dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-R- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 14, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which operates two convenience store/gas stations, 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)(1)(C), 
8 U.S.C. § 1153(b)(1)(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, Texas Service Center, denied the petition, concluding that the evidence of record did ,~ • 
not establish that the Petitioner: (1) has a qualifying relationship with the Beneficiary's foreign 
employer; and (2) will employ the Beneficiary in the United StateS, in a managerial or executive 
capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits an affidavit from the 
chief executive officer of the foreign affiliate company and asserts that the Director erred by 
requiring evidence and information beyond what the statute and regulations demand.
1 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers.- Visas shall first be made available ... to qualified immigrant~ who 
are aliens described in any of the following subparagraphs (A) through (C): 
1 
The Petitioner asserts that the company was doing business for more than one year prior to filing the petition, as 
required by 8' C.F.R. § 204.5(j)(3)(D). The Director, however, did not cite this issue as a basis for denial of the petition. 
The Petitioner also discusses the Entrepreneurs in Residence Initiative, which, the Petitioner states, shows that USCIS 
recognizes the role of immigrant entrepreneurs in creating jobs and growing the economy. That program has not altered 
or waived the basic eligibility requirements for the classification the Petitioner seeks, and its existence does not affect the 
outcome of this proceeding. 
Matter of B-R- Inc. 
(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 cqrporation or 
other legal entity or an affiliate or subsidiary thereof and the alien 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. 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(1)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.P.R. § 204.5(j)(3) states: 
(3) 0 Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager 
must be accompanied by a· statement from an authorized official of the 
petitioning United States employer which demonstrates that: 
(A) 
(B) 
(C) 
(D) 
If the alien is outside the United States, in the three years immediately 
I 
preceding the filing of the petition the alien has been employed outside 
the United States for at least one year in a managerial or executive 
capacity by a firm or corporation, or other legal entity, or by an affiliate 
or subsidiary of such a firm or corporation or other legal entity; or 
If the alien is already in the United States working for the same 
employer or a subsidiary or affiliate of the firm or corporation, or other 
legal entity by which the alien was employed overseas, in the three years 
preceding entry as a nonimmigrant, the alien was employed by the entity 
abroad for at least one year in a managerial or executive capacity; 
~ 
The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
The prospective United States employer has ~een doing business for at 
least one year. 
2 
(b)(6)
Matter of B-R-Ine. 
II. QUALIFYING RELATIONSHIP 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
has a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show 
that the beneficiary's foreign employer and the proposed 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." 2 
The regulations at 8 C.F.R. § 204.50)(2) define generally define the term "affiliate" as: 
(A) One of two ~ubsidiaries both of which are owned and controlled by the same 
parent or individual; [or] 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity .... 
The Petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on July 2, 2015. 
The regulation and case law confirm that ownership and control are the factors that determine 
whether a qualifying relationship exists between United States and foreign entities for purposes of 
this visa classification.3 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 Int 'l, 19 I&N Dec. at 595. 
The Petitioner identified the Beneficiary's last foreign employer as 
a company that assembles and sells automobile parts. 
The ownership of the two entities is not at issue. Share certificates and a stock ledger in the record 
indicate that who preceded the Beneficiary as president of the petitioning entity, 
originally owned all shares in the company but later sold 51% to the Beneficiary. The foreign 
company's memorandum of association indicates that the foreign company had issued 20 shares, 10 
each to the Beneficiary and An accompanying deed of partnership 
indicated that the directors "will both be in-charge of the management" of the foreign company. 
Job descriptions for the workers at the foreign company, prepared in 2011 while the Beneficiary was 
still working at that company, named the Beneficiary as the managing director, with 49 subordinates 
2 
See generally section 203(b )(1)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
3 See Matter of Church Scientology Int'l, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Med. Syss., Inc., 19 
I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r. 1982). 
3 
(b)(6)
Matter of B-R- Inc. 
and the authority to "direct and control the Company's operations." is the 
company's chief executive officer, "fully responsible to supervise and control all strategic and 
business aspects ofthe company" and "first in command in the company," with 61 subordinates. 
Tax and payroll documents in the record show that the foreign company paid the Beneficiary 
120,000 rupees per month, while received 300,000 rupees per month. The 
tax documents date from late 2014 and 2015, after the Beneficiary arrived in the U.S. in February 
2014 to work for the Petitioner. 
In the denial notice, the Director acknowledged the Beneficiary's ownership interests in both 
companies, but questioned the Beneficiary's authority over the foreign entity because 
receives a much higher salary and is "first in command in the company." The Director 
found that the Petitioner had not shown that "the beneficiary has equal control or even veto power 
over the foreign company." 
On appeal, the Petitioner observes that the Beneficiary is now working in the United States, earning 
a salary here which his partner in Pakistan does not receive. The Petitioner also observes that, given 
the time difference between Texas and Pakistan, a company official in Pakistan is in a better position 
to make real-time decisions on behalf of the foreign company.4 
The wording of the job descriptions is at times ambiguous, but indicates a division of responsibility 
between the managing director and the chief executive officer, while both parties remain equal 
owners and partners at the top of the organization. The Petitioner's organizational chart shows the 
Petitioner and at the top, with neither exercising authority over the other. 
As a director, the Beneficiary continues to have control at the corporate level even if che is not 
running the company on a day-to-day basis. 
For the above reasons, we find that the Petitioner has established by a preponderance of the evidence 
that a qualifying relationship exists between the two companies. We withdraw the Director's finding 
to the contrary. 
4 The Petitioner adds that "foreign affiliates law and local vendors require the personal appyarance of the authoritative 
person in the foreign country," but the Petitioner 'cites no specific statute and submits no supporting evidence. In 
immigration proceedings, the law of a foreign country is a question of fact which must be proven if the petitioner relies 
on it to establish eligibility for an immigration benefit. Matter of Annang, 14 I&N Dec. 502 (BIA 1973). A petitioner's 
unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof. See 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)); Sf?e also Matter of Chawathe, 25. I&N Dec. 369, 376 (AAO 2010). The Petitioner must support 
its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. The 
unsupported assertions of counsel do not constitute evidence. See, e.g., Matter ofObaigbena, 19 I&N Dec. 533,534 n.2 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). 
4 
Matter of B-R- Inc. 
III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it · 
will employ the Beneficiary in a managerial or executive capacity. 
\ 
Section 10l(a)(44)(A) ofthe Act, 8 U.S.C. § 110l(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10l(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
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 
5 
Matter of B-R- Inc. 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) of the Act. 
A. Duties 
When examining the executive or managerial capacity of a given beneficiary, we will look first to 
the petitioner's description of the job duties. The Petitioner's description of the job duties must 
clearly describe the duties to be performed by the Beneficiary and indicate whether such duties are in 
a managerial or executive capacity. See 8 C.F.R. § 204.50)(5). 
The regulation at 8 C.F.R. § 204.50)(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 provided the following breakdown of the time the Beneficiary spends on various 
responsibilities: ~ 
Direct and manage US Petitioner 40% 
Establish the goals and policies, investment strategy. 20% 
Supervise and control subordinates. 10% 
Recruit, Hire and fire employees 10% 
Marketing, Promotion and Negotiations with various entities. 10% 
Review financial reports, revenues and expenses. 10% 
The Petitioner provided a longer description, spanning about one and a half pages. The paragraphs 
in the longer description generally conform to the categories listed above. For example, the first 
paragraph of the long description reads: 
I 
As the President, the Beneficiary will be responsible at the top of the organizational 
hierarchy for managing, planning and formulation of the business strategy of the 
company and conducting research of market conditions in local, regional, or national 
areas to determine potential business opportunities and gather information on 
competitors, prices and sales. Here, the Beneficiary will primarily be involved in 
managing the company at the top, issuing orders to subordinates, formulating the 
plans and strategy as to purchasing, pricing, advertising, investment and expansion of 
the business. Establishing long-range objectives and specifying the strategies and 
actions to achieve them is one of the primary duties of the President where [the 
Beneficiary] will develop policies, procedures, methods, or standards. The President 
will provide leadership and vision to manage the corporation. 
The initial job description does not include elements specific to the Petitioner's business of operating 
convenience stores. Rather, the duties are generic, some to the point of resembling templates, and 
some elements appear to be inapplicable to the Petitioner. For instance, the job description states 
that the Beneficiary will "review reports submitted by staff members to recommend approval or to 
6 
Matter of B-R- Inc. 
suggest changes[,] appoint department heads or managers and assign or delegate responsibilities to 
them, direct ... the selection of directors or other high-level staff, or establishment or organization 
of major departments." The Petitioning organization has a simple structure with no directors, 
departments, or department heads. The Petitioner may hope to one day grow large enough to 
warrant such complexity, but the Petitioner cannot establish eligibility based on conditions that do 
not yet exist. The Petitioner must establish eligibility at the time of filing the petition. See 8 C.P.R. 
§ 103.2(b)(l). 
The Director issued a request for evidence (RFE), asking the Petitioner for a more detailed job 
description showing specific duties (rather than broad categories of responsibilities), and the amount 
of time devoted to each specific duty. In response, the Petitioner stated: 
the Beneficiary will be responsible for . . :. hiring and firing managers; supervising 
subordinate employees; overseeing preparation of sales and inventory reports; 
reviewing an[ d] analyzing sales data; establishing and implementing policies to 
manage and achieve marketing goals; review financial reports; review budgets and 
expense reports prepared by subordinate employees; managing the company; and 
overseeing marketing campaign[ s] developed by subordinate managers. 
The Petitioner submitted a longer job description, which matches the long description submitted 
earlier. The Petitioner also submitted a new percentage breakdown. The percentages match the 
earlier submission. The duty descriptions are longer, but contain no new details specific to the 
Petitioner's business. The longest addition was to the job element originally worded "Supervise and 
control subordinates." The expanded RFE version reads as follows (note: errors in the text have not 
been corrected): 
Supervise and controls the work of other supervisors/managers who run their sales 
and other departments and provides an essential role of the organization to run a 
successful business with strict quality control, review of guest/clients and vendor's 
complaints if they are not resolved at the early managerial level and require his 
assistance. Develops marketing and other strategies with financial forecast and 
business development to enhance and expand the business with the qualified 
managers and subordinates. In this regards, he also evaluates the managers, suggest 
them improvement programs and provide the required training and managerial goals 
to further the interest of the Organization 
The description refers "sales and other departments" and differentiates between "guests" and 
"clients," but the Petitioner has not shown that it has guests or departments. Therefore, the expanded 
description again has the appearance of a generic template rather than a description specifically 
tailored to the Beneficiary's duties as the Petitioner's president for its convenience stores. (Also 
suggesting that elements of the description derive from an unidentified source is a reference to "the 
performance of her [sic] duties.") 
7 
Matter of B-R- Inc. 
In the denial notice, the Director found the job description to be worded so generally that it gave no 
information about the Beneficiary's actual daily duties. The Director cited case law regarding the 
requirement for greater detail: 
Specifics are clearly an important indication of whether the beneficiary's duties are 
primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. See Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990); see also 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 (S.D.N.Y., Apr 18, 1997). 
On appeal, the Petitioner states that the Beneficiary's activities differ from,'day to day and therefore 
cannot be described with the detail possible for lower-level jobs such as a cashier. 
The Petitioner's response does not overcome the Director's finding that the Beneficiary's job 
description lacks necessary detail. As noted above, the Petitioper has submitted lengthy job 
descriptions for the Beneficiary, but those descriptions include details that do not conform to the 
Petitioner's own evidence with respect, for instance, to the structure of the company. Therefore, the 
descriptions do not tell us what the Beneficiary will actually do from day to day. The Petitioner has 
not established that the Beneficiary's duties will be primarily managerial or executive. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" of an executive or managerial nature. Sections 101(A)( 44)(A) 
and (B) of the Act, 8 U.S.C. § 1101(a)(44)(A) and (B). While the Beneficiary may exercise 
discretion over the Petitioner's day-to-day operations and possesses the requisite level of authority 
with respect to discretionary decision-making, the position description alone is insufficient to 
establish that his actual duties, as of the date of filing, would be primarily managerial or executive in 
nature. 
We also consider the proposed position in light of the nature of the Petitioner's business, its 
organizational structure, and the availability of staff to carry out the Petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance. of the number of 
employees a Petitioner has, USC(IS "may properly consider an organization's small size as one factor 
in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. 
8 
Matter of B-R- Inc. 
U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with 
approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 
905 F.2d at 42; Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
Furthermore, it is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, or a 
"shell company" that does not conduct business in a regular and continuous manner. See, e.g., 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
On Form I-140, the Petitioner claimed eight U.S. employees. In the denial notice, the Director st.ated 
that the Petitioner did not submit a requested organizational chart, but the Petitioner did, in fact, 
submit an organizational chart with the petition, showing the following: 
President [the Beneficiary] 
I 
Store 1 Manager 
Cashier 1/Purchaser ]-- Cashier 2 
Cashier 3/Stocker 
Vice President 
Store 2 Manager 
Cashier !/Purchaser ]-- Cashier 2 
Cashier 3/Stocker 
The chart showed 10 positions, slightly more than the 8 employees the Petitioner claimed on Form 
I-140. The Petitioner did not specify which, if any, positions were vacant at the time of filing. 
The Petitioner has indicated that the two convenience stores operate 24 hours a day, seven days a 
week, and therefore each store requires continuous staffing. 
In the RFE, the Director asked for documentation of wages paid to the Beneficiary and his 
subordinates. In response, the Petitioner submitted copies of IRS Forms W-2, Wage and Tax 
Statements, showing wages paid to 11 employees in 2015. The Beneficiary earned $30,000. A 
second employee earned $26,000, and another, who worked for only part of the year, earned $1300. 
Each of the eight remaining employees earned less than $20,000, averaging $16,303.75. 
In the denial notice, the Director found that the salaries shown on the IRS Forms W:.2 do not appear 
to be consistent with full-time employment or a managerial level of compensation. The Director 
concluded, therefore, that the Beneficiary likely has some degree of direct involvement in running 
the stores. The Director also found that the Petitioner had not established that its small staff requires 
layers of managerial authority. 
On appeal, stated that the Director unfairly relied on "the number and size of the Petitioner's 
operation and not as merely one factor in deciding whether Petitioner's evidence was sufficient." 
9 
Matter of B-R- Inc. 
The Director, however, did not rely solely' on the Petitioner's size. As shown above, the Director 
also found the Beneficiary's job description to be deficient. 
The Director, in denying the petition, stated: "The number of employees indicated on Form I-140 
was 8 and W -2s suggested ten." The Petitioner, on appeal, calls this "a new ground" for denial of 
the petition. The Director,, however, did not state that the discrepancy was a basis for denial. 
Instead, the Director cited both figures in the interest of thoroughness. The denial arose not from the 
difference between eight and ten employees, but from a finding that neither of those figures appears 
to be sufficient for the continuous operation of two stores that must be staffed 24 hours a day, seven . 
days a week. 
The Petitioner states that its staffing is appropriate considering the size of the business, but this 
assertion, unsupported by evidence, does not resolve the Director's concerns. See Matter of Soffici, 
22 I&N Dec. 165. The Petitioner contends that, if the Director had raised this issue in the RFE, then 
the Petitioner could have produced further evidence. The Petitioner does not explain why it was 
unwilling or unable to provide such evidence on appeal. 
The Petitioner states that the Director did not take into account employee turnover and part-time 
work when considering the Petitioner's staffing. The Petitioner issued only 11 IRS Forms W-2 for 
2015, and therefore those 11 employees make up the company's entire staff for the year. The 
Petitioner does not specify which of these employees worked part-time. If these employees worked 
less than full-time, and for less than the full year, then the Petitioner was even more understaffed. 
As noted above, eight of the Petitioner's employees earned, on average, $16,303.75 in 2015. That 
amount is sufficient to cover a 40-hour work week at minimum wage, which would keep one store 
continuously open throughout a 168-hour week if four workers handled non-overlapping shifts. The 
Petitioner, however, has not shown that it staffs its stores in this way. Also, this arrangement would 
require each stores claimed inanager to work when no other employee is on duty, making that 
manager, in effect, a fourth cashier at each location. 
Interior photographs of one store, submitted in response to the RFE, show a checkout counter staffed 
by two cashiers, a check cashing window, a "hot deli," 12 gasoline pumps, and 6 diesel fuel pumps. 
The other store has a checkout counter with an indeterminate number of cash registers, a coffee 
counter, 8 gasoline pumps, and 6 diesel fuel pumps. The Petitioner has not shown that one employee 
is able to run each of these stores without assistance, and the two cashiers shown in some 
photographs demonstrate that shifts overlap at least to some extent. The Petitioner stated that the 
Beneficiary spends most of his office hours at one of the store locations, but the photographs do not 
show any office space. 
The Petitioner has not shown that its staffing is sufficient to relieve the Beneficiary from having to 
perform non-qualifying operational duties at one or both of its stores. Based on the deficiencies 
discussed above, the Petitioner has not established that it will employ the Beneficiary in a 
managerial or executive capacity in the United States. 
10 
Matter of B-R- Inc. 
IV. CONCLUSION 
The petition 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 with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-R- Inc., ID# 105359 (AAO Dec. 14, 2016) 
11