dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re: 17632855 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 21, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as an owner and operator of a retail dollar store, seeks to employ the 
Beneficiary as its general manager 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. 
§ 1153(b )(1 )(C). 
The Director of the Texas Service Center denied the petition on multiple grounds, concluding the 
Petitioner did not establish that: 1) there is a qualifying relationship between it and the Beneficiary's 
former foreign employer, 2) the Beneficiary would be employed in a managerial or executive capacity 
in the United States; 3) the Beneficiary was employed abroad in a managerial or executive capacity 
for at least one year in the three years preceding the date the petition was filed, and 4) it had the ability 
to pay the Beneficiary's proffered wage . 
On appeal, the Petitioner asserts that it submitted sufficient evidence to establish the foreign 
employer's ownership, and in tum, that it and the foreign employer are owned and controlled by the 
same individual. Further , the Petitioner contends it provided a support letter sufficiently 
demonstrating that the Beneficiary would be employed in an executive capacity in the United States. 
The Petitioner also states that a submitted 2018 IRS Form, U.S . Corporation Income Tax Return, 
demonstrates that it paid its corporate officers, thereby establishing its ability to pay the Beneficiary's 
proffered wage. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. The 
Petitioner did not sufficiently establish that the Beneficiary was employed abroad in a managerial or 
executive capacity for at least one year in the three preceding the date the petition was filed . Since 
this identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve its appellate arguments with respect to the Director's other ground for denial. See INS v. 
Bagamasbad , 429 U.S . 24, 25 (1976) ("courts and agencies are not required to make findings on issues 
the decision of which is unnecessary to the results they reach") ; see also Matter of L-A-C-, 26 l&N 
Dec . 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
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)(l)(C) of the Act. 
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 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. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY FOR AT 
LEAST ONE YEAR 
The sole issue we will discuss is whether the Petitioner established that the Beneficiary was employed 
abroad in a managerial or executive capacity for at least one year in the three preceding the date the 
petition was filed or his entry into the United States as a nonimmigrant working for an affiliate or 
subsidiary of his foreign employer. 
The regulation at 8 C.F.R. § 204.5(j)(3)(i) states that the Petitioner must demonstrate that: 
(A) If the alien is outside the United States, in the three years immediately preceding 
the filing of the petition the alien has been employed outside the United States for at 
least one year in a managerial or executive capacity by a firm or corporation, or other 
legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal 
entity; or 
(B) If the alien is already in the United States working for the same employer or 
a subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial 
or executive capacity[ ... ] 
In denying the petition, the Director pointed to the Form I-129, Petition for a Nonimmigrant Worker, 
indicating that the Beneficiary had arrived in the United States on a B-2 nonimmigrant visitor's visa on 
July 26, 2016. The Form I-129 also reflected that the Beneficiary had not departed the United States as 
of the date the petition was filed on May 13, 2019. Further, the Director emphasized that the Petitioner 
stated that the Beneficiary began his employment with the foreign employer in December 2015. Based 
on this evidence, the Director concluded that the Beneficiary did not complete at least one year of 
qualifying employment abroad, since his foreign employment dated from December 2015 to his entry 
into the United States in July 2016, or a period of approximately seven months. 
2 
On appeal, the Petitioner does not contest this determination on the part of the Director or articulate how 
it was inconsistent with applicable law or policy, it only states that "[the Beneficiary] served as the Sales 
& Marketing Director for the foreign business since 2015." Therefore, we will consider this issue 
abandoned and we concur with the Director's conclusion as to this issue. See Sepulveda v. US. Att'y 
Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); see also, Hristov v. Roark, No. 09-CV-27312011, 
2011 WL 4711885 at *l, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be 
abandoned as he failed to raise them on appeal to the AAO). 
There is no indication that the Beneficiary was employed abroad for at least one year in the three years 
preceding the date the petition was filed, or from May 13, 2016 through May 13, 2019. As noted, the 
Petitioner stated that the Beneficiary entered the United States on a B-2 nonimmigrant visa on July 26, 
2016 and further that he had not departed as of the date the petition was filed. The Petitioner also 
provided foreign payroll and other documentation suggesting that he maintained this employment as an 
"agent" of the foreign employer while in the United States. However, the applicable regulations are 
clear, the Petitioner must demonstrate that the Beneficiary was employed "outside the United States" for 
at least one year or "overseas [ emphasis added] ... for at least one year" in the three years preceding the 
date the petition was filed or his entry as a nonimmigrant to work for a subsidiary or affiliate of the 
foreign employer (in this case the Petitioner). See 8 C.F.R. § 204.5(i)(3)(i)(A) and (B). As such, time 
the Beneficiary spent in the United States, even if performing duties for the foreign employer, does not 
count towards the minimally required one year of foreign employment overseas during the applicable 
three-year qualifying period. Since the Beneficiary only spent approximately three months abroad in 
the three years preceding the date the petition was filed, it cannot be established that he was employed 
abroad for at least one year during this time-period. 
In addition, as discussed by the Director and reiterated by the Petitioner on appeal, the Beneficiary was 
employed abroad by the foreign employer from December 2015 to his entry into the United States in 
July 2016, or for only about seven months. In addition, the Beneficiary's presence in the United States 
after July 26, 2016, cannot be considered working for the same employer or a subsidiary or affiliate of 
the foreign employer. The Petitioner states, and our records reflect, that the Beneficiary entered the 
United States on a B-2 nonimmigrant visitor's visa for the purposes of tourism, not an employment­
based immigration visa. Therefore, the Petitioner was required to demonstrate the Beneficiary's 
foreign employment for one year in the three years prior to the date the petition was filed. As we have 
discussed above, the Petitioner did not demonstrate this minimally required time of foreign 
employment. Therefore, for this reason, the appeal must be dismissed. 
The Director also determined that the Beneficiary's foreign employment was not established as being 
in a managerial or executive capacity. In making this determination, the Director pointed to the foreign 
employer's asserted organizational chart reflecting that the Beneficiary did not have any subordinates 
abroad. The Director also determined that the Petitioner did not submit a sufficient duty description 
or other evidence to substantiate this claimed foreign employment in a managerial or executive 
capacity. We agree with the Director's determination as to this issue. Since this determination is not 
specifically contested by the Petitioner on appeal, we will likewise be considered it abandoned. 
"Managerial capacity" means 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 
3 
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 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
"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. 
When examining the managerial or 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 clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are in a 
managerial or executive capacity. 8 C.F.R. § 204.5(j)(5). 
To be eligible as a multinational executive or manager, the Petitioner must show that the Beneficiary 
will perform the high-level responsibilities set forth in the statutory definition at section 
10l(a)(44)(A)(i)-(iv) and (B)(i)-(iv) of the Act. If the record does not establish that the offered 
position meets all four of these elements, we cannot conclude that it is a qualifying managerial or 
executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial or 
executive-level 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). In determining whether 
a given beneficiary's duties will be primarily managerial or executive, we consider the Petitioner's 
description of the job duties, the company's organizational structure, the duties of a 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 a beneficiary's actual duties and role in a business. 
As stated by the Director, the Petitioner submitted different position titles for the Beneficiary in his 
former role abroad, including "sales executive" in his resume, "marketing executive" in the foreign 
employer organizational charts, and "sales and marketing manager" in a support letter provided in 
response to the Director's request for evidence (RFE). This inconsistency left initial uncertainty as to 
the actual nature of the Beneficiary's position abroad. The Petitioner also did not submit a clear 
explanation of the Beneficiary's duties and daily tasks along with the percentage of time he devoted to 
his different duties, as requested by the Director in the RFE. The Petitioner only provided a brief foreign 
duty description within the Beneficiary's resume including several non-qualifying operational duties 
directly related to its provision of goods and services, such as him "secur[ing] visible display space for 
[foreign employer] products," "ensur[ing] delivery is on time and reduce [sic] out of stock situation," 
and "service[ing] the customer in a timely manner on queries related to products, expiry returns, 
invoices, [ and] payments." 
4 
Whether the Beneficiary is a managerial or executive employee abroad turns on whether the Petitioner 
has sustained its burden of proving that their duties were "primarily" managerial or executive. See 
sections 101(a)(44)(A) and (B) of the Act. Here, the Petitioner does not document what proportion of 
the Beneficiary's foreign duties were managerial or executive functions and what proportion were 
non-qualifying. The Petitioner lists the Beneficiary's duties as including administrative or operational 
tasks but does not quantify the time he spent on these duties. For this reason, we cannot determine 
whether the Beneficiary was primarily performing the duties of a manager or an executive abroad. See 
IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). In addition, the Petitioner 
provided foreign employer organizational charts showing that the Beneficiary had no subordinates while 
employed abroad. As such, it is not clear who would primarily relieve the Beneficiary from performing 
the non-qualifying tasks reflected in his foreign duty description. Therefore, we agree with the Director's 
conclusion that the Petitioner did not establish that the Beneficiary was employed abroad in a managerial 
or executive capacity. 
Therefore, for the foregoing reasons, we will dismiss the appeal as the Petitioner has not sufficiently 
established that the Beneficiary was employed abroad in a managerial or executive capacity for at least 
one year in the three preceding the date the petition was filed. 
ORDER: The appeal is dismissed. 
5