dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G&DW-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN.24.2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a distributor and retailer of cell phones and accessories, seeks to permanently employ 
the Beneficiary as its president and CEO under the first 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)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Texas Service Center denied the petition. concluding that the Petitioner did not 
establish. as required, that the Beneficiary would be employed in the United States in a managerial 
or executive capacity. The Director further found that the Petitioner did not establish that it is "a 
legal entity desiring and intending to employ the Beneficiary" due to a discrepancy in the record 
regarding the Petitioner's federal employer identification number (FEIN). 
On appeal, the Petitioner asserts the Director overlooked extensive evidence of the Petitioner's 
staffing levels and its explanation regarding the FEIN discrepancy. which resulted in the erroneous 
denial of the petition. After our preliminary review of the appeal, we issued a request for evidence 
(RFE) and have received the Petitioner's timely response. 
Upon de novo review, we will withdraw the Director's determination that the Petitioner is not a legal 
entity that intends to employ the Beneficiary. The Petitioner submitted sufficient evidence to 
corroborate its FEIN and provided a reasonable explanation for the discrepancy noted by the 
Director. However. as the Petitioner has not overcome the remaining ground for denial. we will 
dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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. 
Maller ofG&DW-, Inc. 
The Form I-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 aftiliate 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 ). 
"Managerial capacity" means as 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 
IOI(a)(44)(A) ofthe Act. 
"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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (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 IOI(a)(44)(C) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in a managerial or executive capacity. This finding was based primarily on the 
Director's determination that there were discrepancies in the record regarding the Petitioner's 
staffing levels. and thus insufficient evidence to show that the Beneficiary's subordinate staff would 
be able to relieve him from performing the non-managerial duties required tor the day-to-day 
operations ofthc Petitioner's business. 
On appeal, the Petitioner maintains that the Director did not give sufficient weight to evidence of the 
Petitioner's staffing, including state and federal quarterly tax returns showing the number of 
employees. We issued an RFE to request further information regarding the scope of the Petitioner's 
operations at the time of tiling. as well as evidence regarding the company's current operations. 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. § I 03.2(b )(I). 
2 
Matter ofG&DW-, Inc. 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be performed by the Beneficiary. Beyond the required description of the job 
duties, users reviews the totality of the evidence when examining a beneficiary's claimed managerial 
or executive capacity, including 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. Accordingly. our analysis of this issue will focus on 
the Beneficiary's duties as well as the company's statling levels and reporting structure. 
A. Duties 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial or executive capacity. Champion World. Inc. 
v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the 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 ·Family Inc. v. USCIS. 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner, which operated two retail cell phone stores at the time of filing in February 2010. did 
not provide a detailed job description with its initial evidence. The Petitioner provided the following 
description of the Beneficiary's duties in response to our RFE: 
• Direct the Management and Discretionary Functions (40%): Formulate plans. 
oversee growth and direct the operations of the Company at the highest level of 
authority. 
• Direct the Development Functions (30%): Direct the overall development of the 
Company at the highest level of authority. 
• Direct the Financial Functions (15% ): Supervise and oversee the financial 
operations of the Company at the highest level of authority. 
• Direct the Marketing Functions (15%): Direct the marketing objectives and 
programs of our company. 
The Petitioner also identified the ''specific tasks" associated with each area of responsibility. For 
example, the Petitioner indicated that the Beneficiary's responsibility to "direct the management" of 
the company would require him to establish "strategies and policies" and "goals and policies." to 
"analyze the operations" and "supervise productivity," and to ''organize growth'' by making 
pertinent decisions. The Beneficiary's responsibility for directing "development functions'' required 
him to establish commercial relationships in the United States and abroad, identify new markets and 
opportunities for expansion to Latin America, direct negotiations with clients, oversee development 
of the business, and supervise business processes. 
The description, while lengthy, does not provide sufficient insight into the nature of the 
Beneficiary's duties on a day-to-day basis within the context of the Petitioner's retail business. 
Rather, the broad duties listed could apply to any managerial or executive employee within almost 
3 
Matter olG&DW-, Inc. 
any type of business. The Petitioner did not offer examples of goals. strategies. or policies that the 
Beneficiary was expected to establish, explain the specific tasks he would perform to supervise 
productivity or business processes, or identify the ·•individual clients" he would negotiate with in a 
retail setting. Although these responsibilities are intended to establish the Beneficiary's managerial 
or executive capacity and his senior position in the company, the duty description is far too broad to 
provide any meaningful insight into what the Beneficiary would actually do on a daily basis. 
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. The 
Petitioner has not provided any detail or explanation of the Beneficiary's activities in the course of 
his daily routine. 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). 
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 I 0 I (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, a 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.'' Jd. 
Whether the broad duties attributed to the Beneficiary qualify as managerial or executive in nature 
depends in large part on whether the Petitioner established that he would have sufficient subordinate 
statT to supervise and perform the day-to-day company activities he is claimed to manage or direct. 
As discussed further below. the Petitioner has not shown its ability to relieve the Beneficiary from 
significant involvement in the operational tasks required to operate its business. 
The fact that the Beneficiary will manage or direct a business as its senior employee does not 
necessarily establish eligibility for classification as a multinational manager or executive. By 
statute, eligibility for this classification requires that the duties of a position be ··primarily" executive 
in nature. Section I 0 I (A)( 44)(B) of the Act. Even though the Beneficiary may exercise discretion 
over the Petitioner's operations and possess authority with respect to discretionary decision-making. 
the position description alone is insufficient to establish his employment will be in a managerial or 
executive capacity. 
B. Staffing and Organizational Structure 
The Director determined that the Petitioner did not demonstrate that it had sutTicient staffing to 
relieve the Beneficiary from involvement in the day-to-day operations of the business. 
4 
.
Maller o(G&DW-, Inc. 
The Petitioner stated on the Form I-140 that it had eight employees when the petition was tiled in 
February 2010, but later explained that it actually had seven employees.
1 
The Petitioner did not 
submit an organizational chart at the time of filing but has now provided a chart reflecting its 2010 
staffing in response to our RFE. 
The chart shows the following structure: 
President 
General Manager Administration 
I \ 
Store Manager Store Manager 
I 
Sales Representative Sales Representative 
The Petitioner states that the general manager: supervised the day-to-day operations of the company: 
implemented operational policies and procedures; established procedures and supervised 
administrative operations for both stores; oversaw contractual negotiations with manufacturers; 
assisted the Beneficiary with setting policies and objectives: and supervised subordinate employees. 
The administrative manager or "'administration" employee was responsible for: preparing 
operational 
reports and schedules; planning and coordinating administrative procedures and systems; 
monitoring office supply inventory; maintaining databases; monitoring costs and expenses; and 
assessing staff performance. 
With respect to the store employees, the Petitioner states that the sales representatives are 
responsible for day-to-day sales while the store managers established retail store policies, goals and 
objectives, performed personnel functions, planned and directed sales promotions, maintained 
inventory and store conditions, and dealt with all issues arising from stafT or customers. 
The statutory definition of "managerial capacity" allows for both "personnel managers .. and 
"function managers." See section 10l(a)(44)(A)(i) and (ii) 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 
professiona1.'' 2 Section 10l(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
1 
The Petitioner's state tax filings show that the company employed eight workers in January 20 I 0. 
2 In evaluating whether a 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. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession'' to mean "any occupation tor which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation''). Section I 0 I (a)(32) of the Act. 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." 
.
Matter ofG&DW-. Inc. 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. Section 101 (a)( 44)(A)(iii) of the Act. 
In response to our RFE, the Petitioner stated "[i]n February of 2010, the Beneficiary was the only 
professional employee at [the Petitioner]" and therefore does not claim that the Beneficiary qualifies 
as a personnel manager based on his supervision of professional personnel. 
The Petitioner's organizational chart depicts a multi-tier structure, with three levels of supervision 
above the part-time sales representatives. However, in order to establish that the Beneficiary 
supervises subordinate managers or professionals, the Petitioner's evidence must substantiate that 
the duties of the Beneficiary and his subordinates correspond to their placement in the organization's 
structural hierarchy. Managerial job titles assigned to subordinates are not probative and will not 
establish that the organization was sufficiently complex to support an executive or managerial 
position. 
The Petitioner indicates that its store was open from 9:30 a.m. to 6:00 p.m. daily 
and its 
store was open from 9:30 a.m. to 6:00 p.m. daily . Based on their wages in the first 
quarter of 2010, the store manager and sales representative worked no more than 28 to 
30 hours per week, even assuming that both employees were paid minimum wage. Other employees 
earned wages commensurate with full-time employment, with the exception of the store's 
sales representative who earned only $512 in the first quarter of 20 l 0. 
The position description for the general manager substantially overlaps with the Beneficiary's own 
description and the Petitioner did not explain 
why it needed two senior employees to perform nearly 
identical duties. In addition , the Petitioner has claimed that a total of four of its seven employees 
have responsibility for developing and implementing company polici'es and procedures, while two 
part-time staff were responsible for actually providing the sales and services of a company whose 
stores are open for business for 136.5 hours per week. Based on the totality of the evidence 
submitted regarding the company's structure, it is more likely than not that the store managers were 
actually responsible for selling the Petitioner's products, as the company did not have sufficient sales 
statl to perform this essential operational duty. In fact, the store, with a sales employee who 
worked extremely limited hours , could not have reasonably remained open for 77 hours per week 
without additional assistance from either the general manager or the Beneficiary. 
Therefore, the evidence does not support a conclusion that the Beneficiary"s subordinates are 
supervisors, managers
, or professionals. Instead, the Beneficiary's subordinates more likely than not 
perform the actual routine, operational tasks of the company. The Petitioner has not provided 
evidence of an organizational structure sufficient to support the Beneficiary in an executive position 
or established that he would act primarily as a personnel manager. 
Section IOI(a)(44)(C) of the Act requires that USCIS must take into account the reasonable needs of 
the organization in light of the overall purpose and stage of development of the organization if 
staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity. However, it is appropriate for USCIS to consider the size of the petitioning 
Ma/fer of'G&DW-. Inc. 
company in conjunction with other relevant factors, such as the absence of employees who would 
perform the non-managerial or non-executive operations of the company. Family Inc. v. USCIS. 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d 7. 15 (D.D.C. 2001). 
Here, the Petitioner submitted job descriptions for the Beneficiary and for the claimed subordinate 
managers employees that are incongruous with the nature and size of the organization, as it has not 
shown that it had sufficient lower-level staff in place to actually provide the company's products and 
services. The lack of lower-level staff casts doubt on the accuracy and completeness of the job 
descriptions provided for the Beneficiary and his direct subordinate. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufficiently relieved from involvement in the day-to-day operations of the company, despite his 
senior position in the company hierarchy. Accordingly, the Petitioner has not met its burden to 
show that his duties would be primarily managerial or executive in nature as of the date of filing. 
III. CONCLUSION 
The appeal must be dismissed as the Petitioner has not demonstrated that it would employ the 
Beneficiary in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter olG&DW-. Inc .. ID# 584261 (AAO Jan. 24, 20 18)