 203(b)(l)(C) must be accompanied by a statement from an authorized official of the "petitioning 
United States employer" which demonstrates that: 
(A) 
 If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least 
one year in a managerial or executive capacity by a firm or corporation, or other legal 
entity, or by an affiliate or subsidiary of such a firm or corporation or other legal 
entity; or 
(B) 
 If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) 
 The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the fm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) 
 The prospective United States employer has been doing business for at least one year 
The first issue in this proceeding is whether the petitioner has established that it "is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed 
overseas." 8 C.F.R. 8 204.5(j)(3)(C). 
A "subsidiary" is defined at 8 C.F.R. 
 204.56)(2) as: 
[A] fm, corporation, or other legal entity of which a parent owns, directly or indirectly, 
more than half of the entity and controls the entity; or owns, directly or indirectly, half of the 
entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, 
less than half of the entity, but in fact controls the entity. 
Likewise, an "affiliate" is defined in pertinent part at 8 C.F.R. 
 204.5Cj)(2) as: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent 
or individual; [or] 
LIN 06 215 51386 
Page 4 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or proportion 
of each entity[.] 
The regulations and case law confi that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 
593 (Cornrn. 1988). In the context of this petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N at 595. 
In this matter, the petitioner failed to submit any evidence of its ownership and control or to allege any 
qualifying reIationship with the beneficiary's previous employer abroad. Accordingly, on October 4, 2006, 
the director issued a Notice of Intent to Deny in which the director noted the following: 
Your petition was not accompanied by any documentary evidence to establish that the foreign 
entity and the United States entity had, and continue to have, shared ownership andlor 
control. In your previous petition [EAC 04 039 510351, you submitted a copy of a stock 
certificate which indicates that the foreign entity, - W.L.L., owns all 
the shares of the petitioning corporation. However, each of your tax returns fiom 2000 
through 2005 Iist[s] the beneficiary as owner of 100% of the shares of the corporation. 
Although the [AAO] identified this issue in [its] dismissal of the appeal you filed on the 
denial of your previous petition for the beneficiary, you have submitted no credible evidence 
with the instant petition to establish the qualifying relationship between the foreign and U.S. 
organizations. 
Consequently, the director requested, inter alia, an explanation of the discrepancy between the stock 
certificate and the petitioner's various tax returns. 
In response, the petitioner submitted a copy of a translation of a power-of-attorney, signed by the foreign 
employer, purportedly granting the beneficiary the authority to operate the United States operation. The 
petitioner also submitted evidence that money was wired from abroad to the United States operation. 
On March 20, 2007, the director denied the petition. The director concluded that the power-of-attorney, 
associated correspondence, and wire transfer documents fail to establish that the foreign employer owns and 
controls the petitioner or to resolve the inconsistency between the stock certificate and the various tax returns. 
On motion, the petitioner submitted a copy of a stock certificate purportedly representing the issuance of 
100% of its shares to the foreign employer. The petitioner also submitted a letter dated April 18, 2007 in 
which the petitioner claims that its corporate tax returns have been amended to indicate that it is 100% owned 
by the foreign employer and not 100% owned by the beneficiary. The petitioner also asserts that its 
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accountant "had a confusion because of General Power of Attorney given to [the beneficiary]." Counsel also 
argues in its motion as follows: 
[The stock certificate] is the controlling instrument as to the ownership of the corporation - 
not what may be mistakenly indicated on his bookkeeping. [The beneficiary] has been given 
full authority to act on behalf of the foreign entity [citation omitted] and his bookkeeper, 
apparently, mistakenly put him down in the bookkeeping as the owner. It was a simple 
clerical error which his bookkeeper has now corrected. 
On December 27, 2007, the director affirmed his denial of the petition. The director noted that counsel's 
explanation was "hardly credible, given that this 'error' was repeated on each of the petitioner's [tax] returns 
from 2000 through 2005." 
On appeal, counsel reiterates his argument that the stock certificate, and not a "mistaken entry" on the 
corporation's tax returns, should be used to establish the petitioner's ownership and control. 
Upon review, counsel's arguments are not persuasive. 
As noted above, the petitioner claims that it is 100% owned by the foreign employer. In support, it submitted 
a copy of a stock certificate dated July 28, 2000 purporting to represent the issuance of 100,000 shares of 
stock to the foreign employer in Qatar. However, the petitioner also submitted its 2005 Form 1120, U.S. 
Corporation Income Tax Return, in which the petitioner claims in Schedule E that the beneficiary owns 100% 
of the petitioner's stock. As noted by the director in the Notice of Intent to Deny, the petitioner made similar 
averments in its 2001,2002, and 2003 income tax returns, which were submitted with a previous Form 1-140 
petition (EAC 04 039 51035). Therefore, the record contains a pattern of inconsistencies pertaining to the 
true ownership and control of the petitioner, which undermine the petitioner's eligibility for the benefit 
sought. 
Accordingly, the director issued a Notice of Intent to Deny and requested that the petitioner explain this 
pattern of inconsistencies and establish that it has a qualifyrng relationship with the foreign employer. 
However, the petitioner failed to submit any evidence resolving the inconsistencies. The petitioner's 
submission of a power-of-attorney, associated correspondence, and wire transfer documents do not bolster the 
petitioner's claim to be owned and controlled by the foreign employer. Furthermore, counsel's claim that the 
multiple averments in the tax returns regarding its ownership by the beneficiary were "clerical errors" is, as 
noted by the director, hardly credible. Not only were these averments made multiple times over a five-year 
period, the record is devoid of evidence explaining how, exactly, these errors were made or establishing that 
any of the tax returns have actually been amended. Moreover, as also noted by the director, the AAO 
specifically pointed out this pattern of inconsistencies in its denial of a previously filed Form 1-140 in a 
decision dated September 30, 2005. Therefore, the petitioner was put on notice of this deficiency in its 
organizational and financial records by the AAO and apparently chose to ignore it in filing its second Form I- 
140. Finally, the petitioner's self-serving letter dated April 18, 2007 in which the petitioner claims that its 
corporate tax returns have been amended is not sufficient to establish this fact. The record is devoid of any 
evidence of these alleged amendments. Going on record without supporting documentary evidence is not 
Page 6 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Id. at 591. 
Accordingly, as the record is not persuasive in establishing that the petitioner "is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed 
overseas," the petition may not be approved for that reason. 
The second issue in this proceeding is whether the petitioner provided sufficient evidence to establish that the 
beneficiary was employed abroad in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(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. @ 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 7 
(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. 
The petitioner does not clarify in the initial petition whether the beneficiary primarily performed managerial 
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of 
the Act. A petitioner may not claim that a beneficiary was employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that 
the petitioner is claiming that the beneficiary was employed in either a managerial or an executive capacity 
and will consider both classifications. 
In this matter, the petitioner failed to submit any evidence pertaining to the beneficiary's foreign employment. 
Accordingly, on October 4, 2006, the director issued a Notice of Intent to Deny in which he requested, inter 
alia, evidence of the beneficiary's employment abroad by Altadamon Rent-A-Car and a detailed description 
of the beneficiary's employment abroad, including a breakdown of the "approximate percentage of time spent 
on the various duties on a weekly basis." 
In response, the petitioner submitted a document titled "Detailed descriptions of [the beneficiary's] job at 
Altadamon Rent A Car" that described the beneficiary's job duties abroad as follows: 
[The beneficiary] started working with [the foreign employer] from Feb 1990. That time [the 
foreign employer] was a local car rental company with the fleet of 8 cars serving very limited 
areas. Upon his arrival he started concentrating on marketing field in order to enhance the 
requirements. He approached all of the major business suppliers in the market like [various 
corporations], All Hotels & tourism organizations and lot more. He was daily meeting their 
CEO's one by one and briefing them about his company goals and capability of handling 
requirements what so ever. 
In early stages he felt the lack of fleet and locations like Airport Counter and Major Hotels 
locations. He approached the authorities at Doha International wort and started requesting 
them for an Arrival lounge counter and within 3 months of time he was able to convince the 
authorities to secure a place for their car rental at Arrival Airport lounge, so Altadamon was 
lined up with all major car rental companies Avis, Budget, Hertz and Alamo. 
LIN 06 215 51386 
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During all this fleet was increased fiom 8 to 18 different types of vehicles were purchased. 
And as soon as Airport counter was ready to operate another 20 cars were purchased for this 
branch only. 
Soon [alfter another branch was opened at Sofitel Hotel and th[e]n within 6 months at 
Sheraton Hotel. Fleet increased accordingly to 100 vehicles. Within next one year [the 
beneficiary] was able to introduce his local company's name in front of all major business 
partners. He filled all the tenders personally in order to make sure his efforts are llly 
recognized. [The foreign employer] started growing tremendously and within short span of 
time fleet went up to 150 cars and that was a time when [the beneficiary] realized he can 
approach for international name which he always felt a requirement of many business 
suppliers. During his daily schedules he started researching all the possibilities and after 
having conversation to many international companies he succeeded to have a serious deal 
with Thrifty Car Rental Management at Tulsa Oklahoma. 
Soon all the requirements completed [two Thrifty representatives] visited [the beneficiary] 
and - and after viewing the company's progress and familiarity 
without International name at local markets they were very impressed and Thrifty Car rental 
franchise was awarded to [foreign employer]. 
The petitioner also submitted a document titled "Daily Activities" in which the beneficiary's duties abroad 
were further described as follows: 
[The beneficiary] worked from Saturday to Wednesday and occasionally on Thursdays 
according to any International guest's arrival. 
His daily Saturday schedule started from 7:30 AM with full of meetings with companies 
delegates, domestic and International and by lunch break he reviewed all the meetings['] 
objectives with different individuals according to the subject. After lunch he checked all the 
incoming international letters and accordingly prepared the reply through secretary and 4[:]00 
PM he Reviewed Staff hiring applications, Managers reports from both branches and any 
local mail until 6:00 PM closing time. 
Sunday started usually at 7:30 AM and during day time up to lunch break he always had out 
of office meetings and normally he visited different company's location with our marketing 
Evening's time was always folded with the morning updates and actions according to meeting 
requirements. 
Monday normally starts early in the morning Staff meeting discussing all the market 
requirement and related problems at all 4 locations normally branches were represented by 
their Managers. Airpoi a ranch Sofitel  ranch sheraton 
 ranch up to lunch break all the issues are discussed and finalized. 
Page 9 
After Lunch break he met with and discussed with him all the issues 
raised by branch managers. And in the evening he normally met with marketing agents of 
different news papers [sic] and advertising agencies about company's image and standard 
advertisements and he was assisted by marketing manager. 
Participating in local sports events as co[-]sponsor or a main sponsor always Discussed [sic] 
and finalized during this time with Marketing manager. 
Tuesday [the beneficiary] met with governments officials at their offices in order to [sic] 
Review legal matters of daily basis issues and after lunch break he met with car dealers and 
reviewed their vehicles specifications and their prices of products and possible availability of 
sudden requirements. 
Thursday always starts with operation manager 
 meeting and follow up of all 
reservations requirements for the weekend. Mechanical issues of vehicles discussed and 
Discussions on all week long activities and enhancements of business opportunities. 
Evening always spent to prepare for International regional and global meetings and follow up 
their agenda. 
The petitioner did not describe the organizational structure of the foreign employer or the duties of any of the 
other workers employed abroad. 
On March 20, 2007, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary was employed abroad in a primarily managerial or executive capacity. 
On motion, the petitioner submitted a nearly identical job description for the beneficiary. The petitioner also 
submitted a list of current employees abroad. 
On December 27,2007, the director affirmed his denial of the petition. 
On appeal, counsel claims that the beneficiary performed qualifying duties abroad. 
Upon review, counsel's assertions are not persuasive in establishing that the beneficiary was employed abroad 
in a primarily managerial or executive capacity. 
In examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. $ 204.50)(5). 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1 103,1108 (E.D.N.Y. 1989), afld, 905 F.2d 41 (2d. Cir. 1990). 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
acted in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary did abroad on 
LIN 06 215 51386 
Page 10 
a day-to-day basis. For example, the petitioner states that the beneficiary attended various "meetings" with 
other staff members, reviewed correspondence and reports, visited other office locations, and met with 
advertising representatives, government representatives, and car vendors. The petitioner also describes the 
beneficiary as "concentrating on marketing," working on the expansion of the foreign enterprise, and on 
securing a franchise relationship with Thrifty Car Rental. However, the petitioner does not explain what, 
exactly, the beneficiary did with regard to any of these "meetings" or establish that any of the beneficiary's 
vaguely described duties pertaining to marketing, administration, and operations were bona fide qualifying 
duties. The fact that the petitioner has given the beneficiary a managerial or executive title and has prepared a 
vague job description which includes inflated job duties does not establish that the beneficiary actually 
performed managerial or executive duties. Specifics are clearly an important indication of whether a 
beneficiary's duties were primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Id. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190. 
Consequently, the record is not persuasive in establishing that the beneficiary primarily performed qualifying 
duties while employed abroad. Not only are the beneficiary's duties so vaguely described that it cannot be 
discerned whether the beneficiary performed any qualifylng managerial or executive duties, the record also 
does not establish that the beneficiary was relieved of the need to perform non-qualifjmg tasks inherent to his 
vaguely ascribed duties by a subordinate staff. The petitioner failed to describe the duties of any of the staff 
members allegedly employed at the time the beneficiary worked abroad. Once again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Id. Absent descriptions of the foreign employer's organization and subordinate personnel, it 
cannot be concluded that it is more likely than not that the beneficiary primarily performed qualifylng duties 
abroad. Accordingly, it appears more likely than not that the beneficiary primarily performed non-qualifying 
administrative or operational tasks in his employment abroad. An employee who "primarily" performed the 
tasks necessary to produce a product or to provide services is not considered to have been "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. at 604. 
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees, or managed an essential function of the organization. As 
noted above, the record is devoid of evidence identifying the beneficiary's subordinates abroad, if any. 
Although the petitioner implies that the beneficiary routinely met with other managers or supervisors in the 
job description submitted in response to the Notice of Intent to Deny, the petitioner does not clearly aver, or 
establish, that the beneficiary actually "supervised" or "controlled" any of these subordinate workers. 
Furthermore, as the petitioner failed to describe the duties of any of these subordinate workers, the petitioner 
has failed to establish that any of these workers was truly a supervisory, managerial, or professional worker. 
Once again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190. 
Therefore, it cannot be concluded that any of these subordinate workers was truly a managerial or supervisory 
employee, and it appears that the beneficiary was, at most, a first-line supervisor of non-professional workers. 
LIN 06 215 51386 
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A managerial employee must have authority over day-to-day operations beyond the level normally vested in a 
first-line supervisor, unless the supervised employees are professionals. Section 101(a)(44)(A)(iv) of the Act; 
see also Matter of Church Scientology International, 19 I&N Dec. at 604. Finally, as the petitioner failed to 
establish the skills and education required to perform the duties of the subordinate positions, the petitioner has 
not established that the beneficiary managed professional employees.' Accordingly, the petitioner has not 
established that the beneficiary was employed abroad primarily in a managerial capacity.2 
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. 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 employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
1 
In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the 
subordinate positions required a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 8 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
While the petitioner has not argued that the beneficiary managed an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary managed an essential function, the petitioner must fUrnish a written job 
offer that clearly describes the duties performed in managing the essential function, i.e., identify the function 
with specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential function. See 8 C.F.R. §§ 8 C.F.R. § 204.56)(2) and (5). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
managed the function rather than performed the tasks related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties were primarily managerial. Also, as explained 
above, the record indicates that the beneficiary was, at most, a first-line supervisor of non-professional 
employees and primarily a performer of non-qualifymg tasks. Absent a clear and credible breakdown of the 
time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties 
were managerial, nor can it deduce whether the beneficiary was primarily performing the duties of a function 
manager. See IKEA US, Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Page 12 
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 the owner or sole 
managerial employee. The 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. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary acted primarily in an executive capacity. As explained above, the beneficiary's 
job description is so vague that it cannot be discerned what, exactly, he did on a day-to-day basis. Therefore, 
it appears more likely than not that the beneficiary was primarily employed, at most, as a first-line supervisor 
and that he primarily performed the tasks necessary to produce a product or to provide a service. Therefore, 
the petitioner has not established that the beneficiary was employed primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary primarily performed managerial or 
executive duties, and the petition may not be approved for that reason. 
The third issue in this proceeding is whether the petitioner provided sufficient evidence to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
The petitioner claims in the Form 1-140 to employ 20 people. However, the documents submitted with the 
petition indicate that the petitioner is actually claiming to employ 8 workers. The other 12 claimed workers 
are employed by two other businesses in which the petitioner claims to have an ownership interest. The 
petitioner, the entity that will employ the beneficiary, allegedly operates a gasoline station and convenience 
store called "n 
The petitioner submitted an organizational chart in support of its petition. The chart shows the beneficiary at 
the top of the organization supervising a vice president who supervises the three "presidents" of the three 
separate businesses, including -the president of 
 who is also the beneficia&. The beneficiary, as 
president of 0 is portra ed as su ervising a general manager ( who, in turn, 
supervises an assistant manager w, who, in turn, supervises cashiers and mechanics. The duties of 
the general manager are described as follows: 
Carry out daily shift works and check cashiers shifts and report them to management. 
Perform employees schedules. Check inventory and order vendors for required items. 
Report daily jobs & sales to management. 
The petitioner did not describe the duties of the assistant manager. 
On October 4,2006, the director issued a Notice of Intent to Deny in which he requested, inter alia, a detailed 
description of the beneficiary's duties in the United States, including a breakdown of "the approximate 
percentage of time spent on the various duties on a weekly basis," and a detailed description of the specific 
duties performed by each employee of the petitioner, including a "copy of the usual weekly work schedule." 
Page 13 
In response, the petitioner submitted a job description for the beneficiary as follows: 
Viewing of daily business detailed reports & employees performance reports 
presented by managers. Reports include daily gross sales status, daily tiers reports, 
individual department reports etc. 
Counseling and advises to managers on subjects like Daily Sales, Business 
enhancements tools, Image and standards, Staff activities, Employees schedules, 
Inventory requirement lists. 
Negotiating with all those small businesses who are trying to sell their businesses 
because of the lack of management and supervision but very potential targets. 
Meeting and talking to the partners and reviewing their problems and enhancement 
plans and than [sic] follow up timely basis on any discussed subject. 
Approvals of emergency and periodic leaves of employees and reviewing their 
eligibilities of such requests. 
Reviewing of promotions proposals presented by Managers according to daily 
performance reports. 
Out of office meetings and attending of annual meetings & Award Ceremonies. 
Discussing and consulting recent activities with Board of Directors. 
Enhancements plans and their potential research through market study[.] 
Finalizing hiring and firing applicants through manager's reports and physical 
meetings. 
Reviewing daily reports with Accountant and issue follow up to managers 
accordingly. 
Vendors representative meetings and studying of their products specifications and 
reviewing with managers about their requirements and acceptance in daily sale. 
Reviewing all daily documents like mail and faxes related to management and earlier 
sorted out by station managers. 
Follow up advises according to local authorities requirements. 
Physical visits of business in order to make sure they are in compliance according to 
Image & standard specifications as assured by managers. 
Monitoring business activities through vendor's issued reports. 
Monitoring financial activities. 
Discussions with lawyers on legal matters. 
The petitioner also submitted its quarterly wage report for the quarter immediately preceding the filing of the 
petition. This report indicates that the petitioner employed six people, including the beneficiary, in that 
quarter. 
The petitioner also submitted a more detailed job description for the "manager in charge," - 
as follows: 
1. 
 Cany out all daily routine shiR works. 
2. 
 Prepare daily sales report and check accordingly all activities carried out. 
Page 14 
3. 
 Check cashier's shifts and prepare report for any discrepancy. 
4. 
 Employees schedules and reporting of their activities, leaves, absences and promotions. 
5. 
 Check daily inventory and accordingly place orders through different vendors. 
6. 
 Schedules meeting with business partners and service providers. 
7. 
 [Prelpare hiring & firing recommendation report to management. 
8. 
 Follow incoming faxes and forward to concerned department. 
9. 
 Follow deliveries and post paid invoices to system and then prepare report for management. 
1 0. 
 Keep strict policy on Image related matters. 
The petitioner further indicates that works four days per week (Monday, Wednesday, Thursday, 
and Friday) from 8:30 a.m. until 4:00 p.m. 
The petitioner also submitted schedules for its remaining four employees. One cashier, 
 works 
from 5:30 a.m. until 1:30 p.m. on Monday, Tuesday, Thursday, Friday, and Sunday. The other cashier, 
works Monday through Friday from 1 :00 p.m until 8:30 p.m. The two automobile mechanics 
work together on Monday, Wednesday, Thursday, and Friday. One mechanic works alone on Tuesday, and 
the other works alone on Saturday. It is noted that the individual identified as an "assistant manager" in the 
organizational chart attached to the original petition is identified in the documents submitted in response to 
the Notice of Intent to Deny as an automobile mechanic. 
On March 20, 2007, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity. On April 23, 2007, the 
petitioner filed a motion to reopen and reconsider, and, on December 27, 2007, the director affmed his 
denial of the petition. 
On appeal, counsel claims that the beneficiary will perform qualifying duties in the United States. 
Upon review, counsel's assertions are not persuasive in establishing that the beneficiary will be employed in 
the United States in a primarily managerial or executive capacity. 
As explained above, in examining the executive or managerial capacity of the beneficiary, USCIS will look 
first to the petitioner's description of the job duties. See 8 C.F.R. $ 204.5(j)(5). The actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd, v. Suva, 724 F. Supp. At 1108, afd, 905 F.2d 
41. 
As a threshold matter, it is noted that the petitioner's claim that its enterprise employs 20 workers who are 
supervised, directly or indirectly, by the beneficiary is not supported by the record, and the AAO will only 
consider the petitioner's employment of the five additional workers described in the record in determining 
whether the beneficiary will be employed in a primarily managerial or executive capacity. The AAO will not 
consider the claimed employment of approximately 12 workers by 1 
. Not only are these workers not employed by the petitioner, 
the record is devoid of evidence establishing that the beneficiary will have any direct, or indirect, control over 
the employment of these workers. The beneficiary is not an employee of either of these purportedly related 
Page 15 
corporations, and the beneficiary's job description fails to specifically address his provision of services to 
these businesses. Accordingly, the employment of workers by these other businesses, absent some 
evidentiary nexus connecting the beneficiary's ascribed duties to these operations, is irrelevant to the instant 
petition. Once again, going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 
190. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will primarily act in a "managerial" or "executive" capacity. Once again, the petitioner has submitted a vague 
and non-specific job description which fails to sufficiently describe what the beneficiary will do on a day-to- 
day basis in his administration of the '- For example, the petitioner states that the beneficiary will 
review reports regarding sales, employee performance, and other personnel matters; advise managers; work 
on "enhancement plans;" meet with vendors; and review correspondence. However, the petitioner does not 
explain what, exactly, the beneficiary will do to "advise" subordinates or otherwise "manage" the gasoline 
station other than to act as a first-line supervisor of cashiers and mechanics. The petitioner has failed to 
establish that any of the ascribed duties is a bona fide managerial or executive duty. The fact that the 
petitioner has given the beneficiary a managerial or executive title and has prepared a vague job description 
which includes inflated job duties does not establish that the beneficiary will actually perform managerial or 
executive 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. At 1108, afd, 905 F.2d 41. Once again, going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 1 90. 
Moreover, as the petitioner failed to submit a breakdown of "the approximate percentage of time spent on the 
various duties on a weekly basis," even though this was specifically requested by the director in the Notice of 
Intent to Deny, the petitioner failed to establish that the beneficiary will "primarily" perform qualifying duties. 
Once again, 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; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 9 103.2(b)(14). 
Likewise, the petitioner has also failed to establish that the beneficiary will supervise and control the work of 
other supervisory, managerial, or professional employees, or will manage an essential fimction of the 
organization. As noted above, the petitioner claims that the beneficiary will supervise a "manager in charge" 
who, in turn, will supervise a number of subordinate cashiers and  mechanic^.^ However, the petitioner has 
not credibly established that the "manager in charge" will be a bona fide supervisory or managerial employee. 
3 
Although the petitioner claims in the original organizational chart that the manager in charge will supervise 
an assistant manager who, in turn, will supervise cashiers and mechanics, this assertion appears to have been 
abandoned as the individual identified as the assistant manager in the organizational chart is described as a 
mechanic in the response to the director's Notice of Intent to Deny. 
Page 16 
The "manager in charge" is not described as having supervisory or managerial control over subordinate 
workers in her job description. Moreover, the "manager in charge" appears to staff the gasoline station along 
with no more than one additional employee at any one time. It is not credible that the petitioner, a single 
location, six-employee gasoline station, would employ a subordinate supervisor or manager to supervise two 
part-time cashiers. An employee will not be deemed to be a supervisory or managerial worker simply 
because he or she is arbitrarily placed on an organizational chart in a position superior to other employees. 
Rather, it must be established that the employee exercises some degree of control over the employment of 
subordinates and that the reasonable needs of the organization compel the employment of a subordinate tier of 
supervisors or managers ultimately supervised and controlled by a primarily managerial or executive 
employee. In this matter, it appears more likely than not that the "manager in charge" and the other workers 
are all primarily performing the tasks necessary to the operation of the gasoline station, and the beneficiary 
will be, at most, the first-line supervisor of these workers. Once again, a managerial employee must have 
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the 
supervised employees are professionals. Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. Finally, as the petitioner failed to establish the skills or 
educational backgrounds required to perform the duties of the subordinate positions, the petitioner has not 
established that the beneficiary will manage professional employees. 
Accordingly, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity.4 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. As 
explained above, it appears more likely than not that the beneficiary will primarily perform the tasks 
necessary to produce a product or to provide a service and will act as a first-line supervisor of non- 
professional gasoline station workers. Therefore, the petitioner has not established that the beneficiary will be 
employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration 
Services, 469 F.3d 13 13, 13 16 (9" Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 
178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
4~hile counsel does not argue that the beneficiary will manage an essential function of the organization, the 
record would not support this position even if taken. As explained above, the record indicates that the 
beneficiary will more likely than not primarily perform non-qualifymg tasks and serve as a first-line 
supervisor. As the beneficiary will more likely than not primarily perform non-qualifymg, first-line 
supervisory tasks in his administration of the operation, it cannot be concluded that he will manage an 
essential function. See generally IKEA US, Inc. v. U. S. Dept. of Justice, 48 F. Supp. 2d at 24. 
Page 17 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties in the United States, and the petition may not be approved for that reason. 
As a final note, USCIS records indicate that the beneficiary has previously been approved for L-1 
employment with the instant petitioner. However, with regard to the beneficiary's L-1 nonimmigrant 
classification, it should be noted that, in general, given the permanent nature of the benefit sought, immigrant 
petitions are given far greater scrutiny by USCIS than nonimmigrant petitions. The AAO acknowledges that 
both the immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and 
executive capacity. See $8 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 1101(a)(44). Although the statutory 
definitions for managerial and executive capacity are the same, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. 
There are significant differences between the nonimmigrant visa classification, which allows an alien to enter 
the United States temporarily for no more than seven years, and an immigrant visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
as a United States citizen. CJ §§ 204 and 214 of the Act, 8 U.S.C. §$ 1154 and 1184; see also $ 316 of the 
Act, 8 U.S.C. 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and USCIS normally accords the petitions a less 
substantial review. See 8 C.F.R. 8 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to 
extend an L-IA petition's validity). Because USCIS spends less time reviewing Form 1-129 nonimmigrant 
petitions than Form 1-140 immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. 
Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30 (recognizing that USCIS approves some petitions in 
error). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude USCIS from denying an extension petition. See e.g. Texas AM Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way 
guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS 
denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; 
Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approvals would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593,597 (Cornm. 1988). It would be absurd to 
LIN 06 215 51386 
Page 18 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomely, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
In addition, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.