dismissed EB-1C Case: Retail And Import

U.S. Citizenship 
and Immigration 
Services 
In Re : 19803702 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 28, 2022 
Form 1-140, Petition for Multinational Manager or Executive 
The petition form states that the Petitioner is engaged in the business of "sale of herbal products, 
importing of toys, restaurant" 1 and seeks to permanently employ the Beneficiary as its "executive 
director" under the first preference immigrant classification for multinational executives or managers. 
See Immigration and Nationality Act (the Act) section 203(b )(1 )(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 Petitioner did not 
establish, as required, that the Beneficiary will be employed in the United States in a managerial or 
executive capacity. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo 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)(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 
1 In a supportingcoverletter , the Petitioner's general manager stated that the Beneficiary will "divide" his time between 
operating a restaurant - its most recent acquisition - and engaging in the wholesale orbealthandherbalproducts and teas, 
which was claimed to be the "primary business." The general manager indicated that the Petitioner was in the process of 
determining"initialfeasibility" of the toyimportingventureand was not actively engaged in business pursuits associated 
with that venture at the time offiling. 
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 ). 
Except where a different standard is specified by law, a petitioner must prove eligibility for the 
requested immigration benefit by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 
369, 375-76 (AAO 2010). Under the preponderance of the evidence standard, the evidence must 
demonstrate that the petitioner's claim is "probably true." Id. at 376. We will examine each piece of 
evidence for relevance, probative value, and credibility, both individually and within the context of 
the totality of the evidence, to determine whether the fact to be proven is probably true. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Petitioner initially refe1red to the Beneficiary's proposed position as "managerial/executive," 
claiming that the position incorporates elements of both statutory definitions. However, a petitioner 
claiming that a beneficiary will perform as a ''hybrid" manager/executive will not meet its burden of 
proof unless it has demonstrated that the beneficiary will primarily engage in either managerial or 
executive capacity duties. See section 101(a)(44)(A)-(B) of the Act. While in some instances there 
may be duties that could qualify as both managerial and executive in nature, it is the petitioner's burden 
to establish that the beneficiary's duties meet each set of criteria as put forth in the statutory definition 
for either managerial or executive capacity. A petition may not be approved if the evidence of record 
does not establish that the beneficiary will be primarily employed in either a managerial or executive 
capacity. In this instance, although the Petitioner has claimed that the Beneficiary's duties would be 
"both executive and managerial," the statementprovidedin response to the request for evidence (RFE) 
states that "[w ]e consider [the Beneficiary]' s duties to be primarily executive in nature. Accordingly, 
in this decision, we will address the issue of whether the Petitioner provided sufficient evidence 
demonstrating that the Beneficiary's proposed position would be 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. 
In determining whether a given beneficiary's duties will be primarily 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. If staffing levels are used as a factor 
in determining whether an individual is acting in an executive capacity, we take into account the 
reasonable needs of the organization in light of the overall purpose and stage of development of the 
organization. See section 10l(a)(44)(C) of the Act. An individual will not be deemed an executive or 
manager under the statute simply based on their position title or because they direct the organization 
or manage a function as the owner or sole managerial employee. 
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The petition form states thatthe Petitioner was established in 2015 and had a six employees atthe time 
of filing. However, in a supporting cover letter, the Petitioner claimed that it "currently employs 11 
workers." The Petitioner also depicted an I I-person staff in its organizational chart, which shows a 
four-tier staffing structure. The Beneficiary is depicted at the top tier followed, by the general manager 
at the second tier, who is depicted as overseeing a third-party accountant, a warehouse clerk, a buyer, 
and a sales manager, all depicted at the third tier of the hierarchy; the fourth tier depicts two full-time 
and three part-time salespeople, all subordinate to the sales manager. 
The Petitioner did not provide evidence to substantiate an 11- person staff at the time of filing, a claim 
which, as noted, is inconsistent with information contained in the petition itself. Rather, the Petitioner 
provided wage and tax documents that also highlight the staffing inconsistency. Namely, the 
Petitioner's third quarterly tax return for 2019 shows that seven employees were claimed during the 
three-month period that includes the month this petition was filed; likewise, the Petitioner's 2019 
payroll journal also lists seven employees, which is consistent with the seven Form W-2s, Wage and 
Tax Statements, the Petitioner issued to its employees in 2019. The Petitioner has neither 
acknowledged nor resolved these inconsistencies in the record with independent, objective evidence. 
SeeMatterofHo, 19 I&NDec. 582, 591-92 (BIA 1988). 
The supporting cover letter also includes infmmation about the Beneficiary's proposed position, 
stating that it will involve controlling business operations for "60-70%" of the Beneficiary's time and 
managing "business acquisitions" for the remaining "30-40%"; regarding the latter, the Petitioner 
point to its acquisition of a 52% ownership interest in a restaurant business and stated that the 
Beneficiary's focus would be overseeing the management of a restaurant, its only "acquisition" at the 
time of filing. The Petitioner stated that the Beneficiary would execute this role by assuming the 
following responsibilities: Directing and overseeing budget and finances; negotiating contracts; 
formulating goals and strategies towards business development and setting financial goals; planning 
and overseeing "administration of weekly management"; setting policies for employee compensation, 
business development, and marketing; establishing or modifying "business procedures" and 
"marketing procedures" and directing restaurant promotion; and conducting budget oversight through 
monthly and annual budget reviews. 
The Petitioner also discussed its intent to "diversify ex1stmg business," indicating that the 
Beneficiary's decision-making role will be critical in this pursuit. The Petitioner also stated that the 
Beneficiary would have ultimate authority over all personnel matters, including hiring, firing, and 
setting work schedules with respect to its herbal supplement business and the restaurant. However, the 
Petitioner did not establish that overseeing the Petitioner's restaurant is consistent with the statutory 
definition of executive capacity, nor did it provide an organizational chart showing how the existing 
investment fits within its organizational hierarchy. Further, the Petitioner did not demonstrate that its 
staffing structure at the time of filing was adequate to relieve the Beneficiary from having to perform 
the non-executive duties associated with its endeavor to expand and diversify its existing business. 
Although the Petitioner indicated that the general manager would be tasked with researching and 
investigating potential business ventures to determine "initial feasibility," the general manager's job 
description indicates that managing the Petitioner's herbal supplement business would be the general 
manager's focus; the job description made no mention of job duties outside the realm of managing the 
herbal supplement business. Likewise, the remainder of the Petitioner's staff at the time of filing was 
similarly tasked with duties that strictly pe1iained to the herbal supplement business, thereby leaving 
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us to question who would conduct the research and perform other operational tasks that may be 
necessary for the Beneficiary to determine the feasibility of an investment. The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N Dec. at 
3 76. If USCIS finds reason to believe that an assertion stated in the petition is not true, USCIS may 
reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § l l 54(b ); Anetekhai v. INS, 876 
F.2d 1218, 1220 (5th Cir. 1989);Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 
1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Regarding the Beneficiary's primary role of controlling business operations, the Petitioner stated that 
the Beneficiary would assume responsibility over supply markets, sales and marketing, and "business 
processes and specifications" and listed job duties associated with each of these three elements. It 
stated that the Beneficiary's responsibility over supply markets would involve inspecting markets and 
suppliers inl I and on the east coast by making yearly visits to "major customers and important 
suppliers," attending trade shows, and gauging market demand by reviewing reports created by the 
sales manager, buyer, and general manager. The Petitioner went on to discuss the Beneficiary's 
responsibility over sales, marketing, and finances, stating that the Beneficiary will be required to do 
the following: Review monthly company data, such as sales reports, financial statements, and research 
summaries created by subordinate staff; analyze marketing trends; make "corporate decisions"; adjust 
sales strategy based on recommendations from the general manager; assess staff performance; and 
"direct" the general manager to make new plans that correspond with ad justed sales targets and profits. 
Lastly, with respect to "business processes and specifications," the Petitioner stated that the 
Beneficiary would "direct" the general manager to implement "adjustments," review documents, 
"verify" that employees are complying with "the company's business processes and corporate 
objectives," and modify the company's "personnel pro grams." 
After reviewing the record, the Director issued a notice of intent to deny (NOID) which questioned 
the whether the Beneficiary would be employed in a managerial or executive capacity. Although the 
Director acknowledged the Beneficiary's discretionary authority, he highlighted the general lack of 
clarity as to the Beneficiary's job duties and lack of details explaining how he would direct the 
management of the organization. The Director also noted that the record lacks evidence that the 
Petitioner has "official or written policies or goals" and thus questioned whether meets the prong of 
the statutory definition of executive capacity that requires a beneficiary to establish the organization's 
goals and policies. In general, the Director determined that there was a lack of evidence that the 
Beneficiary would be employed in an executive capacity and that he would perform primarily 
executive-level job duties within the context of the Petitioner's operation. 
In response, the Petitioner reiterated the claim that the Beneficiary's duties would be primarily 
executive and that in assuming an executive role he would set the company's policies and goals, be 
responsible for discretionary making decisions, and direct the management of "daily functions," such 
as sales and marketing of products, without having to perform the non-executive duties of those 
functions. Although the Petitioner offered a sample list of actions the Beneficiary executed in 2020 
to show that the Beneficiary will "plan, direct and contra l" the herbal supplement operation, it did not 
specify the Beneficiary's daily or weekly activities and listed multiple items that were vague and not 
conducive to an understanding of the Beneficiary's actual tasks within the context of the Petitioner's 
operation. For instance, the Petitioner stated that the Beneficiary made investment decisions, created 
a financial plan consistent with "the pricing tax system," and managed costs based on human resources 
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plans. However, it identified only one investment decision - the decision to invest in a restaurant­
and provided no information about its current human resources plan or the Beneficiary's financial 
plan, nor did it define "the pricing tax system" or explain the relevance of such a system to the U.S. 
operation. The Petitioner stated that the Beneficiary reviewed pay and bonus structures to understand 
"trends in U.S. employment" and made changes to the existing "personnel system," but it did not 
describe its existing "personnel system" or explain how an understanding of employment trends is 
relevant to the Beneficiary's executive's responsibility to direct the management of the organization 
and create its goals and policies. The Petitioner's claim that the Beneficiary adjusted "division of 
roles" to create personnel plans consistent with "corporate strategy" is also vague and conveys no 
meaningful information about the Beneficiary's actual tasks, as the Petitioner did not define its 
"corporate strategy," explain the process for adjusting employees' roles, or identify the factors 
considered in making those adjustments and creating personnel plans. 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. Fed in Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner also stated that the Beneficiary took time to review reports containing various data to 
gauge market demand, adjust monthly and quarterly sales strategies and targets, create budgets, and 
assess staff performance. Although understanding relevant data may be a prerequisite for making 
certain business decisions, the Petitioner did not establish that reviewing market trends, ad justing sales 
strategies and targets, or creating budgets would be among the types of activities the Beneficiarywould 
undertake on a daily or weekly basis, or that the Petitioner's needs would be best served if the 
Beneficiary were to perform these activities as a routine part of his regular work week. The Petitioner 
also stated that the Beneficiary would "review and conf orm" its "business processes and 
specifications." Although the Petitioner provided a document describing the elements of its business 
process, the Beneficiary's role in this process appears to be limited and the record does not indicate a 
practical need for the Beneficiary to take action regarding the business processes and specifications as 
part of a daily or weekly routine. Likewise, the Petitioner's claim that its business processes will 
require the Beneficiary to make personnel decisions and "adjust personnel programs" is not 
accompanied by evidence that he will engage in these activities in the routine course of business, 
particularly given the claim thatthe Beneficiary's role is to provide the general manager with "monthly 
guidance" on these issues, thus indicating that the general manager will make the adjustments. 
In addition, the Petitioner provided a list of business decisions the Beneficiary made in his capacity as 
the executive director and president, including which new products to sell, which staffing adjustments 
should be made, which business to invest in, and which business goals to incorporate in a two-year 
plan, which was also subject to the Beneficiary's approval. However, the Petitioner did not elaborate 
on the underlying tasks the Beneficiary performed as part of this decision-making process or state how 
much time the Beneficiary would devote to decisions like these in the regular course of business. 
Further, although the Petitioner referred to the Beneficiary's active role in issuing directives to the 
U.S. staff "to research potential businesses" for future investments, the Petitioner appears to have had 
no designated employees to carry out such directives at the time of filing. The Petitioner must support 
its assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N Dec. at 3 7 6. 
Given the staffing ambiguity described herein, there is insufficient evidence to show that the 
Beneficiary's role in the Petitioner's expansion endeavors would be limited to merely making 
executive decisions on the basis of research and analysis presented to him. As such, we cannot rule 
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out the possibility that the Beneficiary's role would include operational tasks, such as gathering the 
data necessary to make a feasibility determination. 
On appeal, the Petitioner asserts that it demonstrated the Beneficiary's final decision-making authority 
over company functions. However, the fact that the Beneficiary will direct the management of the 
organization does not necessarily establish eligibility for classification in an executive capacity within 
the meaning of section 101 (a)( 44)(B) of the Act. Eligibility for this classification requires that the 
duties of the proposed position be "primarily" executive in nature. Section 101 (A)( 44)(B) of the Act 
To show that a beneficiary will "direct the management" of an organization or a major component or 
function of that organization, a petitioner must show how the organization, major component, or 
function is managed and demonstrate that the beneficiary primarily focuses on its broad goals and 
policies, rather than the day-to-day operations of such. An individual will not be deemed an executive 
under the statute simply because they have an executive title or because they "direct" the organization, 
major component, or function as the 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." Id. 
Here, while the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and 
possess the requisite level of authority with respect to discretionary decision-making, these elements 
alone are not sufficient to establish that the Beneficiary's actual duties would be primarily executive 
in nature. To make this determination, we rely, in part, on a detailed description of the beneficiary's 
job duties, information that each petitioner is required to submit. See 8 C.F.R. § 204 .5 (j)( 5). Although 
the Petitioner argues that it adequately explained how the Beneficiary would oversee and direct the 
general manager, we disagree. Despite highlighting the Beneficiary's unfettered authority over the 
Petitioner's finances, business matters, and personnel, the Petitioner's supporting evidence includes a 
deficient job description that lacks critical information about the specific activities that would be part 
of the Beneficiary's routine in the daily or weekly course of the Petitioner's operation. Job duties, 
such as formulating budgets and financial forecasts, establishing and revising business strategies, and 
reviewing performance reports, are so general that they are devoid of meaningful content and could 
be attributed to virtually any executive or senior management position with any company that sells 
products or services. While we acknowledge that the Beneficiary is the Petitioner's most senior 
employee and therefore has authority to establish policies and objectives and make decisions regarding 
all aspects of the business, the Petitioner has not established that these executive responsibilities would 
primarily occupy the Beneficiary's time. 
Finally, we note that a determination of the Beneficiary's eligibility hinges on a comprehensive 
analysis, which includes consideration of the entire job description and the organizational hierarchy 
within which those duties are to be performed. Having applied this wholistic approach in the matter 
at hand, we find that the record contains evidentiary deficiencies that preclude a favorable 
determination. As discussed above, the record lacks an adequate job description and contains 
ambiguities concerning the Petitioner's organizational hierarchy. As such, we conclude that the 
Petitioner has not established that it would more likely than not employ the Beneficiary in an executive 
capacity where the primary portion of his time would be spent performing executive job duties. 
ORDER: The appeal is dismissed. 
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