dismissed EB-1C Case: Retail

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-B-P-(US) CORP. 
No_n-Precedent Decision of.the 
Administrative Appeals Office 
DATE: FEB . 12, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
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The Petitiornfr, a gas station and convenience -store operation, seeks to permanently employ the 
Beneficiary as its "president/CEO" under the first preference immigrant classification for 
multinational executives . or managers. · Immigration and Nationalit y Act (the Act) 
section 203(b)(l)(C) , 8 U.S.C. § I 153(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 Nebraska Service Center denied the petition concluding that the Petitioner did 
not establish, as required , that it would employ the Beneficiary in an executive capacity. 
On appeal, the Petitiorier contends that the Director misinterpreted the reported 2017 earnings for its 
employees and points to evidence of its business expansion following the filing of this petition. 
Upon de nova review, we find that the Petitioner has not overcome the basis for denial. Therefore, 
we will dismiss the appeal. 1 · 
I. LEGAL FRAMEWORK 
Ari immigrant visa is avaiiable 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 manage .rial 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 
1 The record reflects that the Petitioner submitted a properly executed Form G-28. Therefore, ~e will recognize 
the attorney who submitte~ the properly executed Form G-28, as the attorney of record in this proceeding. 
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Matter of L-B-P-(US) Corp . 
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). 
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II. U.S. EMPLOYMENT [NAN EXECUTIVE CAPAClTY 
The Petitioner claims that the Beneficiary will be employed in an executive capacity . Therefore, we 
will only address this claim and we will not discuss whether the Beneficiary ' s proposed employment 
would be in a managerial capacity. 
· "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 direGtors, or stockholders of the organization. Section 
10l(a)(44)(B) of the Act. 
When examining the 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 dearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in an executive 
capacity. 8 C.F.R. § 204.5(j)(5). Beyond the required description of the job duties, we 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 1that will contribute to understanding a beneficiary ' s actual 
duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary ' s job duties along with evidence of 
the nature of the Petitioner ' s business, its staffing levels, and its organizational structure. 
A. Duties 
Based on the statutory definition of executive capacity , the Petitione,: 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, 
l316.(9th Cir. 2006); Champion World, 940 F.2d 1533. 
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 an executive 
capacity . See 8 C.F.R. § 204.5(j)(5). 
In a supporting cover letter, the Petitioner stated , and provided evidence showing , that prior to filing 
this petition it purchased a gas station/convenience store in ___ California. Although the 
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Matter of L-B-P-(US) Corp . 
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Petitioner provided purchase contracts showing its intent to buy two more gas stations, there is no 
evidence showing that the_ Petitioner had purchased the gas stations in and 
California by the time this petition was filed. The Petitioner's initially submitted. organizational 
chart corroborates the fact that the Petitioner owned and operated a single gas station when this 
petition was filed. 
The Petitioner also provided the Bent;ficiary's job description , which is primarily comprised of 
broad job responsibilities and does not list the Beneficiary's specific daily job duties within the 
context of a single gas station/convenience store. operation. The Petitioner stated, in part, that the 
Beneficiary will focus on the following job responsibilities: 
• Planning and implementing operation strategies; 
• Establishing performance goals and sales targets; 
. • Reviewing operational repo11s and performance data; 
• Adjusting operational policies and approving "promotional strategies, sale incentive 
programs and discount schedules"; 
• Directing and supervising "managers and employees" and making hiring and firing 
decisions; 
• Exercising authority over distribution of "human power and financial resources" and 
delegating authority to subordinates; 
• Reviewing "opportunities and terms for business alliance and affiliation," negotiating "terms 
of acquisitions," and signing business agreements; and 
• . Directing "marketing developing operations." 
In a request for evidence (RFE), the Director instructed that the Petitioner to provide a statement 
clearly listing the Beneficiary's specific daily tasks and th~ ✓ percentage of time he would allocate to 
each activity. For further clarification, the Director also asked the Petitioner to provide a description 
of its products and services, a list of the productive and administrative tasks necessary to provide the 
products it offers, and a statement explaining who carries out those non-executive tasks. 
In response, the Petitioner resubmitted the original job description and added a breakdown of 
activities to elaborate on that description. In doing so, the Petitioner made repeated references to the 
Beneficiary's interaction with and assistance from . a "management team," "executives and 
managerial employees ," a chief operations officer (''COO"), and a chief financial officer, claiming 
that the Beneficiary would allocate approximately 35% of his time to Job duties that entail 
interactions with these subordinates. We note, however, that a COO was not part of the Petitioner's 
organizati9n at the time of filing. Although the RFE response contains an updated organizational 
chart that illustrates a more developed staffing structure and organizational hierarchy, eligibility 
must be established based on the. circumstances that existed starting from the time of the filing. See 
8 C.F.R. § 103.2(b)(l) .. 
According to the organizational chart that illustrates the Petitioner's organizational hierarchy at the 
time of filing, the Petitioner's "management team" consisted of one gas station manager, a manager 
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Matter of L-B-P-(US)Corp. 
qfthe "investment divisioi:i," and one employee who assumed the position of "Vice President/CFO." 
It is unclear whether these employees constitute a "management team" that will advise the 
Beneficiary and support him in a role whose primary focus will. be to formulate ·policies, set 
company goals, and make executive decisions. For instance, we note that the manager of the 
investment branch is tasked with managing "real estate re-development projects" and overseeing a 
construction work schedule. However, the record does not show that at the time of filing any such 
projects were under way. It is therefore unclear how the investment branch manager was 
contributing to a "management team" and what functions he performed to support the Beneficiary at 
the time this petition was filed, when there appeared to be no "re-development projects" in progress. 
The Petitioner also used ·vague terminology to describe a number of the Beneficiary's job duties. 
For instance, parts of the job description indicate that the Beneficiary would "[ c ]onsider and evaluate 
measures to address operational issues," "adjust existing qperational policies [and] promotion 
strategies," instruct management on ·daily operations, and hold meetings and consult with executives 
and managers. Although these vague statements convey a general ide~ about the Beneficiary's 
discretionary authority in all ·business matters, they do not specifically identify any "operational 
issues" or ~'operational policies," nor do they provide true insight as to his proposed daily actions 
within the specific context·ofa gas station/convenience store operation; rather, the listed job duties 
are so vague that they can be broadly applied to most individuals who occupy top-tier positions 
within a wide range of industries and organizations. We note, however, that reciting the 
Beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the Beneficiary's daily job duties. Specifics are clearly 
an important indication of whether a beneficiary's duties are primarily executive in nature; otherwise 
meeting the definitions would simply be a matter of reiterating 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). A limited part 
of th~ job description contained more detailed information, indicating that the Beneficiary would 
approve "promotional strategies, sale incentive programs[,] and discount schedules." However, the 
Petitioner did not explain how these references are relevant to its own retail operation where sales 
take place within the limited scope of a gas station/convenience store. 
On appeal, the Petitioner does not further elaborate on the Beneficiary's job duties or focus on his 
position at the time of filing. Rather, the Petitioner broadly states that the Beneficiary "primarily 
functions 'to direct the management' and 'establish the goals and policies'·" of its organization, 
emphasizing its staffing expansio·n to· show that tpe Beneficiary has subordinates to· direct and 
supervise. As noted earlier, however, any developments that took place after this petition was filed, 
· including the hiring of more staff or purchasing an additional gas station, are not probative for the 
purpose of establishing eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l). Further, 
describing business developments that occurred after the petition was filed does not clarify which 
specific tasks the Beneficiary was projected to perform at the time cf filing, prior .to any added 
staffing or purchase of additional gas stations. · 
While the Beneficiary inay exercise discretion over the Petitioner's day-to-day operations and 
possess· the requisite level of authority with respect to discretionary decision-making, these elements 
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Matter of L-B-P-(US) Corp. 
alone are not sufficient to establish that his actual duties, as projected at the time of filing, would be 
primarily executive i11 nature. As noted previously, the actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108, a.ff'd, 905 F.2d 41. 
As such, a detailed job description is critical to a determination of whether the Beneficiary would be 
employed in an executive capacity. Here, the Petitioner did not identify specific tasks or assign time 
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allocations in such a way that would establish that the Beneficiary would spend his time primarily 
performing executive tasks .. Instead, the Petitioner broadly relied on the Beneficiary's key role in 
making business decisions and overseeing the company's staffing and finances to establish that he 
would be employed in an executive capacity. Despite the Petitioner's- intent to expand its operation, 
we must evaluate the Beneficiary's· proposed employment within the context of a single gas 
station/convenience store, which comprised the entire operation at the time of filing. The Petitioner 
did not clarify what specific tasks the Beneficiary was assigned to perform within that context or 
establish that those tasks would be primarily executive in nature. · 
B.. Starfing 
B~yond 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 ~ature of the business along with 
any other factors that will contribute to understanding the Beneficiary's actual duties and role within 
the petitioning organization.. . 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we take into accoum the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 10l(a)(44)(C) of the Act. 
The Petitioner claimed 11_ employees at the _time of filing and provided corroborating documents, 
including a quarterly tax return and· wage report for the 2017 second quarter and an organizational 
chart. The organizational chart depicted the Beneficiary atthe top of the hierarchy, subordinate only 
to a board of directors. It showed a vice president/CFO, an investment branch manager, and a gas 
station manager as the Beneficiary's three subordinates. 
In the RFE response, the Petitioner provided an updated organizational ch;ut along with a payroll 
summary and IR,S Form W-2 statements for 2017. Both the W-2s and the organizational chart 
indicated that the Petitioner-had expanded its operation to include two additional fully staffed gas 
station/convenience stores. The organizational chart also showed-that the Petitioner contracted an 
accountant, hired a chief operations officer, and created a separate position for a CFO so that the 
vice president was relieved from having to carry out the duties of that position. However, because 
the updated chart reflects organizational changes that took place after the petition was filed, we will 
not consider this information for the purpose of establishing the Petitioner's eligibility at the time of 
filing. We note that the employee job descriptions that the Petitioner provided for employees listed 
in the updated organizational chart also cannot be considered, as they ·do not pertain to the positions 
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Matter of L-B-P-(US) Corp. 
depicted in the original organizational chart, which reflects the Petitioner's ·staffing at the time of 
filing. 
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In the denial decision, the Director observed that the record contains 22 Form W-2s and found that a 
number of employees were paid wages consistent with part-time, rather than full-time, employment. 
The Director concluded that the Petitioner was not adequately staffed to elevate the Beneficiary to 
the level of a manager or executive at the time of filing. 
On appeal, the Petitioner adequately addresses the Director's concerns about the 22 Form W-2s. 
Namely, it states that it acquired· multiple new employees when it purchase~ a se<?ond gas station in 
September 2017 and explains that the Form W-2s it issued to those new employees only represented 
the wages they earned while working for the ·Petitioner from September 2017. The Petitioner also 
lists termination dates for several employees, explaining that some employees worked for only a 
brief period. The Petitioner correctly states that these factors are relevant and help to assess wage 
information it provided in the 2017 Form W-2s. · 
Despite the Petitioner's credible explanation addres~ing the Director's concem·s, the Petitioner places 
undue focus on events and circumstances that arose after this petition was filed. As noted earlier, 
~ligibility- must be based on facts and circumstances that existed at the time of the filing and 
continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Since the Petitioner had only one gas 
station at the time this petition was filed, any further acquisitions or business developments that took 
place after that time cannot be considered in determining the Petitioner's eligibility at the time of 
filing. Although the Petitioner now offers a job description for the vice president/CFO, a position 
that was part of its organization at the time of filing, that job description primarily consists of vague 
statements that somewhat overlap with the Beneficiary's own job description. Namely, the 
Petitioner states that the -vice president/CFO will participate in the development of business. plans 
and operation strategies, oversee ·business op~rations and review the company's performance, 
address issues, and adjust operational policies. Although the Petitioner also c_laims that the vice 
president/CFO oversees· subordinate managers and employees, the orga11izational chart does not 
corroborate this claim and instead indicates that the Beneficiary would oversee . the- gas station 
manager and investment branch manager, which are the only managerial position titles in the chart, 
aside from the vice president/CFO himself. The Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The Petitioner also states that the vice president/CFO is responsible for managing customer relations. 
However, the only customers the Petitioner appears to have had at the time of filing are those that 
pertained to its gas station/convenience store operation; it is unclear why the vice president/CFO 
would be involved in customer,.-related issues when the store was equipped with a manager and 
assistant manager at the time of filing. The P~titioner briefly states that the gas station manager 
oversees the operations of the gas station, while the manager of the real estate division manages "re­
development projects," negotiates contracts, and monitors construction schedules. As noted earlier, 
. the Petitioner had not yet acquired any properties that would be subjc;:ct to "re-development" or 
construction. As such, it is unclear how this job description applies to the real estate _manager's 
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Matter of L-B-P-(US) Corp. 
position at the time this petition was filed. These defi~iencies preclude us from understanding the 
subordinate staffs role in-supporting the Beneficiary and relieving hiin from having to allocate his 
time pri~arily to non-execu_tive job duties. 
Lastly, the Petitioner notes that USCIS approved L-1 petitions that had been previously filed on 
behalf of the beneficiary. The record of proceedings does not contain copies of the visa petitions 
that the Petitioner claims were previously approved. It must be emphasized that each petition filing 
is a separate proceeding with a separate record. In making a determipation of statutory eligibility, 
USCIS is limited to the information contained in -that individual record of proceedings. 8 C.F.R. . . 
§ 103.2(b)(l6)(ii). Despite any number of previously approved petitions, USCIS does not have any 
authority to confer an immigration benefit when a petitioner fails to meet its burden of proof in a 
subsequent petition. See Section 29, I of the Act. 
Accordingly, in light of the Beneficiary's deficient job description and the ambiguities surrounding 
the Beneficiary's subordinates within the scope of the Petitioner's business activities at the time of 
filing, we cannot conclude that the Petitioner would employ Beneficiary in an executive capacity. 
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 an executive capacity. The appeal will be dismissed for this 
reason. 
ORDER: . The appeal is dismissed. 
Cite as Maller of L-B-P-(US) Corp., ID# 2051390 (AAO Feb. 12, 2019) 
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