dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-1-M-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent l)ecision of the 
Administrative Appeals Office 
DATE: MAY 25, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a retailer and wholesaler of clothing. shoes and accessories, seeks to permanently 
employ the Beneficiary as its president 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. § ll53(b)(l)(C). This classification allows a U.S. employer to 
pennanently 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 petttton, concluding that the record did not 
establish, as required, that: (I) the Petitioner has a qualifying relationship with the Beneficiary's 
foreign employer: (2) the Petitioner will employ the Beneficiary in the United States in a managerial 
or executive capacity; (3) the Beneficiary was employed abroad in a managerial or executive capacity; 
and (4) the Petitioner had been doing business in the United States for at least one year prior to filing 
the petition. 
On appeal, the Petitioner states that the Director erred on each of the four points identified above and 
did not carefully review all of the submitted evidence. 
Upon de novo review, we will withdraw the Director's determination with respect to the Petitioner's 
qualifying relationship. While the Director correctly noted a few apparent discrepancies in the 
record, he did not fully consider the Petitioner's explanations for these errors, which we find to be 
reasonable. Further, we find that the Petitioner has established by a preponderance of the evidence 
that the Beneficiary was employed in a managerial capacity abroad. However, the Petitioner has not 
overcome the two remaining grounds for denial. Accordingly. we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa available to a beneticiary 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 Stales in order to continue to render managerial or executive services to 
the same employer or to its subsidiary or aftlliate. Section 203(b )(I )(C) of the Act. 
Matter ofC-1-M- Inc. 
A United States employer may file Fom1 1-140, 1mmigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(l )(C) of the Act as a multinational executive or manager. This 
classification does not require a labor certification. 
The petition must include a statement from an authorized official of the petlttoning 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 fur at least one 
year. See 8 C.F.R. § 204.50)(3). 
II. DOING BUSINESS 
The Director found that the Petitioner did not submit sutflcient evidence to establish that it was 
doing business for at least one year prior to filing the petition on May 15, 2015. The Director noted 
that, while the Petitioner was able to provide utility bills and purchase invoices from throughout 
2014, the Petitioner did not show that it had been actively engaged in sales for a full year as of the 
date of filing. 
On appeal, the Petitioner points to its 2014 federal tax return indicating $194,400 in gross receipts or 
sales, and its 2015 income statement showing total revenue of $222,497. The Petitioner, assetiing 
that "it is indisputable that an essential part of doing business is the cost of doing business," suggests 
that the Director erred by not considering extensive evidence of its business expenses, including 
utility bills and supplier invoices dating back to the tirst quarter of2014. 
To establish that it is doing business for the purposes of this classilication, the Petitioner must 
demonstrate that it has been engaged in "the regular, systematic, and continuous provision of goods 
and/or services" since on or belure May 15, 2014. See 8 C.F.R. § 204.50)(2) (defining "doing 
business"). 
As the nature of the Petitioner's business is the retail and wholesale of clothing and accessories, the 
Director reasonably looked for evidence of the Petitioner's sales transactions. While the Petitioning 
company was established in September 2013 and it signed a lease in October 2013, the store it leased 
required substantial renovations. The Petitioner has stated that its store opened tor business on June 
20, 2014. The Petitioner's 2014 IRS Form 1120, U.S. Corporation Income Tax Return, was filed tur 
the period beginning June 20,2014 and ending December 31,2014, and the Petitioner marked on the 
furm that it was an "initial return." The Petitioner's 2014 income statement prepared by its 
accountant is also for the period from June 20 to December 31, 2014. 
We acknowledge that the Petitioner undertook substantial efturts and expenses to prepare its store 
for opening (including payment of rent utilities, renovation costs, inventory and equipment 
purchases, etc.) more than one year prior to the filing of the petition. While these activities are 
commonly understood to involve "business transactions;' the Petitioner was not engaged in the 
regular provision of goods or services, as required by the definition of "doing business," until June 
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lvlatter ofG-1-M- Inc. 
20, 2014, approximately 11 months prior to tiling the petition. Accordingly, we agree with the 
Director's determination that the Petitioner did not establish that it met this eligibility requirement. 
III. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director further found that the evidence of record did not establish that the Beneficiary would be 
employed in the United States in a managerial capacity. 1 This Director concluded that the Petitioner 
provided a vague position description for the Beneficiary and did not establish that it had sufficient 
staff to relieve the Beneficiary from significant involvement in operational and administrative tasks 
necessary for the company's operation. 
On appeal, the Petitioner asserts that the Director did not review the Beneficiary's job description in 
its entirety, misinterpreted the company's payroll records, and erred by finding that the Beneficiary's 
subordinate staff of six employees would be insufficient to support the day-to-day operational needs 
of the company. 
The definition of the term "managerial capacity" is "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 supervtsory, 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 lire 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. 
1 
The Director did not consider whether the Beneficiary would be employed in an executive capacity as defined at 
section \Ol(a)(44)(B) of the Act. As the Petitioner has consistently referred to the Beneficiary's offered positon as a 
managerial position, we will not address the requirements for establishing employment in an executive capacity. 
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Maller o(G-1-M- Inc. 
A. Duties 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial capacity. Champion Won' ct. inc. 1'. 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 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 provided the following description of the Beneficiary's proposed duties in response to 
the Director's request for evidence (RFE), noting that he has been performing these same duties 
since commencing employment with the company as an L-1 A nonimmigrant intracompany 
transferee in 2014: 
• Communicate and meet with Board of Directors. Implement policies, objectives, and 
goals, conferring with Board members and staft~ as necessary. For instance. 
Beneficiary presents annual budget and proposes changes. Beneficiary presents and 
explains any agreements that could be of material importance to the company . 
5% 
• Direct or coordinate [the Petitioner's] financial or budget activities to fund purchases, 
inventory, operations and sales of footwear, accessories or clothing to maximize 
investments or increase efficiency. Financial activities include: a) weekly monitoring 
of retail and wholesale sales (retail, junior wholesale, and full wholesale) b) weekly 
monitoring of cash flow and credit card deposits and fees c) meetings with Operations 
Manager to review financial matters. 15% 
• Analyze operations to evaluate performance of [the Petitioner] or its staff in meeting 
objectives or to detem1ine areas of potential cost reduction, program improvement or 
policy change. This responsibility includes the review of inventory control reports, 
quality control reports, returns/damage reports, repeat customer reports, prepared by 
Operations and Sales Manager. Also the evaluation of weekly sales report consumer 
trend analysis, and effectiveness of marketing strategies prepared by Sales Manager. 
... 15% 
• Represent company in all official matters including financial institutions, crvic, 
professional associations, public/private, vendors and suppliers. For example: 
Beneficiary has represented [the Petitioner] in the process of hiring the general 
contractor tor the interior renovation and remodeling of the physical premises and the 
process of permits and inspections .... 5% 
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}.;fatter ofG-f-},;f- Inc. 
• Nego tiate or app rove contracts or agreemen ts with supp liers, distributors , 
profe ssional subcontractors , gove rnm ent age ncies, credit card processi ng or other 
organi zations. Beneficiary has nego tiated and approved contr acts with commerc ia l 
credit card proces sing companie s, point of sa les softwa re package, inte rio r display 
design drafts and contra ct, profes siona l r eta iner s with accoun tant and attorney , etc. 
10% 
• Represent company in all commun ication s and negot mt1ons for the purchase of 
footwea r, accessories , and clothing and exclusivity agreem ents. Beneficiary travels 
to to se lect , order, inspect and purchase merc handise. 
10% 
• Assure that all local, State and Federal regulations are adhered to and followed 
includin g loca l operational tax es, export/s hippin g/custom s regulations , and the like. 
Benefic iary makes sure Ope rational manager compli es with Florida sa les tax 
reporting and payment requir ement s. Beneficia ry also rev iews wit h accoun tant the 
monthl y and quarterl y reporting and payment of pa yroll and Florid a UCT-6 taxes. 
10% 
• Direct, plan, implem ent policie s, long and short-term objec tives, strategies or 
activ ities to ensur e dev elopmen t of business locally the United States 
and abroad. . . . 5 % 
• Di rect or coordinate activitie s of depart ment heads co nce rned with pncmg, sa les, 
marketing, inventor y and quality control of footwear , accessor ies and clothing. 
Approve and oversee activities coord inated with businesses concerned with 
advertising, publicit y, promotion of products. Appro ved promotional campaigns via 
soc ial media , radio and TV. 10% 
• Review inventory status reports a nd restocking order s per vendor. Oversee the 
quality contro l of footwear , acce sso ries and clothin g offered by company to guara ntee 
the best ratio of qualit y-price in inventory. 5% 
• Oversee the impl eme ntation and performance of a reli ab le ... data sys tem running on 
depe ndab le equipment and backups. Oversee So ftwar e/Socia l Med ia Administ rato r 's 
management of point of sales software and data reports . Overs ee that all soc ial media 
.. . reflects the miss ion and sty le of [the Petitioner]. .. . 5% 
• Direct human resource s act ivities, the selection of man agers and staff, esta blishmen t 
of organization o f maj or departme nts an d oversee complia nce with gove rnment 
requireme nts. Determ ine and eva luate performance and skills of the personnel .... 
Conduct annu al perform ance rev iews. 5% 
5 
Maller ofG-J-,\4-lnc. 
The Director determined that the job description included a number of vague duties that the 
Beneficiary is unlikely to perform on a day-to-day basis and therefore did not provide sufficient 
insight into the nature of his actual duties and the time he spends performing individual tasks. On 
appeaL the Petitioner contends that the Director did not consider the job description in its entirety. 
The Petitioner provides a list of duties which excludes the specific duties to which the Director 
objected and emphasizes that the remaining duties. which account for 65% of the Beneficiary's time, 
are manageriaL 
Upon review, we agree with the Director's conclusion that the breakdown of the Beneficiary's duties 
provides inadequate insight into the nature of his day-to-day tasks and is not sufJicient to establish 
that he would allocate his time primarily to managerial duties 2 
We have considered the group ofjob duties the Petitioner describes on appeal as clearly manageriaL 
Two areas of responsibility accounting for 30 percent of the Beneficiary's time, indicate that he 
manages financial, inventory, purchasing and operational functions by allocating non-qualifying 
tasks such as preparing various reports and performing consumer trend analysis to his subordinate 
operations manager and sales manager. As discussed further below, the record reflects that the 
Petitioner did not employ the operations manager at the time of filing, the sales manager left the 
company right around the time of filing, and both positions, when filled, were held by part-time 
hourly workers and were not full-time professional positons as claimed. Therefore, the record did 
not establish that the Beneficiary would perform these oversight functions through subordinate 
managers or that he had subordinates to prepare reports for his review. 
The Petitioner indicates that the Beneficiary is responsible for negotiating the purchase of footwear, 
clothing, and accessories and is responsible for selecting, ordering, and inspecting merchandise. It is 
unclear how performing the company's purchasing function is a managerial-level duty and the 
Petitioner has not attributed any purchasing activities to other employees, raising questions as to 
whether this responsibility would reasonably require only I 0 percent of the Bendiciary's time. 
We do not doubt that the Beneficiary is the Petitioner's senior employee or that he has the 
appropriate level of authority to make policy decisions, to hire and fire staff. to determine the 
direction of the company, and to tinalize contracts and agreements with vendors, suppliers and 
contractors. However, as discussed further below, the record does not support a tinding that he 
would primarily perform managerial duties as opposed to engaging in ordinary operational and first­
line supervisory duties associated with a retail and wholesale business alongside the Petitioner· s 
other employees. 
2 
As noted by the Director, there were marked similarities between the posmon descriptions provided for the 
Beneficiary's U.S. and foreign positions. \Vhile \Ve withdrew the Director's finding that the Petitioner did not establish 
that that the foreign positlon was managerial, the Director's discussion of the foreign positon focused solely Oil the job 
duties and did not consider the substantial evidence in the record wilb regard to the nature, scope. and structure of the 
foreign entity. Wltile the evidence substantiates that the foreign entity was capable of supporling the Beneficiary in a 
managerial capacity, for the reasons discussed herein, the Petitioner has not shown that it will employ him in a qualifying 
capacity. 
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Matter o.fG -1-M- Inc. 
B. Staffi ng and Organization al Structure 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services 
(USC IS) rev iews the totalit y of the reco rd when exa minin g the claimed managerial or executi ve 
capacity of a beneficiar y, includin g the company 's organ izational structure, the duties of a 
beneficiary's subordinate employees, the pre sence of other emplo yees to relieve a beneficiar y from 
performing operational duties, the nature of the business, and any other factors that will con tribute to 
understa nding a beneficiary ' s actual duti es and role in a business. 
The Petitioner stated on the Form T-140 that it had six employees as of May 2015. fn response to the 
RFE, the Petitioner provided an organizat ional chart showing the s taffing and structure of the 
compan y as of the date of filing . The chart shows the Beneficiary 's direct subordinates as: ( 1) a 
full-time sales manager who "over sees sales associates and inven tory"; (2) a full-time operations 
manager who prepares reports of sales and activities and i s responsible for qual ity control and 
record s; and (3) a full-time admi nistrative ass istant who prepares "memos , letters o r doc uments. " 
The chm1 also depicts two full-tim e retail sales ass ociate s and a p art-tim e software/social medi a 
employee who "maintain[ s] computer program and updat e[s] soc ial media acco unts." The Petitione r 
stated that sales manager , operation s nlanage r, and social media positions require a bachelor ' s 
degree. 
The record contains a detail ed payroll report for April 2015 , copies of the Petitioner 's Florida 
quarterly wage repor ts for each quarter of 2015, and copies of fRS Forms W-2 for 20 15. The 
employees listed on the Petitioner organi zational chart received the followi ng wages: 
Title l stQ.20 15 AQril 20 15 2nd Q. 2015 2015 W-2 
Sales Manager $2,692.84 $8 17.60 $ 1,209 .60 $3,839.44 
Opera tions Mgr. $1 ,304.56 $0 $0 $1,304.56 
Sales Assoc. I $2,168.80 $854.96 $2,466.65 $5,701.75 
Sales Assoc. II $ 1,377 .52 $0 $0 $1 ,377.52 
Admin. Assist. $ 1,71 6.00 $880. 00 $2,897.88 $9,580.49 
Social M edia $ 1,909.20 $979. 00 $2,866.00 $9,260.20 
[Benefici ary] $ 15,000 $5,00 0 $ 15,00
0 $60,000 
One other person, j oined the compa ny during the first quat1er of 20 15 and worked for 
the Petitioner throughout the year, earnin g $6,030. The Petitioner did not include this individual in 
its organ izationa l chart although it appears it employed her at the time of ti ling. The Petitioner 
emplo yed four othe r workers in 20 15 who joi ned the company after fi ling and had year-end earni ngs 
betwee n $1,589 and $3,734. Based on the emp loyee hours listed on the monthly payroll reports , 
only the Benefici ary was work ing a full- time schedule in 2015 . 
Therefore, the supporting ev idence does not corroborate the information provided in the 
organizational chat1. T he operations manage r and one of the sa les asso ciates had left the co mpan y 
prior to May 20 15 w hen the petit ion was 1-iled, and it is unclear why the chart submitted with the 
petitio n did not depict the company's actual staffing struct ure. Further, based on the sales manage r' s 
7 
Matter ofG-I-A1- Inc. 
second quarter earnings, it appears that he likely left the company after the first half of May 2015. 
The Petitioner has not established that any of the subordinates held full-time positions; the low 
salaries are not attributable to part-year employment and employee turnover as suggested by the 
Petitioner. Further, although the Petitioner states that it employs subordinate "managers," the sales 
manager, operations manager and sales associates (when employed) all received the same hourly 
wage of $8.00. The evidence must substantiate that the duties of a beneficiary and his or her 
subordinates correspond to their placement in an organization's structural hierarchy. The Petitioner 
has not resolved these inconsistencies in the record with independent, objective evidence pointing to 
where the truth lies. Maller ofBo, 19 f&N Dec. 582, 591-92 (BfA 1988). 
The statutory definition of "managerial capacity" allows for both "personnel managers., and 
"function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. 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 stales 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." Section 204.5(j)(4)(i) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 204.5(j)(2). 
Here, the Petitioner indicates that the Beneficiary wi II oversee two subordinate supervisors or 
managers -the operations manager and the sales manager. As noted, the operations manager was no 
longer with the company as of April 2015, and the sales manager appears to have left during May 
2015. Further, the record does not show any difference in wages between the operations manager, 
sales manager and the retail sales staff, which raises questions regarding the claimed supervisory or 
managerial nature of these positions. Finally, the positions descriptions provided for these positions 
were so brief that we cannot determine whether either position could accurately be characterized as 
managerial or supervisory in nature. 
The Petitioner also claims that the sales manager. operations manager and software/social media 
positions require a bachelor's degree, and provided evidence that these employees had degrees in 
municipal administration, accounting, and French/computer and information science studies, 
respectively. 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 101(a)(32) of the Act. states that "[t]he tem1 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
Therefore, we must focus on the level of education required by the position, rather than the degree 
held by subordinate employee. The possession of a bachelor's degree by a subordinate employee 
does not automatically lead to the conclusion that an employee is employed in a professional 
capacity. The Petitioner did not submit sufficient information to establish that a bachelor's degree 
8 
i\1atler o[G-I-1\1- Inc. 
would be required to oversee retail sales and inventory or to update social media accounts. Thus, the 
Petitioner has not shown that the Beneficimf s subordinate employees are supervisory, professional, 
or managerial employees, as required by section I 0 I (a)( 44)(A)(ii) of the Act. 
The Petitioner has neither claimed nor established, in the alternative, that the Beneficiary will be 
employed primarily as a "function manager" whose managerial role arises not from supervising or 
controlling the work of a subordinate staff but instead from responsibility for managing an "essential 
function" within the organization. See section I 0 I (a)( 44 )(A)( ii) of the Act. The statute and 
regulations do not define the term "essential function." lf a petitioner claims that a beneficiary will 
manage an essential function, that petitioner must clearly describe the duties to be 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 dedicated to 
managing the essential function. See 8 C.F.R. § 204.5(j)(5). In addition, the description of a 
beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than 
perform the duties related to the function. 
In this instance, the Beneficiary's job description, as discussed, lacks suiTicient detail to establish 
that he would primarily performs managerial duties and due to inconsistencies in the record 
regarding the structure of the company, it is difficult to determine how the company's non­
managerial purchasing, sales, administrative and other operational tasks would be distributed among 
the Petitioner's employees, so that the Beneficiary could focus on primarily managerial duties. 
The Petitioner correctly observes that we must take into account the reasonable needs of the 
organization and that a company's size alone may not be the only factor in denying a visa petition 
for classification as a multinational manager or executive. See section l 01 (a)(44)(C) of the Act. 
However, it is appropriate for USC IS 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 or a "shell company" that does not conduct 
business in a regular and continuous manner. Family Inc. v. USCJS, 469 F.3d 1313 (9th Cir. 2006); 
Sys/ronics Corp. v. INS. !53 F. Supp. 2d 7. 15 (D.D.C. 200 !). The size of a company may be 
especially relevant when USCJS notes discrepancies in the record. See Syslronics, 153 F. Supp. 2d 
at 15. 
As noted, there were discrepancies between the Petitioner's claimed and actual staffing levels at the 
time of filing. The Petitioner clearly did not employ the staff of one part-time and five full-time staff 
members depicted on the organizational chart, and did not establish that it employed two subordinate 
managers or supervisors to relieve the Beneficiary 11·om involvement in the day-to-day operations 
and first-line supervisory functions of its retail and wholesale business. Based on the staffing levels, 
it is reasonable to believe that all employees, including the Benel1ciary, would need to perform 
operational and administrative tasks related to purchasing, import, sales, and inventory in order to 
keep the store open for business. The reasonable needs of the Petitioner will not supersede the 
requirement that the Beneficiary must be "primarily" employed in a managerial capacity, spending 
his time primarily on qualifying duties. See sections 10l(a)(44)(A) and (B) of the Act. 
9 
Matter ofG-1-lvf- Inc. 
For the above reasons, the Petitioner has not established that the Beneficiary will be employed in a 
managerial capacity in the United States. 
IV. CONCLUSION 
The appeal is dismissed because the Petitioner did not submit the necessary evidence to establish 
that it had been doing business for one year prior to tiling the petition or that it would employ the 
Beneficiary in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fG-1-M- Inc., !D# 350664 (AAO May 25. 2017) 
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