dismissed EB-1C Case: Retail

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF ABCF- , LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT . 18,2015 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , an operator of retail sporting goods stores, seeks to employ the Beneficiary as its 
president and chief executive officer (CEO) under the immigrant classification of a multinational 
executive or manager. 1 See Immigration and Nationality Act (the Act) § 203(b)(l)(C) , 8 U.S.C. 
§ 1153(b)(l)(C) . The Director , Texas Service Center , denied the petition . The matter is now before 
us on appeal. The appeal will be dismissed. 
I. LAW 
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 ifthe alien, in the 3 years preceding the time ofthe 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 the alien 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. 
1 In an addendum to the Form I-140 petition, the petitioner indicates that it had filed an earlier petition on the 
beneficiary's behalf , with receipt number on July 26, 2005. The Director denied that petition on 
July 26, 2005 , and after the filing of a motion to reop en and reconsider , the Director certified the denial to the AAO for 
review. The petitioner states: "According to the USCIS Online Case Status , both Form 1-140 and Form I-290C are still 
pending ; however , neither the Petitioner , nor the Petitioner's previous Attorney have received any notice regarding the 
appeal. " U.S. Citizenship and Immigration Services (USCIS) records show that the AAO affirmed the denial of the 
petition on April 26, 2006 , and sent copies of the decision to then-current addresses of record of both the petitioner and 
the petitioner's attorney at the time. 
Matter C!f ABCF-, LLC. 
The language of the statute is specific in limiting this provision only to those executives and managers 
who have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of 
that entity, and who are coming to the United States to work for the same entity, or its affiliate or 
subsidiary. 
A United States employer may file Form I-140 to classify a beneficiary under section 203(b)(l)(C) of 
the Act as a multinational executive or manager. The regulation at 8 C.F.R. § 204.5G)(5) states: 
No labor certification is required for this classification; however, the prospective 
employer in the United States must furnish a job offer in the form of a statement 
which indicates that the alien is to be employed in the United States in a managerial 
or executive capacity. Such letter must clearly describe the duties to be performed by 
the alien. 
II. ISSUE ON APPEAL 
The sole issue addressed by the Director is whether the Petitioner has established that it will employ the 
Beneficiary in a managerial or executive capacity in the United States. 
Section 101(a)(44) ofthe Act, 8 U.S.C. § 1101(a)(44), provides: 
(A) 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 
(such 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. 
2 
(b)(6)
Matter of ABCF- , LLC. 
(B) 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 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Finally, 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. Section 
1 Ol(a)(44)(C) of the Act. 
A. Facts 
The Petitioner filed Form l-140 on October 8, 2013. The Petitioner submitted an introductory 
statement dated October 7, 2013, indicating that the Petitioner owns two "brick and mortar store(s)" 
in Florida: The and The statement indicated that the 
Beneficiary's duties would include six key functions (subdivided into more specific tasks), each 
occupying a particular percentage of the Beneficiary's time, as follows: 
Organizational Management Administration 25% 
Financial Management 25% 
External Relations 15% 
Planning Administration 1 7% 
Property Management 1 0% 
Workplace Administration/Management 8% 
An organizational chart showed the Beneficiary at the top level, with four departments on the second 
level: Brick & Mortar Stores, Online Store, Marketing, and Accounting. The chart indicated that an 
"Outside Firm" handled the Petitioner's accounting functions. The chart listed one employee (a 
marketing manager) under Marketing, and one vacant e-commerce manager position under Online 
Store. The remaining department, Brick and Mortar Stores, encompassed a manager and four shop 
assistants. 
On June 5, 2014, the Director issued a request for evidence (RFE), instructing the Petitioner to 
submit 
more detailed job descriptions for the Beneficiary and any subordinates who report directly to 
3 
Matter of ABCF-, LLC. 
him. The Director also requested copies of additional IRS Forms W-2 for the Petitioner's 
employees. 
In response, the Petitioner submitted a revised breakdown of the Beneficiary's duties, showing the 
same six key functions, but with different percentages of the Beneficiary's time: 
Organizational Management Administration 15% 
Financial Management 25% 
External Relations 20% 
Planning Administration 15% 
Property Management 5% 
Workplace Administration/Management 20% 
Within these six major categories, the Petitioner listed several individual functions occupying 2% or 
more of his time. 
The Petitioner identified three full-time managers who report directly to the Beneficiary: a store 
manager; a vacant e-commerce content manager; and a marketing manager. Because the Petitioner 
did not employ the e-commerce content manager at the time of filing, we will not consider this 
position as a subordinate manager. A petitioner must establish eligibility at the time of filing; a 
petition cannot be approved at a future date after the petitioner or Beneficiary becomes eligible 
under anew set offacts. Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
The Petitioner provided position descriptions for the store manager and marketing manager as 
follows: 
Store manager: merchandising - selecting the right merchandise and managing stock levels 
of the selected merchandise; daily store supervision - managing sales team, ensuring the 
quality customer service and resolving potential customer complaints, organizing in-store 
special promotions, reporting the sale figures; monitoring the local and online competition 
and responding to them; analyzing the sales figures and trends and planning/budgeting the 
future sales targets; ensuring compliance with health and safety legislation. 
E-commerce content manager: Overseeing the creation and accuracy of the web content; 
writing up the description for the e-commerce products and ensuring correct price 
information; organizing all e-sales sales activities and e-sales promotions; supplying the 
online customers with the purchased merchandise. 
Marketing manager: creating marketing strategies based on the buying trends in general; 
promoting the store locally with local newspapers and community in general; creating 
customer satisfaction programs, promotional packages with coupons and incentives; 
preparing material for media (TV shots, etc.); preparing materials for social media (FB, 
Twitter, etc.); preparing and promoting own networking and online shopping website 
(www.tennisrus.com). 
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Matter of ABCF-, LLC. 
Further, the Petitioner provided a 2013 IRS Form 1065 U.S. Corporation Income Tax Return 
transcript indicating that the Petitioner earned -$40,050 in net income and paid $58,311 in wages and 
salaries during 2013. The Petitioner's 2013 Form W-2s reflect that the store manager earned 
$11,969.80 and the marketing manager earned $27,050.00. The other four employees that year, all 
shop assistants, earned between $1,417.50 and $8,590.66. 
In the denial notice, the Director stated: "In reviewing the W -2 forms, it appears that the beneficiary 
supervises part-time employees ... and that the beneficiary's subordinates have received less than 
... a full-time professional wage." The Director concluded that "USCIS must question the 
petitioner's ability to employ the Beneficiary in a managerial or executive capacity if it lacks 
sufficient staff to relieve him or her from having to perform primarily non-qualifying duties." 
On appeal, the Petitioner states that the Director's decision is inconsistent and filled with errors, and 
that the Petitioner had submitted "overwhelming evidence that the Beneficiary performed executive 
duties." The Petitioner submits a new organizational chart, sales summaries for 2012-2014, and 
documentation showing that four of the Beneficiary's current or former subordinates hold bachelor's 
or master's degrees. The Petitioner also submits printouts from a new web site. 
Upon review, and for the reasons stated below, we find that the Petitioner did not establish that the 
Beneficiary's proposed position with the petitioning entity can be classified as a position that falls 
within the statutory and regulatory parameters of managerial or executive capacity. 
B. Analysis 
For the reasons discussed herein, the Petitioner has not established that the Beneficiary will be 
employed in a managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, we review the 
totality of the record, starting first with the description of the Beneficiary's proposed job duties with the 
petitioning entity. See 8 C.F.R. § 204.5(j)(5). 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 either in an 
executive or managerial capacity. Id. Published case law has determined that the duties themselves will 
reveal the true nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). We then consider the beneficiary's job 
description in the context of the petitioner's organizational structure, the duties of the beneficiary's 
subordinates, and any other relevant factors that may contribute to a comprehensive understanding of 
the beneficiary's actual duties and role within the petitioning entity. 
The Petitioner submitted two conflicting lists of his own duties, with no explanation for the sometimes 
significant shifts in percentages of allotted duties. The second, more detailed list, repeated on appeal, 
includes many general assertions, such as: "Administer the affairs of the corporation," "Provide vision 
regarding overall financial health of the company," and "Promote effective communication." These 
Matter of ABCF-, LLC. 
statements shed little light on the actual nature of the Beneficiary's day-to-day duties. Other duties are 
said to involve oversight of functions, with no information about who performs those functions. For 
example, one of the Beneficiary's claimed duties is to "[e]nsure that all staff members receive 
appropriate training," but the Petitioner gave no indication of who provides this training. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial 
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 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including 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, the nature of the business, and 
any other factors that will contribute to a comprehensive understanding of a beneficiary's actual duties 
and role in a business. 
The Petitioner claims to operate two separate retail stores, and states that the Beneficiary supervises one 
Manager for its "brick and mortar stores," who in turn supervises four shop assistants. As noted earlier 
in this decision, this manager earned $11,969.00, and each shop assistant earned between $1,417.50 and 
$8,590.66 in 2013. Because the Petitioner operates two retail businesses, the total number of hours 
worked by its employees is relevant in determining how work is allocated within the company and 
whether the employees are available to relieve the Beneficiary from performing non-qualifying 
operational, administrative, and first-line supervisory duties. 
The Petitioner has not demonstrated that it employs a full time store manager or shop assistant staff 
Given the nature of the retail business, the Petitioner's operating levels, and its staffing levels at the time 
of filing, the subordinate manager would reasonably need to perform the duties of the store manager 
and the shop assistants in order to keep the retail store staffed. Therefore, the Petitioner has not 
demonstrated that the Beneficiary performs primarily managerial or executive duties with respect to its 
"brick and mortar stores" because the Beneficiary does not have a sufficient staff to relieve him of non­
managerial or non-executive duties. 
Further, the marketing manager does not manage or supervise any subordinate employees, and his job 
duties do not reflect any managerial duties. In evaluating whether the Beneficiary manages professional 
employees, we must evaluate whether the subordinate positions require a baccalaureate degree as a 
minimum for entry into the field of endeavor. Section 10l(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), 
states that "[t]he term profession shall include but not be limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or 
seminaries." The term "profession" contemplates knowledge or learning, not merely skill, of an 
advanced type in a given field gained by a prolonged course of specialized instruction and study of at 
least baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor. 
Matter ofSea, 19 I&N Dec. 817, 818 (Comm'r 1988); Matter of Ling, 13 I&N Dec. 35,36 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686, 687-8 (D.D. 1966). The petitioner has not demonstrated that the 
marketing manager position meets the statutory definition of professional.Therefore, we cannot 
conclude that the marketing manager functions in a professional, managerial, or supervisory role. 
(, 
Matter of ABCF-, LLC. 
Finally, the Petitioner claims that the Beneficiary supervises an e-commerce manager position, which 
was vacant at the time of filing. Because the Petitioner did not employ the e-commerce content 
manager at the time of filing, it is reasonable to conclude that the Beneficiary assumes the non­
managerial and non-executive duties associated with that position. A petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or 
Beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm'r 1971). 
In the present matter, the totality of the record does not support a conclusion that the Beneficiary's 
subordinates are supervisors, managers, or professionals. Overall, the record indicates that the 
Beneficiary's subordinates, and more likely than not the Beneficiary himself, would need to perform the 
actual day-to-day tasks of operating the retail stores and the marketing tasks. As such, the Petitioner has 
not provided evidence that the Beneficiary qualifies as a personnel manager. The Petitioner does not 
claim that the Beneficiary will serve in a function manager capacity. 
The Petitioner asserts that it has consistently portrayed the Beneficiary as an executive, but the Director 
has erroneously focused on the requirements of a manager. For instance, the Petitioner contends that 
that the RFE had focused on "evidence of the Beneficiary's executive role ... yet the denial is based on 
failure to supervise professional staff which is a role reserved for a manager." The denial notice 
discusses managerial functions, but also includes the finding that the Petitioner has "not established that 
the beneficiary will be employed in an 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 101(a)(44)(B) of the Act, 8 U.S.C. § 
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct[] the management" and 
"establish[] the goals and policies" of that organization. Inherent to the definition, the organization 
must have a subordinate level of managerial employees for the beneficiary to direct and 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. The 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. 
Here, the Petitioner emphasizes that the Beneficiary's role of President and CEO as evidence of his 
performance of qualifYing executive duties. As discussed, the Petitioner's description of the 
Beneficiary's duties, considered within the totality of the evidence, does not support a finding that the 
Beneficiary primarily focuses on the broad goals and policies of the organization rather than its day-to­
day operations. 
For the reasons discussed above, the Petitioner did not provide sufficient detail regarding the 
Beneficiary's job duties to determine that he would serve in a qualifYing executive capacity. In 
Matter of ABCF-, LLC. 
addition, the Petitioner did not demonstrate that the Beneficiary has subordinate staff to relieve him 
from performing non-qualifying executive duties. The appeal will be dismissed. 
We find that the Petitioner has not provided reliable, probative evidence sufficient to establish that the 
Beneficiary will be employed in the U.S. in a qualifying managerial or executive capacity. For this 
reason, USCIS cannot approve this petition. 
III. CONCLUSION 
We will dismiss the appeal for the above stated reasons. 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not 
met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of ABCF-, LLC, ID# 13331 (AAO Sept. 18, 2015)