dismissed EB-1C Case: Retail

U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF S-1- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 14, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION 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. Immigration and Nationality Act (the Act) section 203(b)(l)(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. We dismissed a subsequent appeal. The matter is now before us on a motion 
to reopen and motion to reconsider. 
On motion, the Petitioner contends that the Beneficiary will be primarily engaged in executive or 
managerial duties, and that our denial based on the salaries of the employees and the size of the 
business was improper. 
Upon review, we will deny the motion to reopen and deny the motion to reconsider. 
I. MOTION REQUIREMENTS 
A petitioner must meet the formal filing requirements of a motion and show proper cause for 
granting the motion. 8 C.F.R. § 103.S(a)(l). A motion to reopen must state new facts and be 
supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must establish 
that our decision was based on an incorrect application of law or policy and that the decision was 
incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F .R. 
§ 103.5(a)(3). A motion to reconsider must be supported by a pertinent precedent or adopted 
decision, statutory or regulatory provision, or statement of U.S. Citizenship and Immigration 
Services (USCIS) or Department of Homeland Security policy. We may grant a motion that meets 
these requirements and establishes eligibility for the benefit sought. 
Matter of S-1- Inc. 
11. ANALYSIS 
The issue in this matter is whether the Petitioner has satisfied the motion requirements to overcome our 
prior appellate decision finding that the Petitioner has not established that the Beneficiary will be 
employed in a managerial or executive capacity in the United States. 1 
A Executive Capacity 
The statutory definition of the term "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 direct the organization. Section 10l(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 beneficiary must 
primarily focus 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. 
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 
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. § 204.5G)(3). As noted in our appellate decision, we 
agree with the Director's determination that the initial job description for the offered position did not 
demonstrate that the Beneficiary would primarily perform executive duties due to its general and 
vague nature. We also affirmed the Director's finding that, in response to a request for evidence 
(RFE) and notice of intent to deny (NOID), the Petitioner expanded the job description and added a 
number of tasks that were not readily identified as executive in nature.2 We further noted that a 
1 On motion, the Petitioner indicates that the qualifying foreign entity is no longer in operation. Pursuant to 8 C.F.R. § 
214.2(l)(ii)(G), the termination of the qualifying foreign entity's business would bar approval of this petition. Even if the 
Petitioner were to overcome the grounds of denial discussed herein, it must resolve this issue in any future filing in this 
matter. 
2 The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been 
2 
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Matter of S-1- Inc. 
number of other duties were assigned an unrealistic amount of time, given the nature of the 
Petitioner's operation. 
Finally, we found that the Petitioner did not provide clarifying information on appeal about the 
Beneficiary's job duties, nor did it specifically address its original claim that the Beneficiary would 
be employed in an executive capacity. Thus, we found that the Petitioner had not provided sufficient 
evidence to clarify the Beneficiary's executive job duties within the scope of its operation and that 
his duties were not primarily those of an executive. 
On motion, the Petitioner reiterates the Beneficiary's duties, stating that the Beneficiary will spend 
10-12 hours per week meeting with the manager; 10-12 hours per week reviewing financial 
documents; 2 hours per week meeting with professional advisors; 2 hours per week to inspect the 
premises for regulatory compliance; 2 hours per week for "staff meetings, hire/fire personnel as 
necessary;" and 5 hours per week to establish and maintain relationships with suppliers and vendors. 
It states that with regard to the 2 hours per week of staff meetings and hiring and firing personnel, 
that the time is primarily spent in staff meetings which are a routine part of any business. It states 
that, regarding the 2 hours per week for meeting with professional advisors, it is routine for a 
company with its operating hours and gross sales to speak to its bookkeeper, accountant and attorney 
at least 51 minutes each day. The Petitioner made similar assertions on appeal, and in dismissing the 
appeal we noted that the Petitioner had not demonstrated that this was a reasonable allocation of the 
Beneficiary's time, given the size and scope of the Petitioner's operation. As we stated in our prior 
decision, the Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). On motion, the Petitioner 
provides no support for these assertions. 
With regard to the 10-12 hours per week reviewing financial documents, the Petitioner states that the 
Beneficiary does not "assume any operational tasks that concern matters of accounting and 
finances." Instead, he spends about "1. 71 hours each day reviewing countless small transactions" in 
order to "direct the manager and establish goals upon reviewing the financial data of the liquor 
store." However, on motion, the Petitioner does not demonstrate that reviewing small transactions is 
an executive duty and does not discuss the prior findings that the Petitioner has not submitted 
independent objective evidence to demonstrate who in the organization will assume the operational 
tasks of finance and accounting. We stated in our prior decision that the Petitioner did not establish 
that its financial needs would require weekly meetings with professional financial and accounting 
advisers. 3 On motion, the Petitioner claims that the "organizational chart does include an accounting 
established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, a petitioner cannot offer a new position to a 
beneficiary , or materially change a position's title, its level of authority within the organizational hierarchy, or its 
associated job responsibilities. A petitioner must establish that the position offered to a beneficiary, when the petition 
was filed, merits classification as a managerial or executive position. See Matter of Michelin Tire Corp., 17 I&N Dec. 
248, 249 (Reg'! Comm 'r 1978). If significant changes are made to the initial request for approval, a petitioner must file a 
new petition rather than seek approval of a petition that is not supported by the facts in the record. 
3 We noted in our appeal decision that an employee list submitted by the Petitioner indicated that would 
perform inventory and account management, whereas an organizational chart submitted by the Petitioner lists 
3 
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Matter of S-1- Inc. 
and finance department" but neglects to address the findings on appeal that specifically detailed the 
inconsistencies and deficiencies with that claim. 
The Petitioner also asserts that we identified a number of functions within its organization that were 
non-qualifying, such as interacting with customers and vendors regarding issues of credit, contract 
renewal, customer satisfaction, and pricing. It asserts that neither the statute nor regulations define 
managerial and executive capacity to exclude such activities, and citing Ass 'n of Data Processing v. 
Ed Of Governors, 745 F.2d 677, 683-84 (D.C. Cir. 1984), claims that our interpretation was 
arbitrary and capricious. We disagree. The statutory definition of the term "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 direct the organization. 
Section 10l(a)(44)(B) of the Act. Inherent to the definition, the beneficiary must primarily focus on 
the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. While performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify a beneficiary, a petitioner must prove that the beneficiary will be primarily 
engaged in managerial or executive duties, as opposed to ordinary operational activities alongside 
the Petitioner's other employees. See, e.g., Family Inc. v. USCIS, 469 F.3d at 1316; Champion 
World, 940 F.2d at 1533. As noted above, the Petitioner has not met that burden. 
In sum, we find that the Petitioner has not provided sufficient evidence on motion 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, on appeal, we also examined 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 understanding the Beneficiary's actual 
duties and role within the petitioning organization. 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. 
The Petitioner provided a new organizational chart in response to the RFE that showed an 
as an accountant and indicates that another employee would perform the inventory function. We also noted that the 
Petitioner 's organizational chart identified as its accountant and, therefore, the organizational chart is 
inconsistent with a 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. We further 
noted that the RFE expressly instructed the Petitioner to identify and provide supporting evidence 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 claimed to have provided the Petitioner since 2004. In 
response to the NOID, the Petitioner provided a new letter from claiming that she started providing accounting 
services to the Petitioner in 2005, not in 2004, as stated in her original letter. 
4 
Matter of S-1- Inc. 
organizational hierarchy and listed position titles that are inconsistent with the previously submitted 
document. In the subsequent NOID, the Director indicated that the Petitioner's organizational 
hierarchy lacked sufficient staffing to support the Beneficiary in an executive position. The 
Petitioner's response did not show who it employed as of the filing date of the petition, and did not 
resolve the inconsistencies between the original employee list and the organizational chart that was 
submitted in response to the RFE. 
In our appeal decision, we found that the Petitioner had not provided sufficient evidence to show that 
at the time of filing in January 2016, 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. In analyzing the staffing levels we took into account the reasonable needs 
of the Petitioner, in light of the overall purpose and stage of development of the organization. See 
section 10l(a)(44)(C) of the Act. We specifically noted that the record did not support the 
Petitioner's claim of employing eight people at the time of filing. We further noted the low wages 
paid to the employees and found that the wages paid were not commensurate with full-time 
employment. If not employed full-time, we found that questions remain about the ability of the 
small staff to relieve the Beneficiary from performing the non-qualifying duties associated with 
running the liquor store. This was especially important given the number of administrative and 
operational tasks assigned to the Beneficiary in the most recent job descriptions. 
On motion, the Petitioner states that it employed five employees starting in September 2017 and 
submits tax documents showing that it had 4-5 employees starting in late 2017, paying $35,200 in 
wages and $48,000 in officer compensation that year. However, the tax documents also show that 
the Petitioner had no employees in July or August of 2017, and previous tax documents were not 
provided on motion. As the submitted documentation does not pertain to the time of filing, it is not 
sufficient to resolve the inconsistencies arising from the Petitioner's characterization of its staff at 
the time of filing. The Petitioner must resolve present inconsistencies with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
On motion, the Petitioner further argues that the minimum wage in Florida is $8.25 per hour, and 
that the low wages paid to its employees do not indicate that that the Beneficiary would be unable 
perform primarily executive duties. As noted in our appeal decision, the Petitioner claimed that it 
had eight employees at the time of filing. In response to the RFE, it provided IRS Forms W-2, Wage 
and Tax Statements, for 2015 for eight employees. Aside from the Beneficiary, the highest paid 
employee earned a salary of $12,000. The six remaining employees' salaries ranged from $9600 to 
$800. We noted that 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 response 
to the NOID, the Petitioner provided a payroll document listing each employee's name and the dates 
and amounts that employee was paid in 2015, but it did not indicate the full-time or part-time status 
of its employees. If its highest paid employee worked full-time (40 hours per week) for the entire 
year, that employee's salary would have been $5.77 per hour, which is well below the minimum 
wage. On motion, the Petitioner does not address the full-time or part-time nature of the positions. 
Given the nature of the Petitioner's business, we cannot determine that the Beneficiary would be 
relieved from performing non-qualifying duties without an accurate picture of the staff. 
5 
Matter of S-1- Inc. 
The Petitioner also cites Nat'l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989) 
andMarsJewelers, Inc. v. INS, 702F. Supp. 1570, 1574 (N.D. Ga. 1988)to stand for the proposition 
that the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will act 
primarily in a managerial or executive capacity. First, we note that the Petitioner has not furnished 
evidence to establish that the facts of the instant petition are analogous to those in Nat 'l Hand Tool 
Corp., where the Fifth Circuit Court of Appeals decided in favor of the former Immigration and 
Naturalization Service (INS), or Mars Jewelers, Inc., where the district court found in favor of the 
plaintiff. With respect to Mars Jewelers, we are not bound to follow the published decision of a U.S. 
district court in matters arising within the same district. Matter of K-S-, 20 I&N Dec. 715 (BIA 
1993). Although the reasoning underlying a district judge's decision will be given due consideration 
when it is properly before us, the analysis does not have to be followed as a matter of law. Id at 
719. 
In both Nat'l Hand Tool Corp. and Mars Jewelers, Inc., the courts emphasized that the former INS 
should not place undue emphasis on the size of a petitioner's business operations when reviewing 
managerial or executive capacity. We have long interpreted the regulations and statute to prohibit 
discrimination against small or medium-size businesses. However, consistent with both the statute 
and the holding of Nat'l Hand Tool Corp., the Petitioner is required to establish that the 
Beneficiary's position consists of primarily managerial or executive duties and that it will have 
sufficient personnel to relieve the Beneficiary from performing operational and/or administrative 
tasks. Like the court in Nat'l Hand Tool Corp., 889 F.2d at 1472, n.5., our holding is based on the 
conclusion that the Beneficiary is not primarily performing executive or managerial duties and does 
not rest on the size of the Petitioner. 
The petitioner also cites Brazil Quality Stones v. Chertoff, 531 F.3d 1063, 1070 n.10 (9th Cir. 2008), 
for the proposition that a petitioner's small size alone cannot support a finding that its employee is 
not acting in a managerial or executive capacity. However, the reasonable needs of a petitioner will 
not supersede the requirement that a beneficiary be "primarily" employed in a managerial or 
executive capacity as required by the statute. Id. at 1070 n.10; see section 10l(a)(44)(B) of the Act. 
Here, we determined that the Beneficiary is not primarily performing executive or managerial duties; 
we did not base our finding on the size of the Petitioner. 
B. Managerial Capacity 
In our appeal decision, we also addressed the Petitioner's claim that the Beneficiary and his 
subordinates are function managers. The term "function manager" applies generally when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. See section 
10l(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. We 
determined that 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 
Matter of S-1- Inc. 
function. We found that the Petitioner has also 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, we found that the Petitioner has not 
established that the Beneficiary would manage an essential function within the petitioning 
organization. 
On motion, the Petitioner cites Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), 
for the proposition that a function manager may establish seniority with respect to the function 
managed rather than within the organizational hierarchy. This is correct, but in this case, as was 
explained in our prior decision, the Petitioner has not demonstrated that the Beneficiary meets the 
requirements to be deemed a function manager. The Petitioner has not defined what function the 
Beneficiary will manage and has not established that any such function claimed to be managed by 
the Beneficiary is essential to the organization. On motion the Petitioner does not address these 
findings or provide any additional evidence to demonstrate that the Beneficiary will be employed as 
a function manager. 
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 managerial or executive capacity. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or 
reconsideration and has not overcome the grounds for dismissal of its appeal. The motion to reopen 
and motion to reconsider will be denied for the above stated reasons, with each considered an 
independent and alternative basis for the decision. 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. The Petitioner has not met that burden. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of S-I- Inc., ID# 22883 54 (AAO Mar. 14, 2019)