dismissed EB-1C Case: Retail

MATTER OF K-N-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 26, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a company operating gas stations and convenience stores, seeks to permanently employ 
the Beneficiary as chief executive officer 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)(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 Beneficiary was employed abroad in a managerial or executive 
capacity. The Director further determined that the Petitioner did not demonstrate that the 
Beneficiary would be employed in the United States in a managerial or executive capacity. The 
Petitioner later filed a motion to reconsider the Director's decision, which was denied. The matter is 
now before us on appeal. 
On appeal, the Petitioner states that the Director did not sufficiently articulate the finding regarding 
the Beneficiary's former managerial capacity abroad. In addition, the Petitioner asserts that in his 
capacity in the United States the Beneficiary acts as a personnel manager overseeing two subordinate 
managers. 
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 
Matter of K-N-, Inc. 
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). 
II. MOTION REQUIREMENTS 
The issue in this matter is whether the Director properly denied the Petitioner's motion to reconsider. 
To merit reconsideration, a petitioner must meet the formal filing requirements (such as, for 
instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with the 
correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 
A motion to reconsider must (1) state the reasons for reconsideration; (2) be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect application of 
law or policy; and (3) establish that the decision was incorrect based on the evidence of record at the 
time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
III. ANALYSIS 
A motion to reconsider must establish that the denial was based on an incorrect application of law or 
policy and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). 
A. Managerial Capacity Abroad 
The first issue we will analyze is whether the Director's conclusion that the Petitioner did not 
establish that the Beneficiary was employed abroad in a managerial capacity represented an incorrect 
application or law or policy. 
In the initial denial decision, the Director concluded that the Petitioner did not establish that the 
Beneficiary was employed in a managerial or executive capacity abroad because his submitted duties 
were overly vague and did not demonstrate that he had primarily acted in a managerial or executive 
capacity abroad. On motion, the Petitioner asserted that the Beneficiary acted in a managerial 
capacity abroad from December 1999 through February 2001 and indicated that he oversaw 
supervisory and professional subordinates abroad during this time. It also resubmitted evidence 
meant to demonstrate that his foreign subordinates abroad held bachelor's degrees. 
In denying the Petitioner's motion, the Director again concluded that the Beneficiary's duties were 
overly vague and noted that it did not submit additional evidence specific to his duties to overcome 
the previous decision. On appeal, the Petitioner states that the Director did not clearly articulate 
what was deficient about the Beneficiary's stated foreign duties and again points to documentation it 
asserts demonstrates that his subordinates abroad held bachelor's degrees. 
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Matter of K-N-, Inc. 
We concur with the Director's reasoning in denying the motion to reconsider. As correctly noted by 
the Director, the Petitioner did not sufficiently articulate the Beneficiary's duties abroad. 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will performed certain high-level responsibilities. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary was primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the foreign employer's other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner stated that the foreign employer was engaged in the sale of footwear and leather 
products. The Petitioner indicated that the Beneficiary acted as managing director of the foreign 
employer "for more than nine years before transferring to the United States" in 2001. It also 
indicated that the Beneficiary's tenure as managing director began in December 1999. 
The Petitioner provided a foreign duty description for the Beneficiary stating that the Beneficiary 
was devoted to some of the following tasks abroad: 
• "developing strategic plans," "studying marketing and financial opportunities," 
and "recommending objectives," including initiating "marketing studies," 
"identifying new marketing channels," and "new suppliers;" 
• "accomplishing objectives by establishing plans, budgets, and results 
measurements," also consisting of establishing "operating plans and budgets" and 
instituting "corrective measures;" 
• establishing "procurement, production, marketing and services policies and 
practices" and representing the company at trade shows and industry events; 
• improving "sales strategies" and "customer communications," collaborating with 
"wholesalers, retailers, government, vendors, and employees," and 
communicating "values, strategies, and objectives" to subordinate managers; 
• developing "product pricing standards," enforcing organizational standards, and 
"determining market needs ... and responding with a plan that provides products 
and services accordingly;" and 
• "managing sales incentive programs," "overseeing the legal and financial due 
diligence process," and "representing the company in all contract negotiations." 
First, in apparent contradiction, the Petitioner states that the Beneficiary's tenure with the foreign 
employer began in December 1999 and that he worked there until his entry into the United States in 
2001, but also states that he worked as managing director "for more than nine years before 
transferring to the United States." This material discrepancy leaves question as to the Beneficiary's 
claimed position abroad. The Petitioner must resolve this discrepancy in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
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Matter of K-N-, Inc. 
Further, we concur with the Director's conclusion that the Petitioner did not submit a sufficiently 
detailed foreign duty description describing the Beneficiary's day-to-day managerial-level tasks. 
The Beneficiary's foreign duty description includes several generic duties that could apply to any 
manager acting in any business or industry and they do not provide insight into the actual nature of 
his role. In fact, the Beneficiary's asserted foreign duties do not specifically mention the foreign 
employer's asserted business, the sale of footwear and leather products. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. 
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 Petitioner provided insufficient examples and little supporting documentation to demonstrate the 
Beneficiary's performance of qualifying duties, such as strategic plans he developed, objectives he 
recommended, marketing studies he initiated, new suppliers he identified, operating plans and 
budgets or established, or corrective actions he instituted. Likewise, the Petitioner did not articulate 
or document procurement, production, marketing or services policies and practices the Beneficiary 
established or updated, trade shows or industry events he attended, sales strategies he set, or 
wholesalers, retailers, or vendors he collaborated with. In addition, it did not detail or document 
values, strategies, or objectives the Beneficiary communicated to his subordinates, product pricing 
standards he developed, organizational standards he enforced, sales incentive programs he managed, 
or contract negotiations he handled. 
Therefore, we concur with the Director's conclusion that the Beneficiary's foreign duties are overly 
generic. In addition, the Petitioner provides insufficient reasons on motion or appeal to demonstrate 
that the Director's conclusion was inconsistent with law or policy. 
Furthermore, the Petitioner did not sufficiently document the Beneficiary's asserted foreign 
employment during the qualifying three year period prior to his entry into the United States in 2001. 
As noted, the Petitioner must demonstrate that the Beneficiary was employed abroad in a managerial 
or executive capacity for at least one year in the three years preceding his coming to work in the 
United States. See 8 C.F.R. § 204.5(j)(3). 
The Petitioner asserts that the Beneficiary oversaw subordinate managers and professionals 
indicating that he acted as a personnel manager abroad. 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 professional." 8 C.F.R. 
§ 204.5(j)(4)(i). If a beneficiary directly supervises other employees, the beneficiary must also have 
the authority to hire and fire those employees, or recommend those actions, and take other personnel 
actions. 8 C.F.R. § 214.2(1)(1)(ii)(B)(3). 
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Matter of K-N-, Inc. 
The Petitioner submitted an undated foreign organizational chart indicating that the Beneficiary 
oversaw a purchase manager, a chief accountant, a store manager, and a marketing director. Further, 
the chart indicated that the purchase manager supervised a quality controller overseeing a store 
office employee, a dispatch officer, and a designer, while the chief accountant was shown to 
supervise a junior accountant. Further, the chart reflected that the store manager supervised a 
cashier and a helper, while the marketing director oversaw a sales manager supervising an assistant 
sales manager and sales representatives. The Petitioner also submitted 2015 foreign payroll 
documentation specific to these employees. In addition, on motion and appeal, the Petitioner 
provided foreign bachelor's degrees for the Beneficiary's immediate managerial subordinates and 
asserted that they qualified as professionals. 
The Petitioner did not submit evidence relevant to his qualifying foreign employment prior to 2001. 
The Beneficiary's qualifying foreign employment is asserted to have taken place from December 
1999 to February 2001; however, the evidence provided by the Petitioner appears to be relevant to 
the foreign employer's organizational structure in 2015. Further, United States Citizenship and 
Immigration Services (USCIS) records reflect that the Petitioner filed several other 1-140 petitions, 
including one in 2005 that set forth a foreign organizational chart. However, the foreign 
organizational chart provided along with the 2005 petition reflected that the Beneficiary worked as a 
joint partner overseeing a store manager who supervised a cashier, sales representatives, and a 
helper. This prior organizational chart, closer in time to the Beneficiary's entry into the United 
States in 2001, did not include the several managerial subordinates listed in the chart provided in 
support of the current petition. As such, it appears that the Petitioner has submitted a current foreign 
employer organizational chart that is not relevant to establishing the Beneficiary's foreign 
employment in a managerial capacity prior to his entry into the United States in 2001. 
For the reasons set forth above, we concur with the Director's conclusion that the Petitioner did not 
demonstrate that the Beneficiary acted abroad in a managerial capacity. The Petitioner has not 
submitted a sufficiently detailed duty description for the Beneficiary nor has it provided evidence of 
the foreign employer's organizational structure during the time of his asserted qualifying foreign 
employment. 
As the Petitioner was required to overcome all grounds for denial for the motion to reconsider to be 
granted and the Director thoroughly and adequately addressed the Beneficiary's proposed 
employment in a managerial capacity in the United States in his initial denial decision, we decline to 
address this issue on appeal. Therefore, the Petitioner did not meet the requirements of a motion to 
reconsider. 
IV. CONCLUSION 
The appeal must be dismissed because the Petitioner did not establish that the Director's denial of 
the motion to reconsider was improper. 
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Matter of K-N-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-N-, Inc., ID# 1592670 (AAO Sept. 26, 2018) 
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