dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-A-E-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 8, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a convenience store and gas station, seeks to permanently employ the Beneficiary as 
its chief executive officer (CEO) and president 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. § l 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 an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
On appeal, the Petitioner submits additional information and asserts that the Director did not 
sufficiently consider the company's nature and needs. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 )(1 )(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 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(i)(3). 
Matter of G-A-E-, Inc. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it would employ the Beneficiary in a 
managerial or executive capacity. The Petitioner does not claim that it seeks to employ the Beneficiary 
in a managerial capacity. Therefore, we restrict our analysis to whether the Petitioner would employ 
the Beneficiary in an executive 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 directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
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). Second, the petitioner must 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. 
When examining the claimed executive capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. 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 in a managerial or 
executive capacity. See 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 that 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 and its staffing levels. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
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. 
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. 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 a beneficiary 
to direct and 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 
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Matter of G-A-E-, Inc. 
an 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." Section 10l(a)(44)(B) of the 
Act. 
The Beneficiary described his claimed executive role with the petitioning entity: 
I direct the management at [the petitioning company]. I spend approximately 50% of 
my time purchasing inventory from vendors. I compare our inventory to determine the 
products that are selling versus the products that are not selling in order to increase 
revenue. Another 50% of my time is spent on banking activities for the company. I 
deposit money into the company account, as well as write checks to both the vendors 
and employees. . . . I do not perform day-to-day functions ... , which include taking 
daily inventory and managing the cash register. 
I establish goals and policies for [the Petitioner]. Each month, I compare the inventory 
to meet our financial goals. As CEO, I have set a goal of 5% increase in profit each 
month. To achieve this goal, I look into different food products and promotional 
products each month after analyzing our profits. As CEO, I have wide latitude in 
deciding both the food products and promotional products that [the Petitioner] will 
carry. 
I do not receive any supervision from high level executives. . . . [T]here is no individual 
in a higher position. 
In the above statement, the Beneficiary claimed to set the Petitioner's goals and policies, but he also 
claimed to spend half of his time "purchasing inventory," and the other half performing "banking 
activities," neither of which are intrinsically executive activities. 
The Petitioner claimed six U.S. employees at the time of filing. Other than the Beneficiary, each of 
those employees earns minimum wage. Each subordinate signed a brief description of their position 
at the company: 
Assistant Manager, Grocery and Non-Grocery- each 40 hours per week 
I deal solely with the non-grocery items. Each day, I stock the non-grocery items and 
take inventory. At the end of each week I give the CEO ... a complete stock list of 
non-grocery items and an inventory list. 1 
Cashiers, Day Shift and Night Shift - each 40 hours per week 
I balance the cash register, run the sales report for the day, and count out the money in 
the cash drawer. If the store has checks or credit card receipts, I add these into the daily 
total. I bring these reports to the CEO. 
1 The two assistant managers signed identical statements, each containing the phrase "non-grocery items." 
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Matter of G-A-E-, Inc. 
Salesman/Groundskeeper - 30 hours per week 
I manage the register, deal with any day-to-day customer service requests at the store. 
In addition, I take care of the cleaning, plumbing, electrical, and any other 
miscellaneous upkeep at the store on a daily basis. 
The Petitioner listed each employee's usual work schedule, shown below in table form: 
6 7 8 9 10 11 12 1 2 3 4 5 6 7 8 9 10 
CEO/President 
Weekda s 
Weekends 
Assistant Mana 
Weekdays 
Weekends 
Assistant Mana 
Weekdays 
Weekends 
Day Shift Cashier 
Weekda s 
Weekends 
Night Shift Cashier 
Weekda s 
Weekends 
Sales/Groundskeeper 
Weekdays 
Weekends 
The Petitioner claimed that the Beneficiary directs the management of the company, but the above 
information does not indicate that there is any management for the Beneficiary to direct. The two 
individuals identified as assistant managers have non-managerial tasks such as stocking shelves and 
taking inventory. Furthermore, according to the above schedule, the assistant manager for non-grocery 
items is the only employee present from 6:00 to 9:00 every morning, and no cashiers work before 
noon. Therefore, the two assistant managers are the only employees available to serve customers as 
cashiers in the morning. 
The Director denied the petition, stating that, although the Beneficiary is the company's highest­
ranking official, the Petitioner did not show "that he performs primarily managerial or executive 
duties." The Director found the job description to be broad and vague, combining qualifying and non­
qualifying tasks. The Director also found that the Petitioner did not show that its subordinate 
employees relieve the Beneficiary from having to perform primarily non-qualifying tasks. 
On appeal, the Petitioner states: "While it may appear that Beneficiary is not primarily performing 
executive tasks, a consideration of the nature of the business would prove otherwise. . . . A 
convenience store's day-to-day operations are drastically different from the tasks the Beneficiary is 
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Matter of G-A-E-, Inc. 
completing." The Petitioner also submits new job descriptions for the Beneficiary and his subordinate 
employees, and a schedule of "Hour-by-Hour Store Operations." 
The new information adds some detail to the record, but does not establish eligibility. The new list of 
the Beneficiary's duties contradicts, rather than expands upon, the earlier job description. The 
Beneficiary previously stated that he spent half his time purchasing inventory and the other half on 
banking functions, but most of the 21 items on the new list concern neither inventory nor banking. 
The Petitioner does not explain how many of the newly claimed responsibilities relate to an executive 
capacity. The Petitioner is correct that we must take into account the nature of the business, but we 
cannot disregard the statutory definition of "executive capacity." The Petitioner asks us to keep in 
mind that it is "a small convenience store," but it does not follow that a small convenience store 
requires executive-level leadership. 
The new list of duties includes several non-qualifying activities, such as marketing and bookkeeping. 
Other duties are too vaguely worded to allow a firm conclusion, such as "[ e ]ncourage good employee 
behavior" and "[m]anage all controllable costs." The Petitioner does not explain how these activities 
constitute directing the management of the company. 
The expanded duties of the subordinate employees indicate that all of those subordinates engage in 
front-line operational duties such as customer service, inventory, and counting cash. The hour-by­
hour breakdown confirms that the assistant managers act as cashiers in the morning. The Petitioner 
asserts that the two assistant managers "[ v ]erify cash at end/beginning of subordinate' s shift," but 
neither assistant manager is present when the cashiers' shifts end. The non-grocery assistant 
manager's own shift does not overlap with that of either cashier at all. Furthermore, it is not evident 
that the assistant managers have managerial or supervisory authority over the other employees. 
The Beneficiary appears to be, at most, a first-line supervisor of the store's other employees. The 
Petitioner states that the Beneficiary does not run the cash register or take inventory, but this does not 
make him an executive. Rather, the Beneficiary's duties are largely administrative, including tasks 
(described above) that an executive would ordinarily delegate to lower-level employees. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as an intracompany transferee in an executive capacity within the meaning of section 
101 (a)( 44) of the Act. By statute, eligibility for this classification requires that the duties of a position 
be "primarily" of an executive nature. Sections 101 (A)( 44)(B) of the Act. While the Beneficiary may 
exercise discretion over the Petitioner's day-to-day operations and possesses the requisite level of 
authority with respect to discretionary decision-making, the record does not establish that his actual 
duties, as of the date of filing, would be primarily executive in nature. 
We also consider the proposed position in light of the nature of the petitioner's business, its 
organizational structure, and the availability of staff to carry out the petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a petitioner has, we "may properly consider an organization's small size as one factor in 
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Matter of G-A-E-, Inc. 
assessing whether its operations are substantial enough to support a manager." 2 Furthermore, it is 
appropriate for us to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the 
non-managerial or non-executive operations of the company, or a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it would employ the Beneficiary in an executive capacity in the United States. 
III. QUALIFYING EXPERIENCE ABROAD 
Where, as here, the beneficiary is already in the United States working for the foreign employer or its 
subsidiary or affiliate, then the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) requires the petitioner to 
demonstrate that, in the three years preceding entry as a nonimmigrant, the Beneficiary was employed 
by the entity abroad for at least one year in a managerial or executive capacity. 
The Beneficiary entered the United States on July 27, 2008 and has not departed since then. The 
Petitioner stated that it "must submit evidence of the Beneficiary's employment for at least one year 
between July 25, 2005 and July 27, 2008," and that "the Beneficiary was employed as an executive 
within the foreign company throughout 2007." The Petitioner submitted photocopied payroll receipts, 
the most recent of which concerned the Beneficiary's salary for November 2007. 
The Beneficiary's July 2008 entry, however, did not permanently establish his 2005-2007 employment 
as a qualifying factor for as long as he remains in the United States, regardless oflater circumstances. 
Section 203(b )(1 )(C) of the Act indicates that a two-year break in qualifying employment is inherently 
disqualifying, and the statute does not establish a separate, more lenient standard for beneficiaries who 
are already present in the United States when the petition is filed. 
The Beneficiary did not enter the United States on an employment-based visa to work for the Petitioner 
or any related entity. Rather, he entered as a B-1/B-2 nonimmigrant visitor, a classification that does 
not authorize employment. The Petitioner filed its first petition on the Beneficiary's behalf on May 
19, 2010, almost two and a half years after his last documented paycheck from his foreign employer. 
By the time that petition was approved on April 27, 2011, the Beneficiary had been in the United 
States for two years and nine months, and almost three and a half years had passed since his most 
recent salary payment. 
The long interruption in the Beneficiary's employment disqualifies the Beneficiary from classification 
as an immigrant manager or executive (and from classification as an L-lA or L-lB nonimmigrant) 
until he leaves the United States and accrues at least one year of qualifying experience outside the 
United States. See Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018). Given the 
2 Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
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Matter of G-A-E-, Inc. 
fact pattern described above, the initial L-1 A petition filed on the Beneficiary's behalf in 2010 appears 
to have been approved in error. 
The substantial and undisputed interruption in the Beneficiary's qualifying employment is, by itself, 
sufficient grounds for denial of the petition and dismissal of the appeal. 
IV. CONCLUSION 
The appeal will be dismissed 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 appeal is dismissed. 
Cite as Matter ofG-A-E-, Inc., ID# 5199020 (AAO Aug. 8, 2019) 
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