dismissed EB-1C Case: Retail

.
U.S. Citizenship 
and Immigration 
Services 
MA TIER OF S-I- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 25, 2018 
APPEAL OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PET,ITION FOR ALIEN WORKER 
The Petitioner, operating as a liquor store, seeks to permanently employ the Beneficiary as its 
;'executive" under the first preference immigrant classification for multinational executives or 
managers.1 Immigration and ~ationality Act (the Act) section 203(b )(1 )(C), 8 U .S.C. 
§ 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a qualified 
foreign employee to the United States to work in a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary would be employed in the United States in a managerial . . ') 
or executive capacity.-
On appeal, the Petitioner contends that the Director has narrowly and incorrectly applied the law and 
believes that the record contains "extensive evidence" showing that the Beneficiary qualifies for the 
immigrant classification sought in this matter. 
Upon de novo review, we find that the Petitioner has not submitted sufficient evidence to overcome 
the denial. Therefore, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has b~en employed outside the United States for at least one year in a managerial or 
executive capacity, and seeks to enter the United States in order to continue lo render managerial or 
1 The Petitioner has a lengthy procedural history that includes four previously filed Form l-140s, Immigrant Petition for 
Alien Worker, (with receipt numbers on 
behalf of the same Beneficiary. All four petitions were de.nied and we dismissed the appeals an<l denied all motions that 
stemmed from the four appeal. The Petitioner has one more Form 1-140 (with receipt number , which 
was filed after the instant Form 1-140 and is currently pending adjudication. 
2 The Director also observed that "the [B]eneficiary has claimed ownership of both entities at some point" and found that 
the record contains "unexplained inconsistencies of ownership"; however, he did not explain whal those inconsistencies 
were or state why the Beneficiary's ownership in either or both entities is problematic for the purpose of establishing a 
qualifying relationship. 
Matter of S-1- Inc. 
executive services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the 
Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years 
preceding the filing of the petition, that the beneficiary is coming to work in the United States for the 
same employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. 
employer has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
· IL U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Petitioner originally claimed that the Beneficiary will be employed in an executive capacity. 
However, on appeal, the Petitioner claims that the Beneficiary will assume the role of a function 
manager. Therefore, we will address both claims. 
"Managerial capacity" means an assignment wit~in an organization in which the employee primarily 
manages the mganization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of- the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
101(a)(44)(B) of the Act. · 
A. Executive Capacity 
First, we will address the Petitioner's original claim that the Beneficiary's proposed employment 
would be in an executive capacity. In doing so, we will discuss evidence regarding the Beneficiary's 
job duties along with evidence of the nature of the Petitioner's business and its staffing levels. 
1. Duties 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Matter of S-1- Inc. 
Beneficiary will be primarily engaged in executive 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. 
Accordingly, in order to establish eligibility, the petitioner must provide a job description that clearly 
describes 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. § 204.5(j)(3). 
In a supporting cover letter, the Petitioner stated that the Beneficiary's proposed responsibilities 
would "mirror" those of his position with the foreign entity. The Petitioner described the foreign 
entity as a "mid-size business" and in a separate supporting statement indicated that the foreign 
entity has 18 employees and functions as a· lounge and restaurant. The Petitioner did not 
acknowledge that its staffing size and business purpose are notably di_fferent from those of the 
foreigff entity, nor did it explain how the Beneficiary's .duties can "mirror" one another, given the 
considerable differences between the two business operations. The Petitioner also provided an 
hourly job duty breakdown indicating that he would allocate 15 hours weekly to planning and 
directing the "overall functioning of the corporation," including preparing budgets, monitoring 
finances, and handling the "general administrations" of the organization. The Petitioner did not list 
the activities that comprise "overall functioning" or establish that preparing the company's budgets 
and tending to its "general administrations" are executive-level job duties. The Petitioner also stated 
that the B~neficiary would spend five hours per week supervising subordinate personnel, five hours 
developing relationships with vendors, suppliers, and other businesses, 5-10 hours on marketing and 
"public relations activities" to promote the business, and 5-10 hours conducting research to develop 
"new business enterprises." It did not, however, specify which "personnel" the· Beneficiary would 
oversee, nor did it establish that forging relationships with vendors and suppliers, carrying out 
marketing and public relations functions, or cond_ucting market research are executive-level tasks. 
' 
The Petitioner also stated that the Beneficiary 'Yould continue to formulate and administer policies 
and develop goals and objectives, analyze operational costs, develop and implement "budgetary 
control systems," invest company funds, oversee_marketing and sales, and make executive decisions. 
It added that the Beneficiary will have "con1plete discretion" and report only to the "senior 
international management" as he directs "an already well-established enterprise." . . 
The Director determined that the record did not include sufficient evidence that the Beneficiary's 
U.S. employment is in•an executive capacity an~ issued a request for evidence (RFE) instructing the 
Petitioner to provide a list of the Beneficiary's specific daily job duties and the percentage of time he 
would spend on each duty. 
The Petitioner's response included a statement asserting that the Director's request for specific time 
allocations was "limiting and unrealistic," claiming that the Beneficiary is an executive with broad 
discretionary authority. Notwithstanding its objection, the Petitioner provided an hourly breakdown 
that was not entirely consistent with the one it originally provided; the new job description also 
included a number of tasks that are not readily ~dentified as executive in their nature. Namely, the 
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Matter of S-1- Inc. 
Petitioner stated that the Beneficiary would spend approximately 20 hours per week addressing 
customer service and inventory concerns, establishing and maintaining relationships with vendors 
and suppliers, and promoting the Petitioner within the community by participating in "civic 
activities"; it did not, however, establish that these actions qualify as executive-level job duties. 
The job description also listed a number of duties that the Beneficiary would not likely need to 
perform on a weekly basis given the size and~scope of the Petitioner's operation. Namely, the 
Petitioner stated that the Beneficiary would allocate approximately six hours weekly to meeting with 
"professional advisors" to address legal and financial issues, inspecting the business premises for 
regulatory compliance and directing the manager to make necessary corrections, and addressing 
human resources deficiencies by hiring and firing personnel. However, the Petitioner did not 
establish that its legal or financial needs would Iequire weekly meetings with professional advisers 
in these fields. Likewise, the Petitioner did ncit establish that its liquor store occupies a site that 
requires weekly inspections to ensure regulatory compliance, nor does the record contain evidence 
that the Petitioner experiences a degree of staff turnover that would require the Beneficiary to 
allocate two hours each week to hiring and firing employees. The Petitioner 11rnst support its 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 
,,,i 369, 376 (AAO 2010). If we find reason to believe that an assertion stated in the petition is not true, 
we may reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § 1154(b); Aneteklwi v. 
INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 
(D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Although the Director acknowledged the Petitioner's response to the RFE, he determined that a 
notice of intent to deny (NOID) was warranted. As such, he issued a NOID, which included a 
preliminary finding that the Petitioner did not establish that the Beneficiary's proposed position 
would be primarily comprised of managerial or_ executive job duties. The Director noted that the 
Petitioner listed vague and non-executive job duties to describe the Beneficiary's proposed position 
and allowed the Petitioner another opportunity to demonstrate its eligibility. 
The Petitioner's response included an employee list containing employee job summaries. The 
Beneficiary's job summary indicated that he will perform the following: review paperwork to make 
sure that invoices and business returns are "kep_t intact"; make sure business "is flowing smoothly 
and no issues with products arise"; check inven~ory daily; set prices and maintain "good relations" 
with sales people and distributors; and make s~re expenses are correct and supplies are "kept in 
proper flow." As with the previously submittecl job descriptions, this job summary also indicates 
that the Beneficiary carries out various job duti~s that are administrative or operational, rather than 
executive in nature. 
In the denial decision, the Director concluded that the Beneficiary would spend his time primarily 
performing non-executive job duties. The Director also made a comparison of the various job 
descriptions that had been previously submitted, finding that the job description in the RFE response 
did not "remotely mirror the initial submissions." 
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Matter of S-1- Inc. 
On appeal, the Petitioner does not provide clarifying information about the Beneficiary's job duties, 
nor does it specifically address its original claim that the Beneficiary would be employed in an 
executive capacity. Instead, the Petitioner cites an adopted decision - Matter of Z-A-, Inc., Adopted 
Decision 2016-02 (AAO Apr. 14, 2016) - quoting the portion of the decision that discusses the 
adjudicator's duty to "weigh all relevant factors" and, where pertinent, to consider "evidence of the 
(B]eneficiary's role within the wider qualifying international organization." Although the Petitioner 
broadly states that the reasoning in the adopted decision "applies to both the responsibilities of the 
Beneficiary as well as those individuals who report to him," it does not provide a basis for this claim 
or point to specific facts and circumstances in this matter to establish how the reasoning of the 
adopted decision is applicable. Aside from generally claiming that the Beneficiary maintains ties to 
the foreign entity that previously employed him, th~ Petitioner does not provide evidence to show 
that the Beneficiary's current role is such that it impacts "the wider qualifying international 
organization," as was the case in the cited decision. Id_. The Petitioner also did not explain how the 
reasoning in the cited decision can be used to support the original claim that the Beneficiary 
functions in an executive capacity. 
The Petitioner also cites to regulatory provision~ that apply to moti~ns to reopen and reconsider; it 
does not acknowledge that the current proceeding is an appeal, rather than a motion, and that the 
cited provisions are therefore not applicable in this instance. 
In sum, we find that the Petitioner has not provided sufficient evidence to clarify the Beneficiary's 
executive job duties within the scope of its operation and therefore we cannot conclude that his 
duties would be primarily those of an executive. 
2. Staffing 
Beyond the required description of the job duties, we also examine the company's organizational 
structure, the duties of the Beneficiary's subordinate employees, the presence of other employees to 
relieve the Beneficiary from performing operational duties, and the nature of the business along with 
any other factors that will contribute to understa~ding the Beneficiary's actual duties and role within 
the petitioning organization. 
As the Petitioner properly noted, if staffing levels are used as a factor in determining whether an 
individual is acting in an executive capacity, we take into account 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. 
In the present matter, the Petitioner claimed that it had eight employees at the time of filing, but 
indicated that this number "may vary." The Petitioner also provided a list of seven employees and 
job summaries for a sales manager, an inventory and accounts manager, a supervisor, and four 
stocking associates with identical job duties. Despite the managerial or supervisory position titles of 
three of the listed employees, only the sales manager was assigned with oversight job duties, which 
include overseeing the stock personnel. Despite the position titles of the inventory and accounts 
' 
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Matter of S-1- Inc. 
' manager and "supervisor," their respective job s(1mmaries did not indicate that either position would 
manage or supervise other employees. Rather, the inventory and accounts manager job summary 
indicated that he/she will "[w]ork with stocking associates" and "[m]aintain ongoing and proactive 
communications with [the] op~rations team" to; address shipping logistics; it did not indicate that 
employee supervision was a component of this ·position. Likewise, the "supervisor" job summary 
indicates that he/she will "(w]ork with" and ;'[b]ack-up [sic]" the sales manager, but did not list any 
supervisory job duties associated with that position either. 
Although the Petitioner resubmitted the original employee list/job summary in response to the RFE, 
it provided a new organizational chart that depicted an organizational hierarchy and I isted position 
titles that are, without any explanation, inconsistent with the previously submitted document. 
Namely, the newer organizational chart shows a three-tiered staffing structure with the Beneficiary 
as president/managing director at the top of the hierarchy; it depicts an "Asst. Gen Manager/Staff 
Supervisor" and an accountant at the next organizational tier with the former as the Beneficiary's 
direct subordinate and no indication as to who oversees the accountant. However, neither of these 
positions was included in the original employee list. The chart also indicates that the "Asst. Gen 
Manager/Staff Supervisor" oversees the staff at- the organization's bottom tier, which includes the 
following positions: "Receiving and Stocking," an inventory controller, an employee described as 
''.Displays and Maintaining [sic] a Clean Store," "Clerk/Prices and Selling," and "Clerk." We note, 
however, that the employee list indicated that the Petitioner had four stock associates and, with the 
exception of the clerk position, it did not include the four remaining positions that were listed in the 
organizational chart. We further note that the employee list indicated that would 
perform inventory and account management, whereas the organizational chart lists as an 
accountant and indicates that another employee, whose position is at the bottom tier of the hierarchy 
that is below would perform the inven~ory function. 
' 
The Petitioner also submitted a brief statement from CPA, who stated that she has 
been working with the Petitioner and the Beneficiary since 2004 in the capacity of an accountant 
preparing the Petitioner's corporate tax returns. However, as noted above, the Petitioner's 
organizational chart identified as its accountant; the organizational chart is therefore 
inconsistent with statement. We further note that the RFE express! y instructed the 
Petitioner to identify and provide supporting evi_dence of any contract labor it used. The Petitioner 
did not, however, include in the organizational chart as a contracted service provider, nor 
did it provide supporting evidence of the contracted services she is claimed to have provided the 
Petitioner since 2004. The Petitioner must resolve the_ above listed inconsistencies and ambiguities 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 
582, 591-92 (BIA 1988} 
Further, the Petitioner did not comply with RFE instructions asking it to indicate whether each 
employee works on a full- or part-time basis. Instead, it provided JRS Form W-2 statements for 
2015 for eight employees. Aside from the Beneficiary, the highest paid of the seven remaining 
employees - with a salary of $12,000 - was whom the original employee list 
identified as the Petitioner's sales manager and whom -the organizational chart identified as the 
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Matter of S-1- !nc. 
"Asst. Gen Manager/Staff Supervisor," the Beneficiary's direct subordinate. The six remammg 
employees' salaries ranged from $9600 to $800. Based on these 2015 Form W-2s it does not appear 
that anyone other than the Beneficiary received:wages that were commensurate with those of full-
time employees. · 
In the subsequent NOID, the Director found that the Petitioner's organizational hierarchy lacked 
sufficient staffiI)g to support the Beneficiary in an executive position. The Petitioner's response 
included a second letter from claiming~that she started providing accounting services to the 
Petitioner in 2005, not in 2004, as stated in her original letter. The Petitioner also provided a payroll 
document listing each employee's name and the 1dates and amounts that employee was paid in 2015. 
Of the eight employees listed, the payroll record shows that two employees - and 
- did not receive wages beyond September 30, 2015, thereby indicating that the Petitioner was 
left with only six employees, including the B~neficiary, at the start of January 2016 when this 
petition was filed. As the Petitioner did not provide pay stubs or quarterly wage reports to show who 
it employed as of January 2016, we cannot verify that it had eight employees at the time of filing, as 
claimed in the petition. The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Chawathe, 25 I&N Dec. at 376. 
We further note that in response to the NOID, the Petitioner resubmitted the original employee list 
and the organizational chart that was subsequently submitted in response to the RFE without 
resolving the inconsistencies between the two documents. 
As indicated above, we agree with the Petitioner's assertion that. we must take into account the 
reasonable needs of the organization in light of its overall purpose and stage of development when 
staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity. Section l01(a)(44)(C) of the Act. However, the Petitioner's reasonable needs 
will not supersede the requirement that the Beneficiary must be "primarily" employed in an 
executive capacity, spending the majority of his time on executive-level job duties. See sections 
101(a)(44)(B) of the Act. 
In the present maller, the Petitioner indicates that it operated a liquor store with a staff of eight 
employees at the time of filing. However, the· Petitioner's 2015 payroll record indicates that the 
Petitioner started the year 2016 with a six-person staff, which appears to be primarily comprised of 
part-time employees. The Petitioner also repeatedly provided an employee list/job summary that is 
at odds with its organizational chart in terms of employee job titles and the staffing hierarchy within 
which they work. 
The statutory definition of the tenn "executive· capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to din;ct the organization. Section I0l(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. ·inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
·7 
Matter of 5-1- Inc. 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. 
Although the Petitioner has consistently maintained that the Beneficiary would be employed at the 
top-most position within the Petitioner's organizational hierarchy, the fact that the Beneficiary will 
manage or direct a business does not necessarily establish eligibility for classification as a 
multinational executive in an executive capacity' within the meaning of section 101(a)(44)(B) of the 
Act. By statute, eligibility for this.classification requires that the duties of a position be "primarily" 
executive in nature. Section 101(A)(44)(B) of the Act. While the-Beneficiary's placement at the top 
of the Petitioner's staffing hierarchy indicates that he may exercise discretion over its day-to-day 
operations and possess the requisite level of aut~ority with respect to discretionary decision-making, 
these elements are not sufficient to establish that_ the Petitioner had the necessary staffing to support 
the Beneficiary in an executive position. 
In light of the evidentiary deficiencies described above, we find that the Petitioner has not provided 
sufficient evidence to show that at the time of filing it had the staffing and organizational complexity 
to relieve the Beneficiary from having to engage .in the daily operational functions that are associated 
' with operating a liquor store. 
8. Managerial Capacity 
Next, we will address the Petitioner's most recent claim on appeal where it claims that the 
Beneficiary and his subordinates are function managers. 
The term "function manager" applies generally when a beneficiary is primarily responsible for 
managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the 
Act. If a petitioner claims that a beneficiary will manage an essential function, it must clearly 
describe the duties to be performed in managing the essential function. In addition, the petitioner 
must demonstrate that "( l) the function is a clearly defined activity; (2) the function is 'essential,' 
i.e., core to the organization; (3) the beneficiary' will primarily manage, as opposed to perform, the 
function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with 
respect to the function managed; and (5) the beneficiary will exercise discretion over the function's 
day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
In this matter, the Petitioner has not specified'. an essential function that the Beneficiary would 
manage, nor has it provided an adequate job description that delineates the specific duties of that 
function. Moreover, the Petitioner's claim that the Beneficiary's subordinates i;nay also be function 
managers is confusing, as it does not explain ho~ the employees of the organization would support 
the Beneficiary's alleged role as the main functi.on manager. Given that the Petitioner now claims 
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Matter of S-1- Inc. 
that the Beneficiary would manage an essential function, it must establish that the employees within 
its organization are able to perform the underlying duties of that function. Claiming that the support 
personnel also manage an essential function confuses and diminishes the claim that the Beneficiary 
is a function manager. If most of the employees within the organization are claimed to be managing 
essential functiOf!S, it is unclear who is performing the underlying operational and administrative 
tasks of these undefined functions to ensure that the organization continues to operate properly. 
Given the overall general nature of the Petitioner's newest claim and the lack of evidence provided 
to support that claim, we find that the Petitioner has not demonstrated that it has the means to 
support a function manager with an adequate staff that will carry out the underlying duties of an 
essential function that the Beneficiary would manage. Therefore, the Petitioner has not established 
that the Beneficiary would manage an essential function. within the petitioning organization. 
III. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in the United States in a ma1_1agerial or executive capacity. The appeal will be 
dismissed for this reason. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-1- Inc., ID# 1341458 (AAO July 25, 2018) ,. 
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