dismissed EB-1C Case: Retail

(b)(6)
DATE: 
AUG 0 7 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS 'SERVICE CENTER 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 (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
0 
~~ ,./ 
r Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and 
dismissed the petitioner's subsequent motion to reopen. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a South Carolina limited liability company engaged in the sale of retail consumer 
products, foods, and automotive products. It seeks to employ the beneficiary as its senior manager. 
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)(1)(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish that it will employ the 
beneficiary in a qualifying managerial or executive capacity. The director dismissed the petitioner's 
subsequent motion to reopen. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. 
I. THELAW 
Section 203(b) of the Act states in pertinent part: 
(1) 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 and managers 
who have previously worked for the 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
of a statement that 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 p·erformed by the alien. 
See 8 C.F.R. § 204.5(j)(5). 
II. FACTS AND PROCEDURAL HISTORY 
The sole issue addressed by the director is whether the petitioner established that the beneficiary 
would be employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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 personnel 
actions (stich 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 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 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 
(b)(6)
Page4 
NON-PRECEDENT DECISION 
(iv) receives only general superv1s10n or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
The petitioner indicated on the Form I-140, Immigrant Petition for Alien Worker, that it is engaged in 
the retail sale of consumer products, food, and automotive products with three employees and a gross 
annual income of $1,080,000. The petitioner states that it wishes to employ the beneficiary as its 
Senior Manager 
and indicates that she will be responsible for "the development of client and customer 
contacts, as well as managing retail consumer products, securing warehouse, hiring employees, and 
undertaking other business development activities." 
In a supplement to the Form I-140, the petitioner stated that the beneficiary has been "responsible for 
operations and startup of the US operation." The petitioner stated that the beneficiary will perform the 
following duties: formulating plans for analyzing operations, determine areas of potential cost 
reduction, program improvement, or policy change. In her role as Senior Manager since 2010, the 
petitioner states that the beneficiary also hired senior staff, established relationships with vendors, and 
engaged banks. 
With respect to the nature of the business, the petitioner stated that it operates using the trade name of 
. " The petitioner stated that the company has three employees, not including the 
beneficiary, who "handle all the administrative and general operational duties to operate the US 
business." The petitioner submitted photographs of a retail store offering grocery items, several 
varieties of fast food, and gasoline. 
In support of the petition, the petitioner provided inter alia, the following evidence: 2010 IRS Form 
1120, U.S. Corporation Income Tax Return; a lease for the current premises described as ' 
:"and photographs of the business; IRS Form W-2, Wage and Tax Statement 
and IRS Form 941 Employer's Quarterly Federal Tax Return, for 2010. The IRS Form W-2 for 2010 
shows payments to three employees who earned $1,595, $1,305, and $1,595 respectively. The 2010 
IRS Form 1120 shows $1,595 in salaries and wages paid and $1,595 in compensation to officers. 
The director issued a request for evidence ("RFE"). The director requested that the petitioner provide, 
inter alia, evidence that the beneficiary will act in a qualifying capacity as a multinational executive 
or manager. Specifically, the director requested the following: (1) the beneficiary's position title and 
specific daily duties; (2) percentage of time spent on each duty; (3) organizational chart for the 
petitioner including job titles, duties, and educational levels for each employee as well as whether the 
employee works full or part-time; (4) IRS Forms W-2, for the relevant years for each employee, and 
(5) the petitioner's 2011 federal income tax returns. 
The petitioner submitted a letter in response providing a two-page list of the beneficiary's duties and 
sub-duties. The petitioner indicated that the beneficiary's tasks include: future business expansion 
planning, negotiations with vendors/contractors, purchase or repair of equipment, fund allocation and 
provision, selection of employees, quality control, pricing, filing of taxes, and creation of a customer 
retention program. The petitioner stated that the beneficiary will spent 70% of her time performing 
these duties, and 30% of her time as a "regular employee." 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
The pet1t10ner provided the names, job titles and brief job descriptions for three subordinate 
employees. Specifically, the petitioner claimed that the beneficiary manages a store manager, 
marketing planner/cook/clerk, and a cook/clerk. According to the provided descriptions, the store 
manager is responsible for store administration, vendor/contract management, timely payment to 
vendors, banking, providing feedback to the owner, customer relationship, procurement and employee 
management, and he spends 30% of his time handling a cash register. The marketing 
planner/cook/clerk is claimed to divide his time as follows: marketing (10% ), handling register (35% ), 
stocking (10%), cooking (25%) and cleaning (10%). The cook/clerk is claimed to perform the same 
duties, with the exception of marketing. 
The petitioner did not provide the educational level of the employees or indicate whether they work 
full or part-time. The petitioner also failed to provide copies of its IRS Forms W-2 for 2011. 
The petitioner provided its 2011 IRS Form 1120, U.S. Corporation Income Tax Return. The tax 
return indicates that the petitioner paid $15,834 in compensation of officers and $7,540 in salaries and 
wages. According to IRS Form 1125-E, Compensation of Officers, the petitioner paid $7,540 to the 
marketing planner/cook/clerk and $8,294 to the store manager. 
The director ultimately denied the petition, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a qualifying managerial or executive position. In denying the 
petition, the director found that the description of the beneficiary's duties was vague and did not 
support a finding that the duties would be primarily managerial in nature. The director also noted that 
the four employees are not full-time employees, and therefore, it was questionable whether the 
beneficiary would be employed in a managerial or executive capacity. 
The petitioner filed a motion to reopen . The petitioner provided a pos1t1on description for the 
beneficiary including a breakdown of the time spent on each duty. Counsel for the petitioner stated on 
motion that the beneficiary is relieved from performing non-managerial duties by the store manager 
and his subordinate staff. Counsel for the petitioner asserted that the beneficiary's "primary activities 
revolve around the financial responsibilities" of the operation and therefore she does not perform the 
day to day duties of the convenience store. Counsel further claimed that the small number of 
employees is sufficient to support the store operations. Finally, counsel asserted that the beneficiary's 
hire and fire authority and signature on company documents are indicative of her managerial level 
position. The petitioner included copies of checks signed by the beneficiary and a five-page detailed 
description of the beneficiary's duties. 
The director dismissed the motion, noting that the petitioner had previously failed to respond to the 
director's request for a percentage breakdown of the beneficiary's duties, and that such evidence could 
not be considered "new" facts in support of a motion to reopen. Nevertheless, the director 
acknowledged the petitioner's assertions and noted that the beneficiary's signatory authority does not 
establish that she is a multinational manager or executive. The director reiterated the findings in the 
prior decision that the record does not establish that the petitioner's three employees are full-time 
employees. The director also stated that the approval of prior nonimmigrant petitions does not 
guarantee that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
On appeal, counsel asserts that evidence of record is sufficient to establish that the beneficiary will be 
employed in a qualifying managerial or executive capacity. Specifically, counsel asserts that the 
director's decision on the petitioner's motion to reopen was based solely on whether a job description 
including percentages of time was provided. Counsel further states that the petitioner provided a 
detailed description as requested in response to the RFE and again on motion to reopen. Finally, 
counsel cites to previous cases approved by the Texas Service Center for general managers of 
convenience stores. Counsel for the petitioner acknowledges that USCIS is not bound by prior 
adjudications, but observes that a departure from prior rulings in similar cases is "arbitrary and 
capricious." 
III. DISCUSSION 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would 
be employed in a managerial or executive capacity. 
As an initial matter, counsel's suggestion that the agency has inconsistently interpreted the applicable 
regulation is not supported by the record. To be inconsistent and actionable, it is well established that 
an agency "interpretation" that serves to modify a previous interpretation must be in the form of an 
actual precedent decision, regulation, or other published rulemaking. See, e.g., SBC Inc. v. Federal 
Communications Com'n., 414 F.3d 486,498 (3rd Cir., 2005) (citing Paralyzed Veterans of America v. 
D.C. Arena, L.P., 117 F.3d 579,586 (D.C.Cir. 1997)). Rulemaking by "practice" does not exist. Only 
when the agency specifically designates a decision as precedent can it bind future decisions. 8 C.F.R. 
§ 103.3(c). The stream of unpublished, non-binding service center decisions, such as counsel's vague 
reference to unpublished contradictory adjudications, would not be enough to document an 
inconsistent agency interpretation. See, e.g., R.L. Inv. Ltd. Partners v. INS, 86 F.Supp.2d 1014, 1024-
25 (D.Hawai'i, 2000), aff'd 273 F.3d 874 (9th Cir. 2001). 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal the 
true nature of the employment. 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 8 C.F.R. § 204.5(j)(5). That being said, however, 
users reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the petitioner's business, the employment and remuneration of 
employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other facts 
contributing to a complete understanding of a beneficiary's actual role within a given entity. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the beneficiary performs the high-level responsibilities that are specified in the definitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
The AAO recognizes that the position description provided for the beneficiary in response to the RFE 
was detailed. However, the petitioner failed to provide a specific percentage of time to be allocated to 
each duty, information that was provided for the first time on appeal. Further, the petitioner's 
description of the beneficiary's duties includes a majority of managerial level duties. However, the 
petitioner initially stated that the beneficiary would allocate 70% of her time to the listed duties and 
30% of her time as a "regular employee," a role that has not been further explained. On motion and 
on appeal, the petitioner indicates that the beneficiary allocates 100% of her time to the listed duties. 
A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 
1998). Accordingly, our analysis of the beneficiary's duties will be based on the petitioner's statement 
that the beneficiary allocates 70% of her time to duties it considers to be managerial in nature and 
30% of her time to the non-managerial duties of a "regular employee ." 
Beyond the required description of the beneficiary's job duties, U.S. Citizenship and Immigration 
Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's duties 
and those of 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 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 Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 
(Comm'r 1988). 
In the present matter, the totality of the record does not support a conclusion that the beneficiary will 
be primarily performing managerial or executive level tasks. Specifically, the record does not support 
the petitioner's assertion that the beneficiary allocates 70 percent, of her time to the claimed 
managerial job duties. The record shows that the beneficiary is the only full-time employee available 
to perform the day-to-day tasks of the convenience store, which, according to the evidence of record, 
also sells foods cooked in-house, including hamburgers, fried chicken, biscuits, pizza, etc. The 
petitioner's 2011 IRS Form 1120 shows that $7,540 was paid in salaries and wages, and that two of 
the beneficiary's subordinates compensated as officers also earned low salaries commensurate with 
part-time employment. The petitioner failed to provide the 2011 Forms W-2 as requested. 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). 
Ultimately, the petitioner failed to show that there are any employees consistently available to relieve 
the beneficiary from performing non-qualifying duties. Without further information including a staff 
schedule, hours of operation, and full or part-time status of each employee, the record does not 
support a finding that the beneficiary will be spending a majority of her time performing managerial 
or executive duties . For example, the petitioner's description of the beneficiary's duties states that she 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
is supported in most of her responsibilities by the store manager, who is claimed to oversee the day­
to-day operations of the store. Based on the compensation of $8,294 paid to the store manager in 
2011, it is apparent that he worked no more than 22 hours per week, and even fewer hours if he 
received more than the minimum wage of $7.25 per hour. In addition, the petitioner indicates that the 
store manager allocates almost one-third of his time to operating a cash register, leaving him a limited 
number of hours to perform the other non-qualifying administrative, operational and first-line 
supervisory tasks he is claimed to perform. The remaining two employees appear to have earned 
lower salaries than the store manager and thus work even fewer hours. Overall, based on the evident 
part-time status of the employees, and the job descriptions and breakdowns provided, the petitioner 
does not even claim to have staff operating a cash register for more than 20 or 25 hours per week. 
On motion, counsel claimed that the staffing levels of the petitioner are "sufficient" to free up the 
beneficiary's time to perform the managerial and executive duties. Counsel further claimed that the 
day-to-day operations of the convenience store can "easily be performed by a handful or regular 
employees." Counsel fails to document, however, how the three employees working unknown hours 
and earning salaries of less than $8,300 each for an entire year would be able to perform the day-to­
day activities of the convenience store so the only full-time employee is able to perform primarily 
managerial duties. The petitioner failed on both motion to reopen, and on appeal, to address the 
director's findings that all of the petitioner's subordinates were part-time employees and thus unable 
to relieve the beneficiary of non-qualifying duties. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg. Comrn'r 1972)). Without documentary evidence to support the claim, the assertions 
of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do 
not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
The proposed position of the beneficiary is a Senior Manager of convenience store that has three part­
time employees other than the beneficiary. The petitioner has not demonstrated that the beneficiary, 
as a personnel manager, will be primarily supervising a subordinate staff of professional, managerial, 
or supervisory personnel. See section 101(a)(44)(A)(ii) of the Act. Furthermore, the petitioner has not 
established that it will employ a staff that will relieve the beneficiary from performing non-qualifying 
duties so that the beneficiary may primarily engage in managerial duties. Regardless of the 
beneficiary's position title, the record is not persuasive that the beneficiary will function at a senior 
level within an organizational hierarchy. 
As required by section 10l(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, USCIS must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. However, 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page9 
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. See Systronics, 153 F. 
Supp. 2d at 15. 
Based on the petitioner's representations, it does not appear that the reasonable needs of the 
petitioning company might plausibly be met by the services of the beneficiary as senior manager and 
three part-time employees. Regardless, the reasonable needs of the petitioner serve only as a factor in 
evaluating the lack of staff in the context of reviewing the claimed managerial or executive duties. 
The reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44) . The reasonable needs of the petitioner may 
justify a beneficiary who allocates 51 percent of her duties to managerial or executive tasks as 
opposed to 90 percent, but those needs will not excuse a beneficiary who spends the majority of his or 
her time on non-qualifying duties. The petitioner's claim that the beneficiary will allocate the majority 
of her time to qualifying duties is not supported by the totality of the evidence in the record. 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity and the 
instant petition cannot be approved. 
IV. CONCLUSION 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed .