dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF JJST- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 27,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a wireless equipment and accessories retailer, seeks to permanently employ the 
Beneficiary as its general manager 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 denied the petition, concluding that the Petitioner did 
not establish, as required, that it will employ the Beneficiary in a managerial or capacity. The 
Director affirmed the denial after reviewing the Petitioner's subsequent combined motion to reopen 
and reconsider. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary will primarily 
perform duties in a managerial or executive capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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) ofthe Act. 
The Form l-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. § 204.50)(3). 
Matter of JJST- LLC 
"Managerial capacity'. means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A). 
"Executive capacity" is defined as an assignment within an organization in which the employee 
primarily: directs the management of the organization or a major component or function of the 
organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 10l(a)(44)(B) ofthe Act. 
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. Section 101(a)(44)(C) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In the denial decision, the Director found that the Petitioner did not provide a sufficiently detailed 
description of the Beneficiary's duties to demonstrate that he would be employed in a managerial or 
executive capacity. The Director also reviewed the Petitioner's organizational structure and the duty 
descriptions for the Beneficiary's claimed subordinates and found the evidence insufficient to 
establish that the Beneficiary's subordinates would adequately relieve him from performing 
operational tasks associated with the day-to-day operations ofthe business. 
On appeal, the Petitioner submits additional evidence and asserts that it has established that the 
Beneficiary's duties are primarily managerial or executive in nature, and comparable to those of a 
chief executive or general manager as described by the Department of Labor's O*Net Online 
occupational classification resource. 
The regulation at 8 C.F.R. § 204.5U)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be performed by the Beneficiary. Beyond the required description of the job 
duties, users reviews the totality of the evidence when examining a beneficiary's claimed managerial 
or executive capacity, including the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to understanding 
a beneficiary's actual duties and role in a business. Accordingly, our analysis of this issue will focus on 
the Beneficiary's duties as well as the Petitioner's staffing levels and reporting structure. 
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Matter of JJST- LLC 
A. Duties 
The Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial or executive capacity. Champion World. Inc. 
v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must 
prove that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USC!S, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner operates a cell phone equipment and accessories retail store known as ' 
" The Petitioner indicates that the Beneficiary, who holds an L-1 A nonimmigrant visa 
authorizing his employment with the Petitioner, also works and will continue to work for its claimed 
affiliate, , which operates a second store. However, the Petitioner 
is the intended permanent U.S. employer and it must show that it can support a managerial or 
executive position independent from its claimed affiliate, a separate legal entity that is not subject to 
the Petitioner's control. The Beneficiary may intend to perform duties for both entities, but cannot 
rely on his duties for the affiliate to establish his qualifying employment with the Petitioner. 
The Petitioner submitted the following description of the Beneficiary's duties at the time of tiling in 
October 2015: 
• Formulating the business development plans based on the information obtained by 
marketing research and the marketing demand. Make a business proposal for the 
next few years. Adjust the business plan and proposal according to the marketing 
condition. 1 0% 
• Direct the operations for the existing business with the strategies formulated by 
himself. Analyze operations to evaluate the performance of his company and 
coordinate the activities of each department in meeting the business development 
plan. 10% 
• Direct and coordinate the organization's financial or budget activities .... 
Review the performance after the cost reduction program processed to determine 
the budget for future operations, further business development, investment of 
more business locations . . . . 10% 
• Formulate the marketing improvement programs to determine the promotion 
policies and period in details to increase the business income. 5% 
• Formulate a service improvement program to develop the customer network, 
monitor the performance of the operations and adjust the service policies in case 
ofnecessity. 5% 
• Review and monitor the performance of the assistant manager and technical 
department manager. Has the authority to hire and fire the managerial persons 
and other employees. 1 0% 
• Contact with . 
. . governmental agencies in case of necessity to obtain the 
permissions from those government agencies, in order to operate a legitimate 
enterprise. 2% 
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Matter of JJST- LLC 
• Negotiate and contact with professional services for federal tax returns and state 
tax preparation and filing and for legal advice .... 3% 
• Negotiate the contracts and agreements with suppliers, distributors and other 
organizational entities for specific deals. Approve part of the agreements after the 
negotiation. 1 0% 
• Organize regular meetings with store assistant manager, and department manager 
to discuss the operational issues which occurred during the week. Confer with 
store assistant manager, and department manager to discuss urgent problems and 
complaints of the customers .... 10% 
• Confer with parent company to report the business conditions of the U.S. business 
activities and financial conditions regularly .... 10% 
• Looking for new business opportunity, analyze the new location and financial 
figures before purchasing a new business. 2% 
• Formulate direct and operate a new location, employ new operational manager, 
assistant and clerks for the new store. 7% 
• Make development plan and strategy for the cell phone service business to be a 
medium sized chain-store with 10 stores and 60 U.S. workers. Employer [sic] 
higher level managerial persons such [as] controller, inner accountants and public 
relationship and communication coordinator for the next 5 years. 6% 
The Petitioner has submitted a similar but "expanded version" of these duties on appeal in which it 
attempts to explain how the Beneficiary delegates certain work to subordinate store managers. For 
example, the Petitioner notes that he directs store managers to "develop the store operational plan," 
to prepare weekly reports for his review, and to "control the comprehensive budget." The Petitioner 
also adds a number of human resources-related tasks, such as producing the employee handbook, 
drafting employment and compensation policies, providing support to employees, overseeing the 
implementation of human resources policies, recruiting and selecting staff, ensuring appropriate 
training, and implementing performance management processes. 
In addition, the Petitioner expands upon the nature and frequency of the Beneficiary's meetings with 
store staff, noting that he has daily meetings with store managers to review sales performance, any 
problems that occurred, to discuss promotions, and to "direct the management person in charge of 
marketing" to report results for each promotion program. Overall, the Petitioner now indicates that 
daily, weekly, and monthly meetings with store managers and staff account for at least 30% of the 
Beneficiary's time. 
While the record on appeal now contains a very lengthy description of the Beneficiary's duties, the 
Petitioner has not established how the Beneficiary's duties will be primarily managerial or executive in 
nature. 
First, we note that the Petitioner's initial evidence included a recent business plan, dated August 
2015, which states that the Beneficiary is "also the current Store Manager" for its retail store. The 
business plan indicated that the store manager is required to hold daily meetings with employees, 
advise the general manager of items that need to be ordered, handle customer service issues, make 
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Matter of JJST- LLC 
daily cash deposits, monitor performance of sales personnel, work on the floor to sell handsets, 
accessories, and services, and send back returned merchandise authorizations. The Petitioner has not 
acknowledged the Beneficiary's role as store manager elsewhere in the record, but we note that both 
the store manager and assistant store manager assigned to the Petitioner's store have two job titles, 1 
which suggests that neither employee is assigned to the store manager role on a full-time basis. 
Further, the Petitioner's initial description of the Beneficiary's duties indicated that he would be 
supervising "assistant store managers" rather than "store managers" as indicated in a later version. 
We cannot determine based on the evidence submitted whether or how the Beneficiary would divide 
his time between the general manager role and the store manager role. The Petitioner must resolve 
this ambiguity in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Without clarification, we are left to question 
whether the breakdown of job duties the Petitioner provided for the general manager position 
accurately reflects how the Beneficiary actually spends his time. 
Further, while we recognize the Beneficiary's responsibility for managing the operation and overall 
development of the Petitioner's store, and his senior role within the petitioning company, some of 
the responsibilities assigned to him seem unlikely to be part of his regular daily routine. For 
example, the Petitioner indicates that he spends up to 25% of his time planning for the expansion of 
the business and opening additional stores, including time spent discussing these issues with the 
parent company. However, to the extent the Beneficiary performs this function, he appears to be 
performing it on behalf of the foreign parent company. The Petitioner itself has no stated plans for 
expansion beyond one location, and these duties are not assigned to him by the petitioning company. 
In addition, the Petitioner indicates that the Beneficiary is responsible for ordering inventory on a 
regular basis, monitoring the company's cash flow and administering its funds, implementing 
marketing programs, and is intimately involved in the routine day-to-day store operations based on 
the amount of time he spends meeting with staff to review daily sales and inventory issues. The 
Petitioner has not explained how these duties rise to the level of managerial or executive capacity as 
those terms are defined in the statute. As discussed further below, the Petitioner has not provided 
consistent information regarding how much authority the subordinate store manager/assistant 
manager have or whether these employees fully relieve the Beneficiary from involvement in the 
store's operational activities. 
On appeal, the Petitioner asserts that the Beneficiary's duties are comparable to those typically 
performed by chief executives or general managers according to O*Net Online. The regulations 
require the Petitioner to provide a detailed description of the Beneficiary's actual duties within the 
context of its day-to-day operations. His duties should be reasonable in light of the nature, scope, 
and purpose of that organization. Accordingly, comparing his job description to a general listing of 
job duties within a broad occupational classification does not assist us in understanding what the 
1 
The Petitioner indicates that the store manager also acts as a repair technician, while the assistant manager also acts in a 
sales role. The Petitioner employed both individuals as of August 2015 when the Petitioner stated in its business plan 
that the Beneficiary serves as both store manager and general manager. 
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Matter of JJST- LLC 
Beneficiary actually does or whether his actual duties have been primarily managerial or executive 
in nature. 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. II 03, II 08 
(E.D.N.Y. I989), aff'd, 905 F.2d 4I (2d. Cir. I990). 
Whether the broad duties attributed to the Beneficiary qualify as managerial or executive in nature 
depends in large part on whether the Petitioner established that he would have sufficient subordinate 
staff to supervise and perform the day-to-day company activities he is claimed to manage. As 
discussed further below, the Petitioner has not shown its ability to relieve the Beneficiary from 
significant involvement in the operational tasks required to operate its business. 
The fact that the Beneficiary will manage a business as its senior employee does not necessarily 
establish eligibility for classification as a multinational manager or executive. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" managerial or executive in 
nature. Section I 0 I (A)( 44) of the Act. Even though the Beneficiary may exercise discretion over 
the Petitioner's operations and possess authority with respect to discretionary decision-making, the 
position description alone is insufficient to establish his employment will be in a managerial or 
executive capacity. 
B. Staffing and Organizational Structure 
As noted, the Petitioner operates a cell phone equipment, service, and accessories store and provided 
evidence that its store is open daily for 71 hours per week. The Petitioner did not identify its current 
number of employees on the Form I-I40. The Petitioner submitted a letter from its foreign affiliate 
which indicated that the Petitioner and its U.S. affiliate together had eight workers as of August 20 I5. 
The Petitioner submitted 
an organizational chart showing a total of six employees at its store2 : 
General Manager 3 
(Beneficiary) 
I 
Manager/Repair Technician 
Sales/Software Technician 
) 
( ) 
Assistant Manager/Sales 
( ) 
Sales Representative 
( ) 
Sales 
2 
The chart also included three staff (an assistant manager and two sales representatives) employed by 
the Petitioner's claimed affiliate. 
3 As noted, the Petitioner's business plan stated that the Beneficiary also serves as store manager at this location. 
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Matter ofJJST- LLC 
The Petitioner's response to the Director's request for evidence included a chart that showed the 
same structure, with a different individual ( ) in the sales representative/software 
technician position. 
The Petitioner paid the following wages to its staff in 2015: 
Name 3rd Quarter 4th Quarter 2015 Form W-2 
Beneficiary $3000 $3000 $12000 
$9169.38 $9834.80 $21556.28 
$3000 $3000 $11000 
$5980.80 $306.30 $13272 
$6245.59 $6929.95 $13627.67 
$1500 $1500 $5500 
$0 $4210.70 $4210.70 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101 (a)( 44 )(A)(i) and (ii) of the Act. The Petitioner does not claim 
that the Beneficiary will act as a function manager, but does emphasize his responsibility for 
supervising subordinates. Personnel managers are required to primarily supervise and control the 
work of other supervisory, professional, or managerial employees. Contrary to the common 
understanding of the word "manager," the statute plainly states that a "first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional." 4 Section 101(a)(44)(A)(iv) ofthe Act. 
The Petitioner does not claim that the Beneficiary supervises subordinate professionals, but does 
depict two tiers of subordinates between him and the retail sales staff. Although the chart shows that 
the store manager supervises the assistant manager, the Petitioner stated that the store manager and 
assistant manager perform the same duties: 
1. Every morning have meeting with employees and talk about daily goals and 
specials. 
2. Make sure employees wearing uniforms and time clocks are correct and on time. 
3. Once a week make a list of missing accessories and needed items to give it to 
general manager so he can place an order. 
4. Customer service issues that sales people can't handle. 
4 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the Act, states that "[t]he 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." Here, the Petitioner does not claim that any positions 
subordinate to the Beneficiary require a bachelor's degree, nor has it submitted evidence of educational credentials for 
any subordinate staff. 
Matter (~f JJST- LLC 
5. Make daily cash deposits to the bank. 
6. Make sure register has a change. 
7. Once end of the month go through sales representative's performance to give 
them to general manager for bonuses and commissions that needed to be paid. 
8. Work on the floor to sale a handhelds, accessories or services. 
9. Once a week send back RMA's. 
10. If they have other job titles they will perform those duties also (i.e., duties of a 
sales representative or technician). 
As noted, the Petitioner indicated that the Beneficiary also acts as a store manager, the store 
manager also acts as a software technician, and the assistant manager also acts as a sales 
representative. While we do not doubt that the Beneficiary supervises all employees working at the 
Petitioner's store, there is insufficient evidence to establish that either the store manager or the 
assistant manager performs managerial or supervisory duties under the Beneficiary's oversight. 
Further, the Petitioner's claim on appeal that the store manager performs higher level duties such as 
developing a store operational plan, controlling budgets, and preparing weekly reports, is not 
consistent with earlier descriptions of the position and is insufficient to show that this position 
qualifies as managerial. Rather, the store manager appears to perform a number of non-supervisory 
tasks necessary for the store's operations. 
Overall, it appears that the Beneficiary and the two "managerial" subordinates likely share the store 
manager duties during the 71 hours per week the company is open, with one manager responsible for 
providing repair services when the other technician is not available, and the other responsible for 
performing sales work alongside the lower-level staff as needed. The Petitioner has not established 
that the Beneficiary will primarily supervise the work of managerial, supervisory, or professional 
staff as a personnel manager. 
The Petitioner claims, in the alternative, that the Beneficiary will be employed 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 managerial employees for a beneficiary to direct and they 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 he "directs" the enterprise 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." !d. 
The Beneficiary's overall authority over the company and discretion to select, hire, and supervise 
employees is noted, but the Petitioner has not established how he spends his time primarily on the 
broad policies and goals of the business, rather than participating in its day-to-day operations, 
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Matter of.J.JST- LLC 
particularly since it appears he spends an undisclosed portion of his time acting as store manager, as 
well as ordering inventory and performing other non-qualifying duties. The evidence does not 
support the Petitioner's claim that he would perform primarily executive duties for the petitioning 
company. 
Section 101(a)(44)(C) ofthe Act requires that USCIS must take into account the reasonable needs of 
the organization in light of the overall purpose and stage of development of the organization if 
staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity. 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-managerial or non-executive operations of the company. Family Inc. v. USCIS, 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
At the time of tiling, the Petitioner's staff included the Beneficiary, a store manager/repair 
technician, an assistant manager/sales person, a part-time sales person, a sales/technician, and one 
full-time employee dedicated to sales. The record shows that the Petitioner operates a 2052 square 
foot store that offers repair services in addition to sales of cell phones and cellular service, and 
reflects that most employees, including the Beneficiary, perform multiple roles in order to keep the 
business running on a day-to-day basis during its extensive operating hours. The Petitioner has not 
established that it requires the Beneficiary to primarily perform managerial or executive duties based 
on its staffing 
and current stage of development. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufficiently relieved from involvement in the day-to-day operations of the company, despite his 
senior position in the company hierarchy. Accordingly, the Petitioner has not met its burden to 
show that his duties would be primarily managerial or executive in nature as of the date of tiling. 
III. QUALIFYING RELATIONSHIP 
Although not addressed in the Director's decision, the Petitioner has not submitted sufficient 
evidence to establish that it has a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship," the Petitioner must show that the Beneficiary's foreign 
employer and 
the proposed U.S. employer are the same employer (a U.S. entity with a foreign 
office) or related as a "parent and subsidiary" or as "affiliates." See § 203(b )(1 )(C) of the Act; see 
also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The Petitioner claims it is a majority-owned subsidiary of the Beneficiary's last employer abroad. 
As evidence of its ownership, the Petitioner submitted: (1) a copy of its membership certificate no. 1, 
indicating that the foreign entity was issued 52% of the membership units in March 2013; (2) a 
partial copy 5 of a membership purchase agreement dated March 28, 2013, indicating that two 
individual sellers ( 1 agreed to sell their ownership interest to three parties (the 
5 
The Petitioner included page I and page 8 of this agreement, which appears to be eight pages long with an additional 
"Exhibit A." 
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Matter of JJST- LLC 
foreign entity and two individuals) for a total purchase price of $75,000; (3) minutes of a special 
meeting of members dated March 28, 2013, which indicates that the foreign entity and two minority 
owners contributed a total of $100 in exchange for their membership units; and ( 4) an unexecuted 
operating agreement dated April 1, 2013, which indicates that the foreign entity owns 52% of the 
petitioning company. The Petitioner also provided submitted copies of its federal tax returns for the 
years 2014 and 2015 , which identify the foreign entity as its majority owner. 
However, the record shows that the petitioning company was established in March 2008, five years 
prior to the foreign entity's claimed purchase , and it is unclear how it came to issue its first 
membership certificate in 2013. Although the submitted purchase agreement indicates that the 
previous members were it did not provide evidence showing that these 
individuals owned the company at the time of the sale. In fact, the Petitioner submitted a copy of its 
lease agreement, which was signed in September 2012 by a who identified himself 
as the Petitioner's member. It is unclear why this individual was not involved in the sale of the 
company ' s membership units in March 2013 if he was an owner. The record also shows that the 
company's original organizer was . and there is a document identifying him as the 
Petitioner's original sole member. Therefore , it appears that at least four people owned an interest in 
the company prior to the issuance of the first membership certificate in 2013. 
Based on the incomplete documentation submitted by the Petitioner and potential inconsistencies in 
the record regarding the actual ownership of the company at the time of the claimed acquisition by 
the foreign entity, additional evidence would be needed to show that the foreign entity acquired a 
majority ownership interest in the petitioning company. For this additional reason , the petition 
cannot be approved . 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that it the Beneficiary would be 
employed in the United States, in a managerial or executive capacity, or that it has a qualifying 
relationship with the Beneficiary's foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Matter of JJST- LLC, ID# 1108481 (AAO Mar. 27, 2018) 
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