dismissed EB-1C Case: Retail Management

MATTER OF S-1- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 30, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an investment company that operates two donut shops, seeks to permanently employ 
the Beneficiary as its general manager under the first preference immigrant classification for 
multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(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 Nebraska Servi9e Center denied the petition, concluding that the Petitioner did 
not establish, as required, that it will employ the Beneficiary in a managerial or executive capacity.1 
On appeal, the Petitioner submits additional evidence and asserts that the Director incorrectly 
concluded that the company does not have the staffing levels or organizational structure to support 
an executive or managerial position. 
Upon de novo review, we will dismiss the appeal. 
. I. LEGALFRAMEWORK 
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 preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
1 Initially, the Director denied the petition as abandoned after detennining the Petitioner did not respond to a request for 
evidence (RFE) within the required time period. The Petitioner filed a motion to reopen; the Director reopened the 
matter and issued a new RFE, and then denied the petition on its merits after reviewing the Petitioner's response. 
Matter of S-I- Inc. 
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. § 204.50)(3). 
II. DEFINITIONS 
"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. § 1101(a)(44)(A). 
"Executive capacity" is defined as 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 o( the organization. 
Section 10l(a)(44)(B) of the Act. 
A petitioner must show that the beneficiary will perform certain high-level responsibilities consistent 
with the statutory definitions of managerial or executive capacity. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the petitioner must 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); Champion World, 940 F.2d 1533. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue in this matter is whether the Petitioner established that the Beneficiary will be 
employed in the United States in a managerial or executive capacity. 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be performed by the Beneficiary. Beyond the required description of the job 
duties, we review the totality of the evidence, including the company's organizational structure, the 
duties of a beneficiary's subordinate employees, the presence of other employees to relieve a 
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. Accordingly, our 
analysis of this issue will focus on the Beneficiary's duties as well as the Petitioner's staffing levels and 
reporting structure. 
2 
.
Malter of S-1- Inc. 
A. Duties 
The Petitioner is self-described as an "investment" business, and the record shows that it was 
operating two donut and sandwich shops under the fictitious name when it filed the 
petition in May 2016. It seeks to employ the Beneficiary as its general manager and provided the 
following description of his proposed duties, with the approximate percentage of time he would 
allocate to each area of responsibility: 
1. Recruit, train and direct the management team [and] assign them job duties (20%) 
2. Set out the company's operational strategy and vision (20%) 
3. Manages and supervises the overall operations; makes final decisions of the 
company (20%) 
4. Manages the company to ensure achievement of business goals in revenue, 
expense, profitability, customer satisfaction, and associate morale. (20%) 
5. Determine the company's overall financial plan and budgets; decides what 
projects to cut funding to ( I 0%) 
6. Report to the Board director of the U.S. ·entity on a quarterly basis (10%) 
The Petitioner included an explanation of duties associated with each broad area of responsibility, 
but these descriptions were not detailed and did not provide additional insight into the nature of the 
Beneficiary's expected day-to-day managerial or executive duties. For example, the Petitioner noted 
that his responsibility for the company's "strategy and vision," would include planning and 
establishing "business goals, company policies and procedures," determining a "cooperation model" 
between the U.S. company and its parent, and communicating his vision to subordinates. However, 
the Petitioner did not provide examples of the types of goals or policies he would put into place, or 
detail how the U.S. donut shop business would cooperate with the foreign freight forwarding 
company. 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), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner's explanation of the Beneficiary's responsibility for directing the "management 
team," mentioned that the Beneficiary has "selected three employees from the foreign entity who are 
... dedicated to work solely for the U.S. entity as the company's Import/Export Support Team" and 
are expected to "better coordinate the import and export matters between the two companies as well 
as provide better after sale services to the foreign entity's North America customers." The Petitioner 
does not otherwise claim that it is engaged in any type of import/export activities and it has not 
identified these claimed foreign employees or how they fit into the Petitioner's organizational 
structure. 
The Beneficiary's stated responsibilities for managing and superv1smg the Petitioner's "overall 
operations" and managing the company "to ensure achievement of business goals," are further 
described in only general terms and it is difficult to discern why they are listed as separate areas of 
responsibility. Both descriptions mention that he will supervise subordinate managers and 
3 
Matier of S-1- Inc. 
"departments," review activities and reports, and make decisions based on current operations, but the 
Petitioner does not sufficiently explain what he does as part of his daily routine. The Petitioner also 
states that the Beneficiary spends 10% of his time on a quarterly report to the board of directors, but 
does not indicate why an action he performs every three months would require so much of his time 
on a daily or weekly basis. 
Overall, the assigned responsibilities are very generic and could describe duties assigned to any 
senior employee in virtually any type of company. As such, the description provides little insight 
into what the Beneficiary would do with respect to the Petitioner's retail donut business, and also 
introduces a potential inconsistency by mentioning a U.S.-based import/export business that is not 
otherwise documented in the record. Reciting a beneficiary's vague job responsibilities or broadly­
cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. 724 F. Supp. at 1108, aff'd, 905 F.2d 41 (2d. Cir. 1990). Here, the 
Petitioner. has not provided the necessary detail or an adequate explanation of the Beneficiary's 
activities in the course of his daily routine. 
The Director specifically requested a more detailed description of the Beneficiary's duties along 
with the percentage of time he would allocate to specific daily tasks, but the Petitioner's response 
included the same insufficient job description it had provided at the time of filing. 
The fact that the Beneficiary will manage a business as its senior employee does not necessarily 
establish eligibility for classification as a multinational manager or executive. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" managerial or executive in 
nature. Section 101 (A)( 44) of the Act. Even though the Beneficiary would exercise discretion over 
the Petitioner's operations and~possess authority with respect to discretionary decision-making, the 
position description alone is insufficient to establish that his employment will be in a managerial or 
executive capacity. 
Whether the broad duties attributed to the Beneficiary qualify as managerial or executive in nature 
depends in part on whether the Petitioner established that he would have sufficient subordinate staff 
to supervise and perform the day-to-day company activities he is claimed to manage or direct. As 
discussed further below, the Petitioner has not shown its ability to relieve the Beneficiary from 
significant involvement in the operational and administrative tasks required to operate its retail 
stores. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or 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 1 Ol(a)(44)(C) of the Act. 
Before turning to the Petitioner's evidence of its staffing levels and structure, we note that the 
Director's decision contained statements that reflected an improper standard for review with respect 
4 
Maller of S-1- Inc. 
to the size of the petitioning comp~y. Specifically, the Director noted that "the staffing structure of 
the Petitioning entity is not compatible with the basic minimum requirements" for this immigrant . 
classification, and that the Petitioner appears to be a "small business" and not "consistent with the 
composition of ·an established bona fide quintessential multinational corporation engaged in doing 
business." The fact that a petitioner is a small business or engaged in a particular industry will not 
preclude a beneficiary from qualifying, and a petitioner's reasonable needs must be reviewed within 
the totality of the evidence. While we agree with the Director's ultimate conclusion that the 
Petitioner did not establish the Beneficiary's eligibility as a multinational manager or executive 
based on the totality of the evidence presented in this matter, these statements were inappropriate 
and are withdrav.'Jl. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. The Petitioner does not claim 
that the Beneficiary will be a function manager, but we will consider whether the evidence 
establishes that he will be a personnel manager. Personnel managers are required to primarily 
supervise and control the work of 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."2 Section 
204.SG)( 4)(i) 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. Section 204.S(j)(2) of the Act. 
The Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
Therefore, we will consider the company's staffing and structure at the time of filing and any 
material changes that occurred subsequent to that date. 
The Petitioner claimed 13 employees at the time of filing in May 2016. Its organizational chart 
included 14 employees and depicted the Beneficiary as general manager with one direct subordinate, a 
deputy general manager, who, in tum, was supervising a marketing department manager, an operations 
department manager, and a "produce design" department manager. The chart depicted two store 
managers who report to the operations department manager and each store manager had three to four 
subordinate "staff' employees. The most recent quarterly wage report, from the first quarter of 2016, 
2 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section IO I (aX32) of the Act, states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
Therefore, we must focus on the level of education required by the position, rather than the degree held by subordinate 
employee. The possession of a bachelor's degree by a subordinate employee does not automatically lead to the 
conclusion that an employee is employed in a professional capacity. 
s 
Maller of S-1- Inc. 
included all 14 employees, but showed that the company had 10 employees in January and February 
2016, and 12 in March. The record does not contain any additional evidence of wages paid to 
employees in 20 I 6, despite the Director's specific request for this evidence in the RFE. 
An organizational chart submitted in response to the Director's RFE in March 2018 reflected 10 
employees, including the Beneficiary; however, the supporting evidence did not corroborate the 
staffing levels depicted in the chart. Specifically, although the chart included 10 employees, the 
Petitioner's most recent quarterly wage report, from the last quarter of 2017, included only eight 
workers, and indicated that there were only six employees in December of that year. The Petitioner 
also submitted evidence that it had placed a recruitment advertisement for the operations manager 
position in February 20 I 8, which suggests that this position was likely vacant at that time. Finally, 
the positions of market department manager and "produce department" manager did not appear on 
this chart, which also indicated a reduction in the number of lower level staff in each store from a 
total of seven workers to five workers. The Petitioner did not explain the changes to its structure, 
the reduction in staff, and any resulting changes in the duties performed by the remaining 
employees. 
At the time of filing, the Petitioner provided brief descriptions for each position depicted on its 
initial organizational chart. The position description for the deputy general manager indicates that 
he establishes policies, procedures, and long-term goals, evaluates performance of managerial 
personnel, and directs and coordinates the formulation of financial programs. Although the 
Petitioner stated that the deputy general manager reports to the Beneficiary, these broad 
responsibilities are indistinguishable from those provided for the Beneficiary and the Petitioner did 
not explain its need for two employees to act in essentially the same role. The Petitioner also 
provided vague descriptions for the "produce department" and marketing department managers, and 
then eliminated these positions from its structure by the time it responded to the RFE. We cannot 
determine that these were professional positions based on the limited information provided and 
neither employee was claimed to supervise other positions. 
The Petitioner consistently claimed to employ an operations department manager. However, as noted, 
it is unclear whether this position was filled at the time of the RFE response, based on the Petitioner's 
submission of a recent recruitment advertisement for an open operations manager position. The 
Petitfoner stated in the advertisement that the position requires a bachelor's degree and provided 
evidence that the individual who held the position at the time of filing has a master's degree. Finally, 
we note that the store manager positions have been filled consistently. While these employees would 
likely perform some supervisory duties such as employee scheduling, the record reflects that they are 
more likely than not performing many of the same duties as the regular store staff. 
The evidence must substantiate that the duties of a beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; job titles alone are not 
probative and will not establish that an organization is sufficiently complex to support an executive 
or managerial position. At the time of filing, the Petitioner claimed to have 13 to 14 employees and 
indicated that 7 of them have managerial job titles. In response to the RFE, the Petitioner claimed to 
have ten employees, including five managers, but it documented only six workers in total. For the 
6 
.
Malter of S-l- Inc. 
reasons discussed further below, the evidence does not support a conclusion that the Beneficiary's 
subordinates are supervisors, managers, or professionals. Instead, the Beneficiary's subordinates 
would more likely than not perform the actual day-to-day tasks of operating the Petitioner's retail 
businesses. 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, we must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. The Petitioner operates two retail donut shops. The submitted evidence, which 
includes the Yelp page for its ---~ store, indicates that it is open seven days a week for a 
total of 88 hours. 
The Petitioner's wage records for the first quarter of 2016 show the following staff and wages paid 
in the quarter preceding the filing of the petition: 
store 
Manager - $6240 
Senior staff - $4800 
Staff#l - $1712 (13 hrs/week) 
Staff#2 - $130 (13 hours total) 
Staff #3 - not paid in first quarter 
store 
Manager - $5760 
Senior staff - $4800 
Staff #I - $3840 (29 hrs/week) 
Staff #2 - $100 (IO hours total) 
We will also consider the Petitioner's staffing and structure at the time it responded to the RFE in 
March 2018 (based on its quarterly wage reports for the fourth quarter of2017): 
store 
Manager - $6240 
Senior staff- $5760 
Staff #1 - $2775 (19 hrs/week) 
Staff #2 - not paid 
store 
Manager - $5760 
Senior staff - $3525 (25 hrs/"Yeek) 
Staff #1 - not paid 
As noted, the Petitioner claimed ten employees when it responded to the RFE, but its most recent 
quarterly wage report showed eight employees, with only six by the end of 2017 and it is unclear 
who was removed from the payroll. The Petitioner's stores offer freshly-made donuts and other 
pastries as well as made-to-order sandwiches. Notably, the Petitioner's descriptions of the lower­
level store employees' duties do not mention any food preparation, cleaning, or cashier duties, but it 
is evident that someone must perform these tasks. Further, each store would reasonably require 
more than one employee on duty during most if not all of its hours. Based on the staffing at the time 
of filing, it appears that the managers and senior staff worked sufficient hours to keep the stores 
minimally staffed during their operating hours, but it is unclear that the managers would have an 
opportunity to spend any significant time performing supervisory duties or administrative tasks 
associated with the stores' operations, such as reconciling receipts, banking, purchasing, receiving 
deliveries, etc. At the time of the RFE response, both stores had experienced a reduction in claimed 
lower~level staff. 
'7 
Malter of S-1- Inc. 
Based on these staffing levels, the Petitioner has not established that it had a reasonable need for its 
senior management staff to oversee the store managers without involvement in the day-to-day 
operations. Rather, it appears that the stores likely had staffing needs beyond what could be covered 
by the store staff identified on the company's organizational charts, particularly after the staffing 
levels decreased. Based on the Petitioner's reasonable needs and staffing levels, the record does not 
establish how the company supported the five-tier personnel structure depicted in its organizational 
charts. The record remains unclear regarding the actual duties performed by the claimed subordinate 
managers and is insufficient to establish that they would perform the substantial majority of the 
company's operational, administrative, first-line supervisory, and other non-qualifying tasks. 
The Petitioner claims, in the alternative, that the Beneficiary will be employed in an executive 
capacity. 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 10l(a)(44)(B) of the 
Act. 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 a beneficiary to direct and they 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 he "directs" the enterprise 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. 
The Beneficiary's overap authority over the company and discretion to select, hire, and supervise 
employees is noted, but the Petitioner has neither provided a sufficiently detailed description of the 
Beneficiary's job duties, nor established how he would spend his time primarily on the broad 
policies and goals of the business, rather than participating in its day-to-day operations. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufliciently relieved from significant involvement in the company's operational and administrative 
functions, despite his senior position in the company hierarchy. Accordingly, the Petitioner has not 
met its burden to show that his duties would be primarily managerial or executive in nature. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in the United States in a managerial or executive capacity. · 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-1- Inc., ID# 1757842 (AAO Oct. 30, 2018) 
8