dismissed EB-1C Case: Retail And Wholesale

(b)(6)
DATE: FEB 0 5 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
V.S. n ,,partmc nt of Homela nd Securi ty 
U.S. Citize nship a nd Immigratio n Services 
Admini strative Ap peals Office (AA O) 
20 Mass ac husett s Ave., N.W., M.S 2090 
Washin 2.ton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER : 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establi sh agency 
policy through non-precedent decisions . If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form l-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~/a__ CfRok:-1:!: 
Chief , Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and 
the Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. The matter is 
now before the AAO on a motion to reconsider and a motion to reopen. The motion will be granted 
and the previous decision will be affirmed. 
The petitioner filed this petition seeking to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. The petitioner, a New Jersey 
corporation, operates a convenience store in Georgia and a wholesale distribution business based in 
New Jersey. It seeks to employ the beneficiary as its Executive Director. 
The director denied the petition on September 10, 2010, concluding that the petitioner failed to 
establish it would employ the beneficiary in a qualifying managerial or executive capacity. 
The petitioner subsequently filed an appeal. The AAO dismissed the appeal and concurred with the 
director's determination that the petitioner had not established that it would employ the beneficiary 
in a qualifying managerial or executive capacity. The AAO also concluded that the petitioner failed 
to establish that the beneficiary was employed by the petitioner's foreign parent company in a 
managerial or executive capacity prior to his admis sion to the United State s to work for the 
petitioner as a nonimmigrant. 
The petitioner now files a motion to reopen and reconsider the AAO's decision . 
The purpose of a motion to reopen or motion to reconsider is different from the purpose of an 
appeal. While the AAO conducts a comprehen sive, de novo review of the entire record on appeal, 
the AAO's review in this matter is limited to the narrow issue of whether the petitioner has presented 
and documented new facts or documented sufficient reasons , supported by pertinent precedent 
decisions, to warrant the re-opening or reconsideration of the AAO's decision to dismiss the 
petitioner's previous appeal. 
The regulation at 8 C.P.R. § 103.5(a)(2) states: 
A motion to reopen must state the new facts to be provided in the reopened 
proceeding and be supported by affidavits or other documentary evidence. 
8 C.P.R. § 103.5(a)(3) states, in pertinent part: 
A motion to reconsider must state the reasons for reconsideration and be 
suppo rted by any pertinent precedent decision s to establish that the decision was 
based on an incorrect application of law or Service policy. A motion to reconsider 
a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial 
decision. 
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I. The Law 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
1 year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form I-140 for classification of an alien under 
section 203(b)(1)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within 
an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 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; 
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(iii) if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, USCIS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. Section 10 I (a)( 44 )(C) of the Act. 
II. Managerial or executive capacity with the petitioner 
A. Facts and Procedural History 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on July 1, 2008. The 
petitioner explained that it is engaged in operating a convenience store/gas station in Georgia and a 
granite and ceramic tile import/export business in New Jersey. The petitioner stated on the Form I-
140 that it had eight (8) employees as of that date. It did not provide a detailed description of the 
beneficiary's duties in support of the petition. In response to the director's request for evidence, 
counsel provided a statement that described the beneficiary's duties as follows: 
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The beneficiary's position during his three years of employment with the company 
abroad and seven years employment with the U.S. entity has remained constant, with 
the exception that during the last three years, the beneficiary has spent greater time 
developing the wholesale activities of the company in New Jersey than managing, 
directing or overseeing the employees at the retail sales location, with respect to 
which the beneficiary has developed and coordinated operations in such a manner that 
the business is operating fairly independently of the beneficiary. The beneficiary is 
engaged , therefore, in a position much more akin to that which he held with the 
foreign entity prior to coming to the U.S., differing primarily in size and scope, 
conditions which hopes to gradually eliminate over the next few years. 
[The petitioner] operates a wholesale distributorship in New Jersey and a retail sales 
business in Georgia. Although the beneficiary is physically present at the Georgia 
location for approximately 60% of the year and physically present at the New Jersey 
location for approximately 40% of the year, of the 60% of time he is physically 
present in Georgia, 40% is spend on developing the wholesale operations cmTied out 
in New Jersey. 
The foreign entity's director also provided a letter dated July 2, 2010 in which it described the 
beneficiary's duties abroad as a marketing/sales executive. The director stated that the duties 
described therein "also describe, on a smaller scale, what [the beneficiary] does with the export 
portion of the business in the United States." The listed duties included: conducting market research 
based on knowledge of customers' purchasing needs; maintaining extensive knowledge of the 
company's products , components, functions and manufacturing processes; formulating sales goals 
with the support of the sales team and quality control team; preparing reports to outline status and 
market-worthiness of products; active participation in and cooperation with the quality control team; 
serving as a liaison between customers and company directors; concentrating on technical aspects of 
products through the quality control team; concentrate on marketing and selling products through 
sales team; and working with the research and development department and quality control officers 
on product development. 
With respect to .the company's staffing and organizational structure, the petitioner submitted an 
organizational chart at the time of filing indicating that the beneficiary is the CEO/President of a 
"New Jersey wholesale" business and a "Georgia Convenient [sic] Store." According to the 
organizational chart, the beneficiary supervises a manager, a sales officer and an administrative 
assistant in the New Jersey wholesale office. In addition, the chart indicates that the beneficiary 
supervises a manager, an assistant manager, a cashier and a part-time cashier located in the 
convenience store/gas station located in Georgia. A total of eight employees were identified on the 
chart; however, the petitioner indicated on its IRS Forms 941, Employer's Quarterly Federal Tax 
Return, that it had six to seven employees throughout 2008. 
In response to a request for evidence (RFE), the petitioner submitted another organizational chart. 
Counsel indicated that the new chart was current as of the date the petition was filed. However, the 
chart appeared to pre-date the chart provided at the time of filing. The chart included 2006 salary 
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information for the listed employees , and identified two employees who did not receive wages after 
2007 . Notably, on the original organizational chart, the petitioner indicated that is the 
manager of the New Jersey business, with an $18,000 annual salary, and is the 
administrative assistant. In the chart submitted in response to the RFE, the petitioner indicated that 
is the general manager of the New Jersey business, and is the 
administrative assistant. 
The petitioner's 2008 IRS Forms W-2, Wage and Tax Statement, confirmed wages paid to the 
following employees named on the convenience store side of the original organizational chart: the 
beneficiary , (store manager -$18,000); (assistant manager- $4,200); 
(part-time cashier- $3447.27); (part-time cashier- $10,265). There was no Form 
W-2 issue to this individual in 2008. On the New Jersey wholesale business side of the 
organizational chart , the petitioner submitted IRS Forms W-2 reflecting payments to: 
(manager - $6,000); -· · · (sales officer - $13,698); and (administrative 
assistant - $13,704). The petitioner also submitted a 2008 Form W-2 for one individual ( ___ _ 
who was not identified on the organizational chart submitted at the time of filing. 
The organizational chart included brief descriptions of job duties for the beneficiary's subordinates. 
The petitioner indicated that both managers "oversee, manage, direct, coordinate day to day 
activities of company" and "hire/fire and supervise support personnel." The petitioner stated that 
the store assistant manager is responsible to "provide assistance to manager, manage clerical 
functions, provide customer support, and supervise subordinate personnel," although the chart 
depicts no subordinates for this position . With respect to the wholesale business, the petitioner stated 
that the sales officer is required to "oversee, direct, coordinate the distribution of merchandise to the 
customers as well as establish quotas and goals for the staff." Finally, the petitioner stated that the 
administrative assistant performs administrative and clerical duties. 
The director denied the petition on September 10, 2010, concluding that the petitioner had submitted 
a vague duty description for the beneficiary's proposed position that failed to establish what he would 
be doing on a day-to-day basis. The director also noted that the petitioner had a limited number of 
employees which made it unclear whether the beneficiary would be acting primarily in a managerial 
or executive capacity . In addition, the director noted that according to the IRS Forms 941, 
Employer's Quarterly Federal Tax Return, for 2009, "the wages paid to seven employees are 
substantially low to be considered fulltime or professionals." In sum, the director concluded that the 
petitioner had failed to demonstrate that the beneficiary would allocate a majority of his time to 
executive or managerial duties. 
The AAO affirmed the director's decision and dismissed the petitioner's appeal. The AAO 
determined that the position description provided for the beneficiary was too general, included 
several non-qualifying duties, and failed to explain what he would primarily do on a day-to-day basis 
as the chief executive of a company operating wholesale and retail businesses in two different states. 
The AAO also questioned whether the petitioner's retail business, which appeared to be staffed by 
four part-time employees, had sufficient personnel to relieve the beneficiary from performing non­
qualifying duties associated with its routine operations. 
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On motion, counsel asserts that although the petitioner is a smaller company, the beneficiary qualifies 
as an executive as he directs and coordinates the operational activities of the company. 
Furthermore, counsel contends that the AAO, in considering the petitioner's staffing levels, erred by 
listing the salaries of the petitioner's employees for 2006 rather than for 2008, the year in which the 
cunent I-140 was filed. Counsel explained that in response to the director's request for evidence , the 
petitioner provided salary information for all of the petitioner's employees for 2008 and 2009, and 
thus these new figures should have been considered by the AAO in reaching its determination. 
With respect to the import/export division of the petitioner, counsel asserts that the beneficiary 
"directly supervises a sales manager, who possesses a bachelor of commerce degree, and quality 
control manager, who possesses a bachelor of science degree, copies of which the petitioner 
provided in response to the request for evidence." As such, counsel asserts that the beneficiary 
exercises "direct authority over two separate divisions of the company, sales and quality control, 
each of which is headed by professionals holding a baccalaureate degree." With respect to the 
convenience store, counsel asserts that the petitioner established that the beneficiary would primarily 
engage in supervising the store manager, who in tum supervises subordinate employees. Counsel 
acknowledges that the beneficiary may spend 20 hours per month performing day to day tasks 
necessary to operate the convenience store, but is otherwise engaged in the supervision of a manger 
and professional employees. Finally , counsel concludes by stating that "the petitioner has explained 
how the reasonable needs of its organization may be met by the services of the beneficiary as 
president and the additional six employees of [the petitioner]." 
In support of the motion, the petitioner submits an affidavit from the manager of the 
petitioner's convenience store. discusses the store's staffing levels and states that the 
former assistant manager, quit in April and May of 2008, 
respectively. indicates that these employees were replaced by 
who were hired as assistant manager in charge of accounts and assistant manager in charge ot 
inventory. indicates that while she and both assistant managers also perform typical 
cashier duties, she is in charge of supervising, scheduling and assigning tasks to the assistant 
managers. · provides a brief description of duties for each employee. 
confirms that the convenience store is open seven days per week for a total of 92 hours. 
She indicates that the beneficiary is present at the store approximately 15 hours per week , but states 
that he does not operate the cash register unless all other employees are unavailable, perhaps two to 
three times per month. indicates that the day-to~day operations of the store can be carried 
out by one trained employee per shift on weekdays . She provides a sample weekly schedule and 
indicates that employees have down time between customers to perform tasks such as inventory, 
stocking, purchasing and accounting . 
B. Analysis 
Upon review, the petitioner has not established that it would employ the beneficiary in a qualifying 
managerial or executive capacity. 
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When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). 
Published case law clearly supports the pivotal role of a clearly defined job description, as the actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 
204.5(j)(5). Beyond the required description of the beneficiary's job duties, USCIS reviews the 
totality of the record, and takes into account the nature of the petitioner's business, the employment 
and remuneration of employees, the duties performed by subordinate employees, if any, and any 
other facts contributing to a complete understanding of a beneficiary's actual role within a given 
entity. 
The petitioner has consistently failed to provide a detailed description of the duties the beneficiary 
performs with respect to the convenience store/gas station business. Further the petitioner has 
provided inconsistent information regarding the amount of time he allocates to this part of the 
business. The petitioner previously stated that the beneficiary spends 60 percent of his 50 hour 
workweek (30 hours) in Georgia. On motion, the petitioner's store manager claims that the 
beneficiary "is present around 15 hours per week." Therefore, it appears that the store manager's 
affidavit may reflect the beneficiary's current work schedule, rather than the schedule he maintained 
at the time the petition was filed. Regardless, the petitioner did not provide any information 
regarding the day-to-day duties performed by the beneficiary when he is working in the retail 
location, beyond acknowledging that he fills in for the operational staff for up to 20 hours per month . 
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 (E.D.N.Y. 1989), affd, 905 F.2d 41 
(2d. Cir. 1990). Absent a description of the actual duties the beneficiary performs with respect to the 
convenience store business, the AAO cannot determine that the beneficiary's duties are in a 
managerial or executive capacity. 
The petitioner did explain that a large portion of the beneficiary's duties will be allocated to 
overseeing the import/export business in New Jersey. Rather than providing a description of the 
beneficiary's duties within the context of the petitioner's own staffing levels, the petitioner stated 
that the beneficiary would perform the same duties he performed as a marketing/sales executive for 
the foreign entity, despite the differences in his level of responsibility, his job title, the size and 
nature of the companies and the functions managed by the beneficiary in each capacity. As such, the 
description provided little insight into what managerial duties he would perform as the executive 
director of a granite and ceramic tile wholesale company staffed by a part-time general manager, a 
sales officer and an administrative assistant. 
For instance , several of the beneficiary's stated duties for the foreign entity referred to his 
supervision of quality control staff and subordinate sales managers, which the petitioner does not 
claim to have. While the petitioner indicates that it has a sales officer, the petitioner indicated that 
this employee oversees distribution of merchandise to customers and establishes quotas and goals for 
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sales "staff' which the petitioner also does not claim to have. It is unclear who is actually performing 
the sales function for the petitioner's New Jersey wholesale business. 
Furthermore, the job description provided includes several other duties which are either non­
qualifying or are inconsistent with the nature of the petitioner's business and thus not credible. For 
example, the petitioner indicates that the beneficiary would "conduct market research based on 
knowledge of and familiarity with customers' purchasing needs"; "concentrate on the technical 
aspects of products"; "maintain extensive knowledge base of company's products"; "concentrate on 
marketing and selling products through the sales team"; "prepare reports to outline status and 
market-worthiness of existing, new of future products"; and "work with research and development 
department." It appears that the beneficiary is performing the duties inherent to the marketing, sales 
and quality control aspects of its wholesale distribution business, rather than supervising subordinate 
employees who perform these duties. An employee who "primarily" performs the tasks necessary to 
produce a product or provide a service is not considered to be "primarily" employed in a managerial 
or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" 
perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I & N Dec. 593, 604 (Comm. 1988). 
Overall, the petitioner has failed to provide detailed, consistent descriptions of how the beneficiary 
will allocate his time between the petitioner's wholesale and retail businesses, and how he will 
allocate his time among specific tasks. As such, the evidence of record does not establish that the 
beneficiary's primarily duties would be managerial or executive in nature. 
On motion, counsel claims that the evidence of record is sufficient to establish that the beneficiary 
spends the majority of his time supervising managerial and professional employees, and allocates 
only a small portion of his time to performing non-qualifying duties. The statutory definition of 
"managerial capacity" allows for both "personnel managers" and "function managers." See section 
101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). 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." Section 101(a)(44)(A)(iv) of the Act. 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. 
Counsel asserts that the petitioner's store manager is a supervisory or managerial employee. 
Counsel also states that, within the import/export division, the beneficiary supervises a "sales 
manager" with a bachelor of commerce degree and a "quality control manager" with a bachelor of 
science degree. Counsel indicates that the petitioner provided evidence of these employees and their 
educational credentials in response to the RFE. However, the record reflects that the petitioner has 
consistently stated that the employees of its wholesale/import division include a general manager, a 
sales officer and an administrative assistant and it has not provided educational credentials for any 
employees or previously claimed that any of them are professionals. Therefore, counsel's claim that 
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the beneficiary will supervise two professional employees is not persuasive. A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
While the petitioner does indicate that it employs a manager for its wholesale division, the petitioner 
has not claimed that this employee is a supervisor or professional. Further, the petitioner has not 
established that the store manager is a supervisory or managerial employee, other than in position 
title. The petitioner indicates that the store manager is responsible for staff scheduling and 
oversight; however, the record reflects that all three store employees are engaged in the day-to-day 
functions of operating the store during their scheduled shifts. Thus, the petitioner has not shown that 
the beneficiary's subordinate employees are supervisory, professional, or managerial, as required by 
section 101(a)(44)(A)(ii) of the Act. 
Counsel further claims on motion that the petltwner established that the beneficiary will be 
employed in an executive capacity because he is "clearly engaged in planning, directing and 
coordinating the operational activities of the company." 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. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 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 the beneficiary to direct and the 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 the owner or sole managerial 
employee. The 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." !d. 
Based on the deficiencies in the record with respect to the beneficiary's job descriptions, the 
petitioner has not established that the beneficiary spends the majority of his time "planning, directing 
and coordinating the operational activities" of the petitioning company as claimed. As discussed, the 
record contains little information regarding the beneficiary's actual duties or how he allocates his 
time among qualifying and non-qualifying duties. Further, as discussed below, the petitioner has not 
established that the company's subordinate employees would relieve the beneficiary from 
involvement in the day-to-day operations of the wholesale and retail divisions. 
The AAO notes that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See§ 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). In reviewing the relevance of 
the number of employees a petitioner has, federal courts have generally agreed that USCIS "may 
properly consider an organization's small size as one factor in assessing whether its operations are 
substantial enough to support a manager." Family Inc. v. U.S. Citizenship and Immigration Services 
469 F. 3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 
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175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). It is appropriate for USCIS 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). 
Here, the petitioner indicates that it has three employees working in the Georgia retail location , not 
including the beneficiary. At the time of filing, the petitioner indicated that its store employees 
included two cashiers, an assistant manager and a manager. The petitioner now makes claims that 
would suggest that its initial organizational chart did not reflect the company's actual staffing at the 
time of filing. For example , the petitioner states on motion that was hired to replace 
former assistant manager , who quit in April 2008. However, the organizational chart 
submitted in July 2008 identified as an assistant manager and · as a part-time 
cashier. The petitioner indicates that __, a cashier, had also quit and been replaced by 
prior to July 2008, but this change wa~ not reflected on the chart. While the petitioner 
submitted evidence that all of these employees worked during 2008, the exact structure of the 
company at the time of filing has not been consistently documented. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec . 582, 591-
92 (BIA 1988). 
The petitioner has provided a brief job description for each employee at the retail location based on 
the newly claimed staffing structure. The petitioner indicates that the general manager will "oversee 
assistant managers , assessing performance and assigning specific asks and job duties; oversee 
financial and accounting operations; maintain records, track expenditures and recommend budget 
changes; analyze financial data prepared by assistant accounts manager." The petitioner indicates 
that the assistant manager/accounts is responsible to "prepare deposits slips; count and verify funds 
in safe; reconcile lottery/lotto tickets; postage stamps; money orders , vending machines, change 
machines and register tills." Finally, the petitioner indicates that the second assistant 
manager/inventory will "inspect quality of shelved merchandise on regular basis; check quantities of 
stocked merchandise and notify vendor if restocking in advance of normal schedule is required." In 
addition, the general manager and two assistant managers will run the cash register and store in 
separate shifts where, during the majority of the time, there is a single employee on duty. The 
petitioner also explained that "customer service and operation of the cash register are an integral part 
of sales and are part of every employee's job, however, during the work shift, there are times when 
no customers are present and the employees are free to perform other tasks, including inventory, 
stocking, purchasing and accounting." 
Therefore, all of the employees given managerial job titles are actually operating cash registers, 
ordering inventory, stocking shelves, and performing other required daily tasks, and the petitioner 
acknowledges that the beneficiary may also be required to perform these duties at times. In addition, 
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the record does not fully support the petitioner's claim that the retail business requires only one 
employee during most shifts. In response to the RFE, counsel for the petitioner stated that "the 
business premises in Georgia consist of a retail sales store with office, storage area, food 
preparation/dining area and restrooms." The petitioner has not indicated that any of its employees 
perform duties associated with food preparation, cleaning or maintenance of the premises, receipt of 
deliveries, or back office work. While three employees may be sufficient to allow the store to have 
one employee present at any given time, the petitioner has not established that this staff relieves the 
beneficiary from involvement in the day-to-day operations of the business during the portion of time 
he spends working at the store. 
With respect to the wholesale business, the petitiOner asserts that the beneficiary oversees a 
manager, a sales officer and an administrative assistant. Although the petitioner indicates that the 
manager receives a salary of $18,000, he earned only $6,000 in 2008 and 2009. Further, the 
petitioner fails to provide sufficient information of the duties performed by the beneficiary's 
subordinate employees. As such, it is not possible to determine to what extent they relieve the 
beneficiary from performing non-qualifying duties associated with the wholesale distribution 
business, such as purchasing, sales, marketing, logistics and distribution-related duties. 
Based on the foregoing, although the petitioner has assigned managerial job titles to four of its six 
employees, it has not established that it has a reasonable need for the beneficiary to perform duties 
that are primarily in a qualifying or managerial capacity, or that either of its two businesses has 
sufficient staff to relieve the beneficiary from performing non-qualifying duties. Accordingly, the 
AAO will affirm its prior determination and the petition will remain denied. 
III.Managerial or executive capacity with the foreign company 
The second issue to be addressed is whether the petitioner established that the foreign entity 
employed the beneficiary in a qualifying managerial or executive capacity. 
In dismissing the petitioner's appeal, the AAO determined that the petitioner did not provide 
sufficient evidence to establish that the beneficiary was employed abroad in a qualifying managerial 
or executive capacity. 
On motion, the petitioner submits a letter from the foreign employer describing 
in more detail the 
duties performed by the beneficiary with the company. Counsel also states that the beneficiary 
supervised "two major subdivisions of the organization, namely, the sales division and quality 
control division." The petitioner submitted an organizational chart of the foreign company with the 
initial petition. The chart shows that the beneficiary directly supervised 5 sales officers and 3 quality 
control employees. 
The job description submitted on motion provides a greater understanding of the duties performed by 
the beneficiary when employed abroad and confirms that he performed a combination of qualifying 
and non-qualifying duties. While the job description indicates that the beneficiary relied on his 
subordinates for assistance with some tasks, it is evident that the beneficiary was directly involved in 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
market research and sales analysis , tabulating sales reports , preparing sales forecasts, identifying 
sales trends, and working with the research and development department. The petitioner bears the 
burden of documenting what portion of the beneficiary's duties will be managerial or executive and 
what proportion will be non-managerial or non-executive . Republic of Transkei v. INS , 923 F.2d 
175, 177 (D.C. Cir. 1991). Given the lack of these percentages, the record does not demonstrate that 
the beneficiary functioned primarily as a manager. Further, the record lacks a description of the job 
dutie s performed by the beneficiary' s subordinates in the foreign company . Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of So_ff1ci, 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing Matter of 
Treasure Craft of California , 14 I&N Dec . 190 (Reg. Comm'r 1972)). 
Accordingly, the petitioner has not submitted evidence on motion to overcome the AAO's previous 
determination with respect to the beneficiary 's foreign employment. 
IV. Conclusion 
The petitioner has not provided sufficient evidence and explanations in support of its motion to 
recon sider to overcome the AAO's adverse findings. As such, the AAO affirms its previous 
determination that the petitioner failed to establish that the beneficiary was employed abroad or 
would be employed in the United States in a qualifying managerial or executive capacity. 
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; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, the petitioner has not met that burden . Accordingly, the previous decision of the 
AAO will be affirmed and petition will remain denied. 
ORDER: The motion is granted . The AAO ' s deci sion dated September 19, 2012 is affirmed 
and pet ition remains denied.