dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 18, 2023 In Re: 28185172 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a cellular phone retailer, seeks to permanently employ the Beneficiary as its controller 
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 a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner will employ the Beneficiary in the United States in an executive capacity, 
and that the Beneficiary has been employed abroad in a managerial or executive capacity. 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 nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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 Fann 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 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). 
II. ANALYSIS 
The Director determined that the Petitioner did not establish that the Beneficiary has been employed 
abroad, and will be employed in the United States, in an executive capacity. The Director did not 
discuss the separate requirements for 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 
discretiomuy decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101(a)(44)(B) of the Act. 
If a petitioner establishes that the offered position meets all four elements set forth in the statutory 
definition, the petitioner must then prove that the beneficiary will be primarily engaged in executive 
duties, as opposed to ordinaty operational activities alongside the petitioner's other employees. See 
Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether the beneficiary's 
duties will be primarily executive, we consider the description of the job duties, 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 understanding the beneficiary's actual duties and role in 
the business. 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
Accordingly, we consider evidence regarding the Beneficiary's job duties along with evidence of the 
nature of the Petitioner's business and its staffing levels. 
The Director determined that the Petitioner had not shown "that the beneficiary directs the 
management of the organization or a major component or function of the organization." We agree, 
for the reasons explained below. 
The Petitioner submitted a job description indicating that the Controller is "[ d]irectly responsible for 
the leadership financial management [sic] of the operations of the business" and "[ d]eveloping and 
implementing sales strategies." The job description listed such responsibilities as "[ c ]oordinating the 
entire operation of the management staff' and "[r]ecruiting, training and motivating management 
staff." One listed responsibility refers to "[s]taying updated on all trends in the leather industry," 
although the Petitioner sells cell phones rather than leather goods. This reference to an unrelated 
industry raises questions about the origin and accuracy of the unsigned job description. 
The Petitioner also submitted a list of "Executive Decisions made by the Controller," which indicates 
that "[t]he Controller has established the policy and procedures manual for the company as well as the 
required training program for all Managers." 
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An accompanying organizational chart, reproduced below, indicates that the staff accountant would 
be the Beneficiary's only subordinate. The other employees would report to the president, either 
directly or, in the case of the retail staff, through the store manager. 
Staff Accountant 
Controller IT Programmer 
President 
Store Manager Retail Clerks (3) 
The Director denied the petition, stating: "the organization does not have the complexity to support 
an executive staff. Moreover , there is insufficient staff to relieve the beneficiary from any non­
executive or non-managerial duties." 
On appeal, the Petitioner submits an entirely different organizational chart: 
President 
Controll er 
Location 
3 Mobile 
Experts 
2 Mobile 
Experts 
The revised chart places more employees under the Beneficiary's authority, but does not show a staff 
accountant or IT programmer as shown earlier. The Petitioner submits new job descriptions , in which 
the duties formerly assigned to the staff accountant now belong to the store managers . The duties 
previously assigned to the IT programmer are absent from the new job descriptions. 
In its appellate brief, the Petitioner does not explain or acknowledge the substantial differences 
between the two organizational charts and sets of job descriptions. A petitioner must meet all 
eligibility requirements at the time of filing. See 8 C.F.R. § 103.2(b)(l) . A petitioner may not make 
material changes to a petition that has already been filed in an effort to make an apparently deficient 
petition conform to USCIS requirements . See Matter of Izummi, 22 I&N Dec. 169, 175 (Cornrn'r 
1998). Therefore, the significant , unexplained revision of the company 's organizational structure does 
not overcome the stated grounds for denial. 
The Petitioner states that the Director "failed to acknowledge that the beneficiary has the authority to 
hire, promote or dismiss any subordinate employee. The beneficiary is a signatory on the business 
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checking account, and he reports directly to the President of the company." The Director did not 
dispute that the Beneficiary would have some degree of discretionary authority over the company. 
The denial focused on a particular element of the statutory definition of "executive capacity" at section 
101(a)(44)(B)(i) of the Act, requiring that an executive "primarily ... directs the management of the 
organization or a major component or function of the organization." This requirement is integral to 
the definition of an executive capacity, and the Petitioner must satisfy that requirement in order for 
the petition to be approved. 
An executive directs the management of the organization, major component, or essential function of 
a given organization by controlling the work of managerial or lower-level executive employees. See 
BlueStar Cabinets, Inc. v. Jaddou, No. 21-10116, 2022 WL 4364734, at *7 (5th Cir. Sept. 21, 2022) 
(holding that "' [ d]irect[ing] the management of the organization' necessarily includes directing 
managers of the organization.") See generally, also, 2 USCIS Policy Manual L.6(D), 
https://www.uscis.gov/policy-manual. 1 
The Petitioner has asserted that its entire staff consists of managers and executives, but the record does 
not support this claim. Job descriptions in the record refer to all the lower-level employees as 
"managers," but the conesponding duties are operational or supervis01y rather than managerial. For 
example, the staff accountant "[m]aintain[s] and update[s] accounting records," and the IT 
programmer "[ d]esign[ s] desktop applications." The store manager's first-line supervision of retail 
staff is not a managerial capacity under the statutory definition at section 101(a)(44)(A) of the Act. 
The Petitioner has not established that the Beneficiary's authority over a staff accountant, as originally 
claimed, or a small number of retail staffers, as claimed on appeal, amounts to directing the 
management of the company or of a component or function thereof 
The Petitioner states: 
[ A ]ny successful business must prepare financial reports [ and related documents]. ... 
The Beneficiary will also be responsible for working with external auditors for the 
preparation of the year-end financial statements and the filing of the Corporate Income 
taxes each year. These responsibilities are far beyond the duties of a manager or 
supervisor and requires [sic] an executive for an approval and or a signature 
requirements [sic]." 
The Petitioner cites no source or authority to support the contention that "any ... business," regardless 
of its size or structure, requires executive-level authority for financial matters. 
The Petitioner asserts: 
USCIS relies on the Department of Labor to determine the Employment based 
preference when an employer files a Labor Certification for a potential employee. To 
meet the EB2 preference the employer must require 5 years experience and a minimum 
of a Bachelor Degree to serve in an Executive or Manager role. There is no mention 
of the number of subordinate employees required for a Professional Occupation such 
1 The cited section of the USCIS Policy Manual pertains to nonimmigrant petitions, but the underlying definition of 
"executive capacity" at section 10l(a)(44)(B) of the Act is the same for immigrant and nonimmigrant petitions. 
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as a Financial Manager or Executive to supervise so they can maintain their role as a 
Financial Manager or Executive. 
The above passage is not relevant to this petition. It describes the requirements for classification as a 
member of the professions holding an advanced degree under section 203(b )(2)(A) of the Act. The 
Petitioner seeks a different classification for the Beneficiary under section 203(b )(1 )(C) of the Act. 
With respect to the size of the company, section 101(a)(44)(C) of the Act pennits "staffing levels [to 
be] used as a factor in determining whether an individual is acting in a managerial or executive 
capacity," so long as we "take into account the reasonable needs of the organization, component, or 
function in light of the overall purpose and stage of development of the organization, component, or 
function." In this instance, the Petitioner has not established that the company, at the time it filed the 
petition, had a sufficiently complex organizational structure to have a reasonable need for an executive 
position in which the Beneficiary would direct the management of all or paii of the organization. 
The Petitioner has submitted inconsistent and inadequately-supported assertions regarding the 
Beneficiary's intended duties and authority. We agree with the Director that the Petitioner has not 
met its burden of proof to show that it seeks to employ the Beneficiary in an executive capacity. 
The Director also concluded that the Petitioner had not shown that the Beneficiary was employed 
abroad in an executive capacity. The Petitioner claims that the Beneficiary served as general 
operations manager of a computer service company in Uganda starting in January 2018. On appeal, 
the Petitioner states that the Director erred by considering the Beneficiary's position abroad under the 
requirements of an executive capacity rather than those of a managerial capacity. The Petitioner 
asserts that the Beneficiary worked as a manager abroad, and correctly observes that it never described 
the Beneficiary's employment abroad as being executive rather than managerial. 
While the Director erred by considering the Beneficiary's claimed employment abroad under the 
criteria for an executive capacity rather than a managerial capacity, this error did not affect the 
outcome of the proceeding. The above discussion of the Beneficiary's intended employment in the 
United States is sufficient to warrant denial of the petition and dismissal of the appeal. 
Fmihermore, review of the record shows another issue relating to the Beneficiary's claimed 
employment abroad. By statute, the Beneficiary must have been employed abroad in a qualifying 
capacity for at least one year during the three years preceding the filing of the petition. See section 
203(b )(1 )(C). The regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) accounts for beneficiaries who are 
"already in the United States working for the same [or related] employer" when the petition is filed. 
In this instance, however, the record does not show that the Beneficiary was working for the Petitioner 
at the time of filing. 
A break in qualifying employment longer than two years will interrupt a beneficiary's continuity of 
employment with the petitioner's multinational organization. Such breaks may include, but are not 
limited to, intervening employment with a nonqualifying U.S. employer or periods of stay in a 
nonimmigrant status without work authorization. Matter of S-P-, Inc., Adopted Decision 2018-01 4 
(AAO Mar. 19, 2018). A beneficiary who worked as a manager or executive for a qualifying 
multinational organization for at least one year, but who then left the organization for a period of more 
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than two years, is ineligible for this immigrant visa classification. To cure the interruption in 
employment, such a beneficiary would need an additional year of qualifying employment abroad 
before he or she could once again qualify. Id. 
The record establishes a disqualifying interruption in the Beneficiary's employment abroad. The 
Beneficiaiy entered the United States in May 2019 as a B-2 nonimmigrant visitor, changing status in 
November 2020 to an F-2 spouse of an F-1 nonimmigrant student. Neither of those nonimmigrant 
classifications allows employment in the United States. See 8 C.F.R. §§ 214.l(e) and 214.2(t)(15)(i). 
The Petitioner filed a nonimmigrant petition in 2021 seeking to classify the Beneficiary as an L-lA 
intracompany transferee, but that petition was not approved, and therefore the Beneficiary never held 
L-lA nonimmigrant status. 
Therefore, when the Petitioner filed the immigrant petition in July 2022, the Beneficiary had been in 
the United States for more than three years. During that time, he was neither perfmming qualifying 
duties outside the United States nor authorized to work for the Petitioner in the United States. This 
three-year interruption in employment means that the Beneficiary cannot satisfy the statutory 
requirement of at least one year of employment abroad during the three years preceding the filing of 
the petition. The Beneficiary will not be eligible for classification as a multinational manager or 
executive until after he leaves the United States and works as a manager or executive for a qualifying 
employer for at least a year. 
III. ADDITIONAL ISSUE 
Beyond the Director's decision, our review of the file reveals another apparently disqualifying issue, 
concerning the relationship between the Petitioner and the Beneficiary's employer in Uganda. 
A petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are 
the same employer or related as a "parent and subsidiary" or as "affiliates." See generally 
section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
The Petitioner claimed that both it and the foreign entity are owned b .___________ ___, 
The Petitioner submitted a copy of a board resolution listing the "allotment of shares" in the foreign 
entity, but the document is only partly legible, and therefore it does not reliably identify the 
shareholders. 
The Petitioner's certificate of formation, filed with the State of Texas in March 2021, names one 
director of the company I I and authorizes the issuance of I 000 shares. The Petitioner has not 
documented the issuance and allotment of shares with copies of share certificates, a share ledger, or 
other comparable evidence. 
An August 2021 partnership agreement betwee ~-------------~indicates that
I leach contributed $20,000 in capital to the petitioning company. The 
agrJement does not reveal the ammrt, if any, ofl lcapital contribution, and it does not indicate 
that.____________ _. received any shares in exchange for their capital contribution. 
Furthermore, the record does not fully explain the purpose or effect of the partnership agreement. The 
Petitioner is not a partnership. Rather, it is a corporation that already existed before August 2021. 
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I 
The Petitioner's 2021 income tax return indicates, in two places, tha~ Iowns 95% of the 
company's shares, whiltj lowns the remaining 5%. This information contradicts that claim that 
lown the petitioning U.S. company. The Petitioner must resolve this 
discrepancy in the record with independent, objective evidence pointing to where the truth lies. Matter 
ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Here, the Petitioner has not resolved or even addressed 
the contradictory claims regarding the company's ownership. 
Because the ownership evidence is incomplete and inconsistent, the Petitioner has not met its burden 
of proof to establish that it has the required qualifying relationship with the Beneficiaiy's foreign 
employer. 
IV. CONCLUSION 
We will dismiss the appeal because the Petitioner has not established that it will employ the 
Beneficiary in an executive capacity. Also, the record shows a disqualifying interruption in the 
Beneficiary's employment, and the Petitioner has not established a qualifying relationship with the 
Beneficiary's employer abroad. 
ORDER: The appeal is dismissed. 
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