dismissed EB-1C Case: Retail

(b)(6)
DATE: OFFICE: TEXAS SERVICE CENTER 
MAY 2 8 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your ·case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might 
have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~;(&__ 
1-Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
(b)(6)
Page 2 
DISCUSSION: The Director, Texas Service Center denied the preference visa petition and 
dismissed the petitioner's subsequent motion to reconsider. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Georgia limited liability company that seeks to employ the beneficiary as its 
executive. 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. 
In suppo11 of the Form I-140, the petitioner submitted a letter dated April 30, 2011 , which contained 
relevant information pertaining, in pmt, to the beneficiary 's employment with both the petitioning 
entity and the foreign employer. The petitioner also provided supporting evidenc e in the form of 
business and financial documents pertaining to the beneficiary' s U.S. and foreign employers . 
The director reviewed the petitioner's submissions and determined that the petition did not warrant 
approval. The director therefore issued a request for evidence (RFE) dated January 28, 2012, 
informing the petitioner of various evidentiary deficiencies, and requestin g that it provide more 
detailed information regarding the beneficiary's proposed duties, an updated detailed organizational 
chart, additional information regarding duties performed by subordinate employees , and evidence of 
wages paid to employees. The director also requested similar evidence to establish that the 
beneficiary was employed in a qualifying manageri al or executive position abroad for the petitioner's 
claimed affiliate. 
In response to the RFE, the petitioner provided supplemental evidence including an additional job 
description for the beneficiary 's position with both the U.S. petitioner and the foreign employer and 
some tax and payroll documents. The petitioner resubmitted many previously submitted documents 
including undated organizational charts. 
On April 25, 2012 the director denied the petition concluding that the petitioner failed to establish 
that the beneficiary had been employed abroad or would be employed in the United States in a 
qualifying managerial or executive capacity . In denying the petition , the director determined that the 
petitioner failed to submit a sufficiently detailed description of the beneficiary's duties and failed to 
establish that he has sufficient personnel to relieve him from performing the non-managerial 
functions of the petitioner's retail business. Furthermore , the director found that the record did not 
establish the beneficiary's foreign employment in a managerial or executive capacity because it 
appeared the beneficiary served as a first-line supervisor of non-professional s. The petitioner filed a 
timely motion to reconsider, and the director dismi ssed the motion without disturbing the initial 
denial. 
On appeal, counsel asserts that tl1e director' s decision was arbitrar y and the reasoning inconsistent. 
Counsel states that the director failed to properly review the evidence of record and failed to explain 
why the evidence by itself and when viewed in its totality failed to meet the preponderance of the 
evidence standard . Counsel submits a legal brief in support of the appeal. 
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The AAO finds that counsel's assertions are not persuasive and thus fail to overcome the director's 
adverse decision. A comprehensive analysis of the AAO's findings is provided in the discussion 
below. 
I. The Law 
Section 203(b) of the Act states, in pertinent part: 
(l) 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 firm 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 or managers 
who have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of 
that entity, and 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 I-140 for classification of an alien under section 
203(b )(1 )(C) of the Act as a multinational executive or manager. No labor certification is required for 
this 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. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § ll01(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 personnCl 
actions (such as promotion and leave authorization) or, if no other employee is 
(b)(6)
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directly supervised, fw1ctions 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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
II. The Issues on Appeal 
A. U.S. Employment in a Managerial or Executive Capacity 
The first issue to be addressed is whether the petitioner established that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
The AAO gives primary consideration to the petitioner' s description of the beneficiary's proposed 
position, as a detailed description of the beneficiary 's actual daily tasks tends to reveal tl1e true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), a.ffd, 905 
F.2d 41 (2d. Cir. 1990). The AAO also gives ample consideration to the job duties of the 
beneficiary's subordinate employees, the nature of the petitioner's business, the employment and 
remuneration of employees, and any other facts that contribute to a comprehensive understanding of 
the beneficiary's actual role in a business. 
In support of the Form I-140 filed on December 27, 2011, the petitioner provided a letter dated April 
30, 2011 which included position descriptions for the beneficiary, a manager, an assistant manager 
and the cashier/clerks for the petitioner's gas station and convenience store business. The petitioner 
listed nine general responsibilities for the beneficiary and indicated a percentage of his time to be 
spent on each, as follows: 
Set corporate financial goals and objectives. (10%) 
Company representative on all tax and legal matters. (5%) 
Procure and invest corporate funds. (20%) 
Analyze the Market for gasoline cost, availability and demand. (5%) 
Review cost analysis, market survey, and other reports prepared by accountant. (15%) 
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Authorize expenditures for costs related to direct services/products. ( 15%) 
Authorize expenditures for costs related to subcontracted services/products. (15%) 
Negotiate, execute contracts and lease purchases. (1 0%) 
Oversee Managerial and subordinate Staff. (10%) 
In a separate statement, the petitioner further described the beneficiary's duties as follows: 
President 
Managing the store 
Analyze the market for gasoline cost, availability and demand 
Authorize expenditures for costs related to subcontracted services/products 
Handling payroll for all of his employees 
Making sure all adequate taxes are paid 
Give opportunity to people including Hearing [sic] new employees 
Making sure all the bank deposits are been [sic] made on timely manner 
Overlooking the staff and maintaining discipline 
Looking for areas of improvement 
Most important customer satisfaction 
In response to the RFE, instead of providing additional details regarding the beneficiary's duties 
already provided, as requested by the director, the petitioner offered an undated letter with another 
list of the beneficiary's duties indicating that such duties require 40 hours of his time per week. This 
third duty description is as follows: 
I. Store Management: Establish & direct company goals and policies. 
• Responsible for overall appearance of the sales environment, including 
internal and external appearance and safety and compliance with all codes and 
regulations. Must regularly inspect and monitor front and back of store, fuel 
areas, imd the like, assign and review. 
• Responsible for overall placement of regular and promotional merchandise, 
execution of special promotions. Liaise with food, tobacco, and fuel vendors. 
Must be familiar with competitors, with customer preference, with traffic 
patterns. 
• Responsible for security and shortage policies. 
• Personnel administration. Overall HR monitor of staffing, hiring and firing. 
• Development of policies that comply with Fair and Legal Employment Act. 
• Develop and implement, monitor dress odes [sic], auditor duties, harassment 
policies, nondiscrimination policies, emergency procedures. 
• Implement and supervise regular staff meetings to ensure best performance by 
employees. 
II. Financial administration. 
• Anticipate product trends and react with strategic purchase of appropriate 
merchandise. 
(b)(6)
Page6 
• Communicate with vendors about sales analysis, price negotiation s and sell­
through mark-down issues. 
• Apply the elements of financial forecasting and allocation. 
• Identify stock issues and opportunities, maintain appropriate assortment and 
stock levels, actual vs. plan. 
• Review all sales data and cost data. 
• Prepare reports for analysis to maximize net profit. 
• Monitor payroll, tax issues. 
Based on the various descriptions provided, it is unclear what duties the beneficiary would perform 
on a day-to-day basis. The initial duty description provided percentages of time allocated to a 
variety of duties for the beneficiary but the third description provided in response to the RFE 
conflicted with the first. The AAO is not in a position to determine which position description most 
accurately reflects the beneficiary's actual duties. 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). 
Further, the description provided in response to the RFE includes types of duties that would not fall 
within the larger categories of duties contained in the first description. Moreover, many managerial 
type duties included in the first description are not reflected in the third description . The 
descriptions are different and the third one has no specific amount of time allocated to any of the 
duties and many of the duties are non-qualifying. The petitioner further confused the matter by 
asserting that the duties in the third description accounted for the full 40 hour work week suggesting 
that it was a comprehensive description. Given the conflicting documents , it is unclear how the 
beneficiary would spend his time. The first description included duties involving supervisory and 
management tasks whereas the third description included many tasks consistent with direct daily 
oversight and operations. Duties requiring the beneficiary's involvement with providing a service or 
product such as inspecting and monitoring the store, purchasing merchandise or preparing reports are 
not managerial or executive tasks. 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 (requiring that one 
"primarily" perform the enumerated managerial or executive duties) ; see also Matt er of Church 
Scientology Int'l., 19 I&N Dec. 593, 604 (Comm'r 1988). 
As noted above, beyond the required description of the job duties, USCIS reviews the totality of the record 
when examining the beneficiary's claimed managerial or executive capacity, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's actual duties 
and role in a business. 
According to the Form 1-140, the petitioner indicated it currently had 15 employees but it also 
indicated that the number of employees "may vary." In support of the petition, the petitioner also 
provided an undated organizational chart with 15 employees . The chart placed the beneficiary at the 
top and identified him as the ''executive manager." Three named individuals were depicted as 
directly subordinate to the beneficiary and they held the positions of accounting/finance, assistant 
(b)(6)
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manager and inventory management. The chart further showed that three named shift managers and 
eight named employees were subordinate to the assistant manager. The lower-level staff included 
four cashiers, two security employees, one maintenance employee and one deli department 
employee. 
The chart was accompanied by brief position descriptions for the following employees: 
(accounting manager); (inventory manager); (assistant manager); 
(assistant manager); (assistant manager); and (cashier). The AAO 
notes that and are both identified as "shift manager" on the chart. 
In the RFE, the director instructed the petitioner to provide a detailed organizational chart including 
names, job titles, educational levels, number of hours worked and brief descriptions of job duties for 
all employees. The director also requested evidence of wages paid to employees including copies of 
IRS Forms W-2, Wage and Tax Statement, and IRS Forms 941, Employer's Quarterly Federal Tax 
Returns, for 2011. 
In response to the RFE the petitioner re-submitted the same organizational chart provided at the time 
of filing. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.P.R. § 103.2(b)(14). Accompanying the organizational chart 
with 15 named employees, the petitioner submitted copies of its IRS Forms W-3, W-2 and 941 for 
2011. While this evidence reflects that the petitioner paid a total of 14 workers in 2011, the 
petitioner's IRS Form 941 and Georgia Employer's Quarterly Tax and Wage Report for the fourth 
quarter indicate that the petitioner had only four employees in the month of December 2011 when 
the petition was filed, and only five employees during the months of October and November 2011. 
Specifically, during the fourth quarter of 2011, the petitioner paid wages to the following 
individuals: 
Employee Name Wage reported in Organizational Chart - Position 
4th Quarter of 2011 
$2,900.00 Accounting/Finance 
$2,000.00 Shift Manager 
- $ 500.00 Inventory Management 
Beneficiary $10,500.00 Executive Manager 
$1,950.00 None 
I $3,000.00 None 
The petitioner offered no explanation for its submission of an organizational chart with 15 employees in 
December 2011 at a time when the company had only four employees on staff. Moreover, six of the 15 
employees identified in the chart did not receive wages from the petitioner at all in 2011. The chart 
clearly did not represent the petitioner's actual staffing levels at the time of filing or at the time it 
responded to the RFE in March 2012. 
Only on appeal does the petitioner acknowledge that only four individuals, including the beneficiary, 
were employed at the time the petition was filed. The petitioner explains that both prior to and after 
filing the petition, the company had more employees. However, a petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or 
(b)(6)
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beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm'r 1971). 
Further, the petitioner has not supported its claim that the petitioner experienced only a temporary 
decline in its staffing levels, as it did not submit copies of any Federal or state quarterly returns for 
any other quarters of 2011 or any 2012 documentation. While the AAO recognizes that a retail 
store may experience turnover among its hourly employees, the petitioner has not provided any 
reasonable explanation for its statement 
on the Form I-140 that it approximately 15 employees when 
it actually had only four, nor has it explained why it submitted an organizational chart with 15 
named employees when most of those employees were not actually working for the company . 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. !d. at 
591. 
Based on the information provided it is unclear exactly which four employees were employed at the 
time the petition was filed. Also, in view of the low wages paid to some of the workers, it is unclear 
whether the employees were full time, part time or intermittent workers. Nevertheless, the one 
employee responsible for managing the employees and performing many of the daily operational 
activities was identified as the assistant manager and the individual identified in that position on the 
organizational chart was not employed with the petitioner during the 4th quarter when the petition 
was filed. Furthermore, the shift manager's wages do not reflect full time employment and since the 
claimed assistant manager was not employed by the petitioner at the time the petition was filed it is 
unclear who else would perform the assistant manager's duties in his absence. 
In support of a previous motion to reopen or reconsider the director's decision, the petitioner 
submitted a professional opinion letter from Professor of the 
at the Professor opined that the beneficiary 
functioned in a managerial position as a "Financial Manager" with the foreign company and would 
serve in a managerial position with the U.S. petitioner. In support of his opinion, Professor 
recited duty descriptions attributed to the beneficiary. Notably, Professor opinion attributed 
duties to the beneficiary that were not reflected in the record and he based his opinion on the 
petitioner's unsupported claim that it has a 15-person staff. Therefore, Professor opm1on 
relied, in part, on inaccurate information and evidence outside of the record. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron Int'l., 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility. !d.; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expett 
opinion testimony does not purport to be evidence as to "fact"). USCIS may even give less weight 
to an opinion that is not corroborated or is in any way questionable. Matter of Caron Int'l., 19 I&N 
Dec. at 795. 
(b)(6)
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As noted by the director, the petitioner has not established that it is adequately staffed to ensure the 
beneficiary is free to primarily perform managerial and executive duties. With a total of four 
employees including the beneficiary, the petitioner has failed to explain why its business requires the 
services of someone who will primarily perform managerial or executive level tasks or how it is 
successfully able to relieve the beneficiary from having to perform daily operational tasks. The 
petitioner failed to adequately establish the nature of company's work force at the time the petition 
was filed in order to allow an understanding of the beneficiary's actual duties on a day-to-day basis. 
While performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify the beneficiary as long as those tasks are not the majority of the 
beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary IS 
"primarily" performing managerial or executive duties. Section 101(a)(44) of the Act. 
Counsel correctly asserts that company size alone, without taking into account the reasonable needs 
of the organization, may not be the determining factor in denying a visa to a multinational manager 
or executive. See§ 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate 
for U.S. Citizenship and Immigration Services (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 operations of the 
company, or a "shell company" that does not conduct business in a regular and continuous manner. 
See, e.g. 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). The size of a company may be especially relevant when USCIS notes 
discrepancies in the 
record and fails to believe that the facts asserted are true. !d. In this matter, it is 
the petitioner's burden to establish that the beneficiary would be functioning in an executive or 
managerial capacity. The petitioner has not met that burden. 
In addition, counsel's assertion on appeal that the director failed to properly apply the correct 
standard is not persuasive. In visa petition proceedings, the burden is on the petitioner to establish 
eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner 
must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit 
sought. Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the 
applicant's claim is "probably true," where the determination of "truth" is made based on the factual 
circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) 
(citing Matter of E-M~, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In evaluating the evidence, the 
truth is to be determined not by the quantity of evidence alone but by its quality. !d. Thus, in 
adjudicating the application pursuant to the preponderance of the evidence standard, the director 
must examine each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to determine whether the fact to be 
proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and 
credible evidence that leads the director to believe that the claim is "probably true" or "more likely 
than not," the ,applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo­
Fonseca, 480 U.S. 421 (1987) (discussing "more likely than not" as a greater than 50 percent 
probability of something occurring). If the director can articulate a material doubt, it is appropriate 
for the director to either request additional evidence or, if that doubt leads the director to believe that 
(b)(6)
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the claim is probably not true, deny the application or petition. In this matter, the director properly 
requested additional evidence but found the evidence to be inconsistent and insufficient to support 
the claim. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality 
of the record, including descriptions of a beneficiary's duties and his or her subordinate employees, 
the nature of the petitioner's business, the employment and remuneration of employees, and any 
other facts contributing to a complete understanding of a beneficiary's actual role in a business. The 
evidence must substantiate that the duties of the beneficiary and his or her subordinates correspond 
to their placement in an organization's structural hierarchy; artificial tiers of subordinate employees 
and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or managerial position. An individual whose primary duties are 
those of a first-line supervisor will not be considered to be acting in a managerial capacity merely by 
virtue of his or her supervisory duties unless the employees supervised are professional. Section 
101(a)(44)(A)(iv) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. Instead, the record indicates that the 
beneficiary or the beneficiary's subordinates perform the actual day-to-day tasks of operating the fuel 
and convenience store. · The petitioner has not provided evidence of an organizational structure 
sufficient to elevate the beneficiary to a supervisory position that is higher than a first-line supervisor 
of non-professional employees. Pursuant to section 101(a)(44)(A)(iv) of the Act, the beneficiary's 
position does not qualify as primarily managerial or executive under the statutory definitions. 
Based on the petitioner's failure to provide a consistent, detailed description of the beneficiary's 
duties and its inability to document the company's claimed organizational structure, it has failed to 
establish that the beneficiary would be employed in a primarily managerial or executive capacity. 
Accordingly, the appeal will be dismissed. 
B. The Beneficiary's Foreign Employment 
The second issue addressed by the director is whether the beneficiary was employed by the foreign 
employer in a managerial or executive capacity. The director found that based on the beneficiary's 
duty description, and the qualifications and requirements of the employees subordinate to him, that 
the beneficiary performed, at most, as a first-line supervisor of non-professional workers. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). Despite the beneficiary's 
stated position as "general manager," in a letter dated April 30, 2011 the petitioner stated that the 
beneficiary was responsible for financial management. In particular, he was required "to prepare all 
financial reports, to manage the cash f1ow of the business, to develop financial strategies to 
maximize our financial position, and to help us manage our financial resources in order to achieve 
maximum profits." His duties were listed as follows: 
• Review income and expenses and compare to prepared budget: 5 hours per 
week; 
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• Review income and expenses, compile and prepare data, analysis and reports 
for senior manager, including projections, balance sheets, p/1 statements: 15 
hours per week; 
• Review income and expenses, authorize expenditures in accordance with or 
beyond budget: 5 hours per week; 
• Establish and control accounting procedures: 5 hours per week ; 
• Supervise payroll duties: 5 hours per week; 
• Develop and direct pricing/sales, credit and collection policies for vendors and 
customers: 5 hours per week. 
In a subsequent undated letter provided in response to the RFE, the petitioner further detailed many 
duties above and listed them under the headings "Review income, expenses: 25 hours per week" ; 
"Establish and control accounting procedures: 5 hours per week"; "Supervise payroll duties: 5 hours 
per week"; and "Develop and direct pricing/sales, credit/collection policie s for vendors & customers: 
5 hours per week." Despite an allocation of hours assigned to each of the four headings, the 
individual tasks under the headings were not assigned an allocation of time. Many of the tasks were 
non-qualifying , with at least one non-qualifying duty under each heading making it impossible to 
determine if the beneficiary was primarily engaged in managerial or executive duties. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document what proportion of the 
beneficiary's duties would be managerial functions and what proportion would be non-managerial. 
The petitioner listed the beneficiary's duties as including both managerial and administrative or 
operational tasks and failed to adequately quantify the time the beneficiary spent on them . This 
failure of documentation is important because several of the beneficiary's daily tasks already noted 
do not fall directly under traditional managerial duties as defined in the statute. For this reason, the 
AAO cannot determine whether the beneficiary was primarily performing the duties of a manager. 
See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Notwithstanding the description above, the petitioner provided an organizational chart that 
identified the beneficiary as "general manager." The petitioner stated that the beneficiary reported 
only to the top executive and that three senior-level employees reported directly to the beneficiary. 
The three employees included a sales executive, a supervisor and an accountant/cashier. The 
beneficiary's curriculum vitae rei1ected his work experience while employed with the foreign 
company as a general manager and it stated that he was "[m]ainly responsible to manage and 
organize administrative procedures and review evaluate and implement new procedures along with 
other duties." 
Despite the petitioner's assertion that the beneficiary held the position of a "general manager" the 
petitioner also submitted evidence that described the beneficiary's area of responsibility as financial 
management. Titles aside, the beneficiary's duties as listed by the petitioner do not mention the 
actual supervision or management of any personnel. Only the supervisor's undated curriculum vitae 
relates that he "reported to the general Manager." 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). 
(b)(6)
Page 12 
As noted by the director, although the beneficiary is not required to supervise personnel, if it is 
claimed that his duties involved supervising employees, the petitioner must establish that the 
subordinate employees were supervisory, professional, or managerial. See§ 101(a)(44)(A)(ii) of the 
Act. Evidence provided by the petitioner establishes that the sales executive's duties were focused 
on sales related activities which did not include managing or supervising others. The 
accountant/cashier employee's tasks indicate he performed cashier duties such as issuing receipts and 
change to customers, maintaining the cleanliness of the checkout area, and processing merchandise 
returns and credits. Finally, according to the petitioner, the supervisor's duties included monitoring 
shelf stock and displays, recording sales and order information, and customer development. The 
petitioner had not shown that any of these employees supervise subordinate staff members or 
manage a clearly defined department or function of the petitioner, such that they could be classified 
as managers or supervisors. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the 
field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), 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." 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'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N 
Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the 
degree held by subordinate employee. The possession of a higher education degrees by a 
subordinate employee does not automatically lead to the conclusion that an employee is employed in 
a professional capacity as that term is defined above. In the instant case, the petitioner has not, in 
fact, established that a bachelor's degree is actually necessary, for example, to perform the executive 
sales position or the supervisor position although both of these individuals claim higher degrees. The 
director found, and the AAO agrees, that the petitioner failed to establish the educational 
requirements of the beneficiary's subordinates in order to qualify them as professionals. Therefore, 
the petitioner has not shown that the beneficiary's subordinate employees are supervisory, 
professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
Alternatively, the director requested evidence to establish the beneficiary as a functional manager. 
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, 8 U.S.C. § 1101(a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that 
clearly describes 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 attributed to managing the essential function. See 8 C.P.R. § 
204.5(j)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the 
(b)(6)
Page 13 
function. 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 (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Boyang, Ltd. v. l.N.S., 67 F. 3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International , 19 I&N Dec. at 
604. 
As noted by the petitioner, the beneficiary's duties for the foreign company primarily involved 
financial management. Despite the identification of the beneficiary as "general manger" it appears 
that the beneficiary was responsible for overseeing the foreign entity' s financial and accoun ting 
activities. Yet, the petitioner has not named any workers employed for the purpo se of performing 
the functions the beneficiary is claimed to have managed. Whil e the petitioner noted the 
employment of ::m accountant/cashier on the organizational chmt subordinate to the beneficiary, the 
beneficiary's own inconsistent duty descript ions and the lack of a duty description for the 
accountant/cashier do not support the beneficiary's role as a fw1ction mmwger. Rath er, the 
beneficiary's description suggests the beneficiary performed the accounting and finance function 
rather than managing it. 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 10l(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 
Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
Accordingly , the petitioner has not established that the beneficiary was employed in a primarily 
executive or managerial capacity with his foreign employer. For this additional reason, the appeal 
will be dismissed. 
C. Qualifying Relationship 
Beyond the director's decision, the petitioner has not 
established that it has a qualifying relationship 
with the beneficiary's overseas employer. To establish a "qualifying relationship" under the Act and 
the regulations, the petitioner must show that the beneficiary's foreign employer and the propo sed 
U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent 
and subsidiary" or as "affiliates." See generally§ 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); 
see also 8 C.F.R. § 204.5U)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the context of this visa 
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 Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, a certificate of formation or 
organization of a limited liability company (LLC) alone is not sufficient to establish ownership or 
(b)(6)
Page 14 
control of an LLC. LLCs are generally obligated by the jurisdiction of formation to maintain 
records identifying members by name, address, and percentage of ownership and written statements 
of the contributions made by each member, the times at which additional contributions are to be 
made, events requiring the dissolution of the limited liability company, and the dates on which each 
member became a member. These membership records, along with the LLC's operating agreement, 
certificates of membership interest, and minutes of membership and management meetings, must be 
examined to determine the total number of members, the percentage of each member's ownership 
interest, the appointment of managers, and the degree of control ceded to the managers by the 
members. Additionally, a petitioning company must disclose all agreements relating to the voting of 
interests, the distribution of profit, the management and direction of the entity, and any other factor 
affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 
(BIA 1986). Without full disclosure of all relevant documents, USCIS is unable to determine the 
elements of ownership and control. 
In this matter, the petitioner claims that the foreign company owns and controls 81% of the 
petitioning company thus establishing a qualifying relationship. In support of its claim, the 
petitioner submitted evidence that it was organized within the State of Georgia as a limited liability 
company (LLC) on June 6, 2007. In addition, Articles of Organization were filed on June 7, 2007 
listing as manager of the LLC. The petitioner provided no operating agreement or 
membership records. However, the petitioner submitted copies of four membership certificates 
issued over 15 months later on September 15, 2008. Membership certificate 001 was issued to the 
beneficiary and represented a 51% ownership interest and membership certificate 002 was issued to 
, owner of the foreign company, and represented a 30% ownership interest. Each 
of these two membership certificates indicates on its face that it was voided on the same day of 
issuance. The petitioner provided no explanation regarding the voiding of these certificates. 
Membership certificate 003 represented a 19% ownership interest and was issued to 
while membership certificate 004 represented 81% ownership and was issued tc 
the foreign company. Therefore, membership certificate 004 appears to represent 
a majority ownership and control of the organization by the foreign company. However, the meeting 
minutes approving the ownership percentage was created yet another year later on September 15, 
2009, and no explanation was provided for this significant gap. 
The record of proceeding contains additional unexplained inconsistencies which raise questions as to 
whether the foreign entity acquired a majority interest in the petitioning company. The instant 
petition is the third Form I-140 filed on behalf of the beneficiary. In support of the two previous 
petitions, the petitioner submitted a copy of its IRS Form 1120S, U.S. Income Tax Return for an S 
Corporation, which indicates at Schedule K-1 that owns a 100% interest in the 
company. Further, the record indicates that in June 2008, the petitioner made an election with the 
Internal Revenue Service to be treated as an S corporation for federal tax purposes. However, in 
support of the current petition, the petitioner submitted a copy of an IRS Form 1120, U.S. 
Corporation Income Tax Return, for the 2008 tax year. Contrary to the Form 1120S filed with the 
previous petitions, this tax return identifies the foreign company as owner of 81% of the company. 
The Form 1120 is dated August 27, 2011, it is not an amended return, and the petitioner has not 
provided a certified return or a transcript as evidence that it was actually filed with the IRS. The 
petitioner's claims regarding its ownership and control are undermined by its submission of two 
different federal tax returns for the same tax year prepared on different IRS forms and indicating two 
different ownership structures. 
(b)(6)
Page 15 
Another inconsistency related to the petitioner's claim that it is owned by the foreign entity is the 
petitioner's submission of a document entitled "Unanimous Consent of the Shareholders in Lieu of 
Organizational Meeting of [the Petitioner]" dated July 21, 2008, which states that 
and were the "shareholders" of the company. Further, an undated "Consent Action 
of the Board of Directors of [the Petitioner] in Lieu of Organizational Meeting" referred to attached 
articles of incorporation and stock certificates but these were not included in the documents provided 
by the petitioner, neither was a stock ledger. Among the documents provided were two subscriber 
agreements which reflected the subscription of stock in the petitioning company by and 
The petitioner is a limited liability company, not a corporation, and thus is not 
authorize to issue stock. Again, 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). 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an 
employer seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. U.S., 345 F.3d 683, 
694 (9th Cir., 2003). However, doubt cast on any aspect of the petitioner's proof may undermine the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition . Matter 
of Ho, 19 I&N Dec. 582, 591 (BIA 1988). In this case, the discrepancies and errors catalogued 
above lead the AAO to conclude that the evidence of the petitioner's ownership is not credible. 
Accordingly, petitioner has not established that it has a qualifying relationship with the foreign 
entity . 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F.Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9
1
h Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). 
III. Conclusion 
The petltlon will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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.