dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re : 18407310 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 17, 2021 
Form 1-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner, which states that it operates convenience stores, gas stations, and tobacco shops, seeks 
to permanently employ the Beneficiary as its president and chief executive officer at a salary of 
$36,000 per year under the first preference immigrant classification for multinational managers or 
executives. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ 1153(b)(l)(C) . 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity; and (2) the Petitioner has been doing business for at least one year 
prior to the petition's filing date. 
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. 
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 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(j)(3). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director concluded that the Petitioner did not establish that it seeks to employ the Beneficiary in 
the United States in a managerial or executive capacity. (The Petitioner describes the position as both 
managerial and executive.) As explained below, we agree with the Director's conclusions. 
"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 
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. 
To establish that a beneficiary is eligible for immigrant classification as a multinational manager or 
executive, a petitioner must show that the beneficiary will perform all of the high-level responsibilities 
set forth in the statutory definitions at section 10l(a)(44)(A) or (B) of the Act. If a petitioner 
establishes that the offered position meets all the elements set forth in the statutory definition, the 
petitioner must then 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). In determining whether the beneficiary's 
duties will be primarily managerial or 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. 
Before we discuss specific claims about the Beneficiary's role at the petitioning company, we note 
significant discrepancies in the record_g·oner claims four locations in Texas (specifically in 
I ll ~!===1 and . The Petitioner submits copies oflease documents 
for two of these sites, i~ and that were current as of the August 2011 filing date. 
The Petitioner did not submit lease documjtation for the I I and the most recent 
materials relating to the property inlL.. ___ _.referred to a lease that expired in 2007. The Petitioner 
submits interior and exterior photographs, but does not say which locations the photographs show. 
There are exterior photographs of only two locations, neither of which shows information to identify 
the location (such as street names or a legible address). 
2 
The lease for thel lproperty, effective September 1, 2010, sets the rent at $800 per month, 
equivalent to $3200 for the last four months of the year. (The Petitioner was already at the same 
address, but the record does not show the pre-September rental rate.) Thel I lease, from late 
2008, shows a progressive annual rate with $42,000 due in 2010. These two leases, together, obligated 
the Petitioner to pay over $47,000 in rent during 2010. But the Petitioner reported less than half that 
amount - $23,712 - in rent expenses on its 2010 income tax return. This serious discrepancy raises 
questions about the actual scope of the Petitioner's operations, which is a material issue because the 
size of the company affects its organizational, administrative, and staffing needs. 
Another discrepancy concerns the Beneficiary's compensation. The Petitioner states, in a letter, that, 
because its earlier petition to classify the Beneficiary as an L-lA nonimmigrant was not approved, 
"Beneficiary is not currently employed by the Petitioner. Beneficiary continues to serve the Foreign 
Parent." 1 But in the same letter, the Petitioner states that the Beneficiary already serves as the 
company's president, and "is currently compensated at a rate of $36,000.00 per year." The Petitioner 
submits a photocopy of an IRS Form W-2, Wage and Tax Statement, indicating that the Petitioner 
paid the Beneficiary $26,400 in 2011 - a sum that suggests the Petitioner began paying the Beneficiary 
almost immediately after the parent company acquired a controlling interest in the petitioning entity 
in early 2011. These contradictory claims about the Beneficiary's employment, in the same letter, 
compound the questions of credibility noted above. 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other 
evidence submitted in support of the requested immigration benefit. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). As such, we can take the above credibility issues into account when considering 
the Petitioner's claims about the Beneficiary's role with the company. The Petitioner lists the 
Beneficiary's responsibilities as follows: 
• Serving as the key U.S. contact for the shareholders and directors of the parent 
company; 
• Planning and developing the U.S. investment; 
• Developing, organizing and establishing operations pertaining to the purchase, sale 
and marketing of merchandise for sale in the U.S. market; 
• Identifying, recruiting and building a management team and staff with background 
and experience in the U.S. retail market; 
• Overseeing managers who in tum supervise subordinate employees in running day­
to-day operations; 
• Executing or recommending personnel actions and establishing a management 
team to run daily operations; 
• Negotiating and supervising the drafting of purchase agreements; 
• Ensuring the marketing of products to consumers according to the parent 
company's guidelines; 
• Overseeing legal and financial due diligence processes and resolving any related 
issues; 
• Supervising all financial aspects of the company; 
1 The Beneficiary entered the United States in May 2010 as a B-2 visitor, a nonimmigrant classification that does not 
permit the individual to "engage in any employment" in the United States. See 8 C.F.R. § 214.l(e). 
3 
• Developing organizational policies and objectives; 
• Developing trade and consumer market strategies based on guidelines formulated 
by the parent company; 
• Negotiating prices and sales terms and formulating pricing policies and advertising 
techniques; and 
• Developing and implementing plans to ensure the company's profitable operation. 
The above statements attest to the general scope of the Beneficiary's authority, rather than specific, 
identifiable tasks. Several items on the list appear to be generic, with questionable relevance to the 
Beneficiary's position. The list refers to "guidelines formulated by the parent company," but the 
record does not establish those guidelines or show to what extent the foreign parent company, a 
distributor of cement and steel, involves itself in the operation of gas station convenience stores in the 
United States. The Petitioner does not explain how "[i]dentifying, recruiting and building a 
management team" is different from the separate listing for "establishing a management team." 
The job description indicates that the Beneficiary needs to develop new policies because the 
petitioning entity is a "new, developing company," but that entity has existed since 1998 (albeit under 
different ownership), and claims to have been operating several retail locations for years. A newly­
created subsidiary of the foreign parent company holds 50% of the Petitioner's shares, but there is no 
evidence that this new company engages in any business activity of its own, and therefore that new 
company has no evident need for policies, management, or other elements of a working business. 2 
With respect to the Beneficiary's stated role "as the key U.S. contact for the shareholders and directors 
of the parent company," the Petitioner also asserts that the Beneficiary "has a responsibility to maintain 
... the goodwill of the executives of the parent company in India." Documents in the record indicate 
that the parent company is a partnership, in which the Beneficiary himself is one of two equal partners. 
The parent company's organizational documents in the record do not refer to shareholders or directors, 
and a list of the foreign entity's employees does not appear to include any executives or individuals 
who would outrank the Beneficiary in the manner described. Thus, the quoted comments appear, 
again, to be generic statements rather than specific descriptions of the Beneficiary's actual 
responsibilities, duties, and tasks. 
We note that there are issues with subordinates' job descriptions as well. For example, the 
Beneficiary's highest-ranking subordinate is the vice president and general manager. The Petitioner 
claims that, for 20% of his time, this official will "[ o ]versee product development or monitor trends 
that indicate the need for new products and services." The Petitioner does not explain how the 
management of convenience stores entails "product development." As another example, the stated 
duties of the market/sales research analyst include "[ s ]upervising sales staff:" but an accompanying 
2 The subsidiary in question,__ _____ __. was registered with the State of Texas in March 2011. Review of state 
business information, available to the public, listsl I as "Franchise Tax Involuntarily Ended." (Search conducted 
at https://mycpa.cpa.state.tx.us/coa/Tndex.html on Sept. 15, 2021.) The website of the Texas Comptroller of Public 
Accounts explains that this status means "[t]he entity's registration or certificate was ended as a result of a tax forfeiture 
or an administrative forfeiture by Texas Secretary of State." See https://mycpa.cpa.state.tx.us/coa/RightToTransit.jsp (last 
visited Sept. 15, 2021). It is not clear how this issue affects the company's legal right to do business in Texas. This 
information did not change or determine the outcome of our appellate decision, but if the Petitioner chooses to pursue this 
matter further, any additional filing must address this issue and establish its satisfactory resolution. 
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organizational chart places sales staff under the supervision of the retail manager. Another stated duty 
is to "assign sales territories," which does not appear to be applicable to a sales staff that consists 
entirely of convenience store cashiers. These examples are consistent with the conclusion that the 
Petitioner has relied on generic job descriptions that do not always accurately reflect the true duties 
and responsibilities of its employees. 
In the denial notice, the Director stated that the Beneficiary's listed "responsibilities are generic and 
not detailed or specific to the position that is offered to the beneficiary." On appeal, the Petitioner 
repeats an abridged version of the same job description, without addressing or rebutting the Director's 
concerns about that job description. For the reasons discussed above, we agree with the Director that 
the Petitioner has not adequately or credibly described the Beneficiary's duties with the U.S. company. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary will be employed in a managerial or executive capacity in the United States. 
Because the above issue is sufficient to determine the outcome of the petition, we need not discuss the 
other stated ground for denial, concerning the question of whether the Petitioner had been doing 
business in the United States for at least one year prior to the filing date. Therefore, we reserve this 
issue. 3 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
3 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions 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). 
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