dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 13, 2023 In Re: 28456390 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a gas station and convenience store, seeks to permanently employ the Beneficiary as 
its president under the fust preference immigrant classification for multinational executives or 
managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(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 a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that: (1) it had a qualifying relationship with the Beneficiary's foreign employer; (2) the 
foreign employer continued to do business abroad; (3) the Beneficiary had been employed abroad in 
a managerial or executive capacity; or (4) the Beneficiary would be employed in a managerial or 
executive capacity in the United States. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or 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). In addition, a petition for a 
multinational manager or executive must be accompanied by evidence that the prospective United States 
employer has the ability to pay the proffered wage from the time the petition is filed and continuing 
through adjudication. See 8 C.F.R. § 204.5(g)(2). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
We will first address whether the Petitioner established that the Beneficiary would be employed in the 
United States in a managerial or executive capacity. 
As a preliminary matter, the Petitioner has ambiguously discussed the Beneficiary qualifying as both 
a manager and an executive on the record. For instance, in support of the petition, the Petitioner 
included a duty description that included both managerial and executive tasks, and on appeal it states 
that the Beneficiary will be employed "in an executive/managerial capacity." 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, 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 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function 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. 
A petitioner claiming that a beneficiary will perform as a "hybrid" manager/executive will not meet 
its burden of proof unless it has demonstrated that the beneficiary will primarily engage in either 
managerial or executive capacity duties. See sections 10l(a)(44)(A) and (B) of the Act. While in 
some instances there may be duties that could qualify as both managerial and executive in nature, it is 
the petitioner's burden to establish that the beneficiary's duties meet each criteria set forth in the 
statutory definition for either managerial or executive capacity. A petition may not be approved if the 
evidence of record does not establish that the beneficiary will be primarily employed in either a 
managerial or executive capacity. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial or 
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executive-level 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). In determining whether 
a given beneficiary's duties will be primarily managerial or executive, we consider the petitioner's 
description of the job duties, the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve the 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. 
Although the Director evaluated the proffered position solely as that of an executive, we find that the 
Petitioner's lack of clarity as to the Beneficiary's proposed role in the United States leaves initial 
uncertainty as to his intended employment capacity. Therefore, we will analyze both capacities in this 
decision. 
A. Job Duties 
When examining the managerial or executive capacity of a given beneficiary, we will review 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. 8 C.F.R. § 204.5(j)(5). 
On the Form 1-140, Immigrant Petition for Alien Workers, the Petitioner indicated that it was a 
"convenience store with gas station" established onl l2020. 1 It further claimed to have 
a gross annual income of $105,600 and two employees at the time of filing. The Petitioner's initial 
supporting letter claimed that the Beneficiary will serve as its president. 
In a separate statement, the Petitioner identified the Beneficiary's proposed duties as follows: 
The President has the ultimate legal responsibility for everything that goes on in the 
store. He makes most of the final decisions with input from his managers. He is an 
expert at teamwork, setting financial strategies and monitoring the performance of the 
company. 
25% of time is spent: 
The President has scheduled mandated weekly meetings with the store manager to 
review the following business reports: 
• Sales reports 
• Cash flow reports 
• Reconciliation of financial variances, gains or losses 
• Bank reconciliation 
• Inventory Control 
• Contractual Agreements w/vendors 
1 In contrast, corporate documentation from the State of Texas indicates that the Petitioner was incorporated on~I--~ 
2019. 
3 
• Financial agreements with banks and various other lenders 
• Inventory Control 
• Loss Prevention 
• Advertising & Marketing events 
• Employee retention, reviews, hiring or dismissing employees 
• Initiating new product line 
• Future plans for growth and development of the business 
• The Controller has the authority to make all final decisions on financial 
reporting, staffing, advertising, brand marketing, and all contractual 
agreements. 
25% of time is spent: 
• Manage product category and produce marketing programs that leverage 
consumer insights to create strategically aligned sales growth. 
• Develop and build product-level expertise through industry and competitive 
trend analysis and by analyzing program impact. 
• Identify growth opportunities within product lines by understanding consumer 
wants, needs and beliefs. 
• Develop product-focused programs to create growth supported by a compelling 
business case, including sales and profit forecasts that create top line growth 
and franchise profitability. 
15% of time is spent: 
• Develop strategic brief for merchandising materials, and promotions of the 
business. 
• Manage miscellaneous marketing projects. 
10% of time is spent: 
• Evaluate recommendations for promotions and PR activities for product 
programs. 
• Evaluate the staffing levels for the operation to achieve objectives for labor 
efficiency. 
• Oversee the personnel/HR issues including: hiring, reviews, recognition, 
disciplinary, attendance, and grievance. 2 
Executive Decisions made by the President 
Strategizes the financial goal setting, such as reducing debt or setting revenue or 
profitability targets. 
2 We note that the breakdown of the percentage of time the Beneficiary devotes to tasks totals only 75%. 
4 
• He makes decisions on debt reduction which can come from reduction in staff, 
and or initiating hiring freeze, and or freeze any increase in salaries, bonuses, 
etc; 
• He has the discretionary authority to hire, promote and or fire any employees; 
• He has established financial rewards and or other benefits for meeting sales 
goals; 
The President monitors the business is finances and makes decisions regarding the 
company spending, debt service, investment strategies, and profits. 
• He has established lines of credit with banks, and or other financial institutions; 
The President oversees the advertising, and sales events to increase sales. 
• He makes final decisions on the purchases of all inventory, and establishes the 
pricing of the goods; 
The President reviews the annual budget period he monitors the financial report such 
as balance the sheets, cash flow statements, profit and loss statements and departmental 
budgets. The president reviews the tax filings and annual reports to present to lenders 
and bank officers. 
The President is qualified to negotiate future acquisitions, and or negotiate financing 
with lenders for any future business transactions. 
The Petitioner also submitted an organizational chart, indicating that the Beneficiary would directly 
supervise a store manager who in turn would oversee two cashiers. 
The Director issued a request for evidence (RFE), noting that the initial description of duties and 
supporting evidence was insufficient to establish that the Beneficiary would be employed in a 
primarily managerial or executive capacity. The Director further noted that the Petitioner did not 
appear to have the organizational complexity to support the Beneficiary in a primarily managerial or 
executive capacity, highlighting the fact that despite claiming to have four employees on its 
organizational chart, it claimed only two employees on the Form I-140 petition. 
In response, the Petitioner provided no additional description of the Beneficiary's duties or 
clarification regarding its staffing and organizational structure in response to the RFE. 3 Rather, it 
noted that the Beneficiary had already entered the United States and had filed the company's articles 
of incorporation and federal taxes, established a corporate checking account, and negotiated a business 
agreement. 
In denying the petition, the Director determined that the Petitioner's description of the Beneficiary's 
duties was insufficient, noting that the duties as stated did not demonstrate that the Beneficiary would 
3 Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b)(l4). 
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be employed in a primarily executive capacity. The Director farther noted the petitioner's failure to 
resolve the noted discrepancy regarding its staffing levels. On appeal, the Petitioner asserts that the 
Beneficiary's position "will be in an executive/managerial capacity," stating that he will direct the 
management of the company, lead the company to expand its sales and implement a talent management 
system, establish the company's goals and policies, and exercise wide latitude in discretionary 
decision-making. 
The Petitioner also asserts on appeal that it has satisfied the preponderance of the evidence standard 
and contends that "it is more likely than not that the Beneficiary is qualified for I-140 EB-lC petition 
through at least a 51 % certainty." However, the Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. For the reasons 
outlined below, the Petitioner did not demonstrate that the Beneficiary's role will be primarily 
managerial or executive in nature, as the job description the Petitioner offered contains generalities 
that preclude a meaningful assessment of the Beneficiary's actual tasks in the course of the Petitioner's 
daily operations. 
The Petitioner has submitted a duty description and supporting documentation indicating that the 
Beneficiary would be primarily engaged in non-qualifying operational-level duties in the United 
States. For instance, the Beneficiary's duties discuss him producing marketing programs and 
managing miscellaneous marketing projects. Likewise, the Beneficiary's duties also mention him 
overseeing advertising and sales events. Several of these duties suggest the Beneficiary's direct 
involvement in the sale and promotion of its products, rather than the delegation of these lower-level 
non-qualifying duties to his claimed subordinates. 
Whether the Beneficiary is a managerial or executive employee turns on whether the Petitioner has 
sustained its burden of proving that their duties are "primarily" managerial or executive. See sections 
10l(a)(44)(A) and (B) of the Act. Here, the Petitioner does not document what proportion of the 
Beneficiary's duties would be managerial or executive functions and what proportion would be 
non-qualifying. In fact, the Petitioner provided an incongruent breakdown of the time the Beneficiary 
would devote to some duties, which totals only 75% and is not delegated as either managerial or 
executive. The Beneficiary's duties include managerial and executive tasks as well as administrative 
and operational tasks, and the Petitioner does not quantify the time he would spend on these different 
duties. For this reason, we cannot determine whether the Beneficiary would primarily perform the 
duties of a manager or an executive. See IKEA US, Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). 
In addition, the generic descriptions of the Beneficiary's proposed U.S. duties do not credibly 
demonstrate that he would be primarily engaged in qualifying managerial or executive-level tasks. 
For instance, the Director emphasized in the RFE that the Beneficiary's duty description was vague 
and lacked detail. However, the Petitioner did not supplement the record with additional details 
regarding the proposed position or the duties the Beneficiary will perform. We agree that the provided 
duty description lacks credible specifics to substantiate the Beneficiary's primary performance of 
qualifying managerial or executive-level duties. For example, the Petitioner did not detail or provide 
supporting documentation to substantiate the "goals and policies" the Beneficiary will establish or 
explain how he will oversee "advertising and sales events." Likewise, the Petitioner did not articulate 
or document what a "talent management system" is, and how the Beneficiary intends to implement 
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such a system. In fact, the Petitioner's support letters, including the brief submitted on appeal, do not 
clearly articulate the specific industry that it operates in, despite identifying itself as a "gas station with 
convenience store" on the Form 1-140 petition. The Beneficiary's stated managerial and executive 
duties could apply to any managerial or executive employee acting in any business or industry, as his 
duty description includes little detail regarding his specific daily tasks and does not include a 
discussion of the Petitioner's actual business. 
Although we do not expect the Petitioner to articulate and document every managerial or executive 
task to be performed by the Beneficiary, it is reasonable to expect that it would provide sufficient 
detail and documentation to corroborate his performance of qualifying duties, particularly since it 
asserted the Beneficiary was already acting in his role in the United States when the petition was filed 
in 2021 and when it responded to the RFE in 2023. Specifics are clearly an important indication of 
whether a beneficiary's duties are primarily managerial or executive in nature, otherwise meeting the 
definitions would simply be a matter ofreiterating the regulations. 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). 
Although the Beneficiary may hold a managerial or executive title and may manage or direct a portion 
of the business does not necessarily establish eligibility for classification as a multinational manager 
within the meaning of section 101(a)(44)(A) or (B) of the Act. While the Beneficiary may exercise 
discretion over the Petitioner's day-to-day operations and possess the requisite level of authority with 
respect to discretionary decision-making, the position description alone is insufficient to establish that 
his actual duties would be primarily managerial or executive in nature. 
B. Staffing and Organizational Structure 
Beyond the required description of the job duties, we also examine 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. 
As previously discussed, the Petitioner does not clearly articulate whether the Beneficiary would be 
employed in a managerial or executive capacity but does vaguely indicate in the duty description that 
he would oversee subordinate managers. As such, we will first analyze whether the Beneficiary would 
be employed in a managerial capacity. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A) of the Act. Personnel managers are required to primarily 
supervise and control the work of other supervisory, professional, or managerial employees. Contrary 
to the common understanding of the word "manager," the statute plainly states that a "first line 
supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's 
supervisory duties unless the employees supervised are professional." Id. If a beneficiary directly 
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supervises other employees, the beneficiary must also have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. 8 C.F.R. § 204.5(j)(2). 
On the Form 1-140 petition, the Petitioner claimed that it was established in 20204 and had 2 
employees. Its organizational chart, however, listed four employees and indicated that the Beneficiary 
was supported by a store manager and two cashiers. 
In the denial decision, the Director pointed to the fact that the Petitioner did not resolve the discrepancy 
regarding its staffing levels, nor does it address this discrepancy on appeal. Although the Petitioner 
provided job titles and position requirements for the Beneficiary's claimed subordinates, there is no 
evidence in the record to demonstrate that it actually employed such individuals. The Petitioner 
submitted a copy of its 2021 IRS Form 1065, U.S. Return of Partnership Income reflecting that it did 
not pay any wages or salaries in 2021, the year the petition was filed. Similarly, the Petitioner provided 
no payroll records or other documentation, such as quarterly wage and tax reports, to corroborate its 
claimed staffing levels. 
Therefore, the Petitioner has not established that it employed supervisors, managers, or professionals 
subordinate to the Beneficiary when the petition was filed or at any time thereafter. As such, the 
Petitioner has not established that the Beneficiary would be employed as a personnel manager under 
an approved petition.5 The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). Additionally, the Petitioner must resolve inconsistencies and 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter 
ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
For similar reasons, the Petitioner did not demonstrate that the Beneficiary would be employed in an 
executive capacity. The term "executive capacity" is defined as 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 10l(a)(44)(B) of the Act. 
As discussed, the Petitioner provided a statement of duties indicating the Beneficiary's wide 
involvement in the provision of non-qualifying operational tasks directly related to the sale and 
promotion of its products. Further, as noted, the Petitioner provided no evidence to substantiate that 
it had sufficient employees as of the date the petition was filed to elevate the Beneficiary to an 
executive capacity and to primarily relieve him from non-qualifying operational tasks. The Petitioner 
also did not clearly articulate or document the Beneficiary's asserted executive-level duties, such as 
the broad goals and policies he was responsible for establishing. In fact, the evidence strongly suggests 
the Beneficiary's substantial engagement in non-qualifying tasks, given numerous invoices included 
in the record that reflect the Petitioner's acquisition of inventory in 2021, a year when it had no 
4 As noted previously, the Petitioner claims on the Form T-140 that it was established o~ 2020, but provides 
copies of documentation from the State of Texas indicating that it was incorporated on[ I2019. The Petitioner has 
not resolved this discrepancy with independent, objective evidence. Matter ofHo, 19 l&N Dec. 582, 591-92 (BIA 1988). 
5 The Petitioner does not assert that the beneficiary would act as a function manager. 
I
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subordinate employees on staff to support the Beneficiary. Therefore, the Petitioner has not 
demonstrated that the Beneficiary would be employed in an executive capacity. 
III. CONCLUSION 
For the foregoing reasons, the Petitioner has not established by a preponderance of the evidence that 
the Beneficiary would be employed in the United States in a managerial or executive capacity. 
Because the identified basis for denial is dispositive of the appeal, we decline to reach and hereby 
reserve the Petitioner's appellate arguments regarding whether it has a qualifying relationship with the 
Beneficiary's foreign employer, whether the foreign employer continues to do business abroad, or 
whether the Beneficiary was employed abroad in a managerial or executive capacity. See INS 
v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on 
issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 
I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant 
is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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