dismissed EB-1C Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-G-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 28, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of two gas stations and convenience stores, seeks to permanently employ 
the Beneficiary as its president 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 Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in the United States in a 
managerial or executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director overlooked 
substantial evidence in the record and reached incorrect and unfounded conclusions regarding the 
Petitioner's staffing levels and structure. The Petitioner maintains that the Beneficiary's position 
satisfies the statutory definitions of both managerial capacity and executive capacity. 
I. LEGAL FRAMEWORK 
An immigrant visa 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 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. This 
classification does not require a labor certification. 
The petition must include a statement from an authorized official of the petitioning United States 
employer which demonstrates that the beneficiary has been employed abroad in a managerial or 
executive capacity for at least one year in the three years preceding the filing of the petition, that the 
beneficiary is coming to work in the United States for the same employer or a subsidiary or affiliate of 
the foreign employer, and that the prospective U.S. employer has been doing business for at least one 
year. See 8 C.F.R. § 204.50)(3). 
Matter of P-G-S- Inc. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it would employ the Beneficiary in a 
managerial or executive capacity. 
The law defines the term "managerial capacity" as "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; 
(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. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A). Further, "[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." !d. 
The term "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 of the organization. 
Section 101 (a)( 44 )(B) of the Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (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 1 01 (a)( 44 )(C) of the Act. 
A. Staffing and Organizational Structure 
Before turning to the Petitioner's description of the Beneficiary's duties, we note that the Director 
based his decision primarily on an analysis of the Petitioner's staffing levels. The Director 
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Matter of P-G-S- Inc. 
concluded that the Petitioner's evidence did not support its claim that most of its employees are full­
time workers, and further determined that the subordinate "managers" supervised by the Beneficiary 
are not bona .fide managers or supervisors. The Director found that the Beneficiary would be, at 
most, a first-line supervisor of non-professional personnel and would not perform primarily 
managerial or executive duties. 
The Petitioner maintains that the Director reached an incorrect conclusion regarding the number of 
full-time employees and made unfounded assumptions regarding the nature of the duties performed 
by the Petitioner's vice president and store managers. 
The Petitioner operates two gas stations and convenience stores, one of which also prepares and sells 
fast food. Both stores are open for business 80 hours per week. The Petitioner claimed 16 
employees on the Form I -140 and "approximately 18" employees in its letter accompanying the 
petition. 
An organizational chart submitted at the time of filing in August 2015 indicated that the Beneficiary 
directly supervises a vice president, who in tum supervises two store managers. The chart indicates 
that each store manager supervises an assistant manager and six cashiers, for a total of 18 
employees, including the Beneficiary. The Petitioner indicated that five of the twelve cashiers are 
part-time workers and all other employees work full-time. 
The Petitioner's Texas quarterly wage report for the 2015 third quarter shows that it had 18 
employees as of August 2015. The record also contains the Petitioner's year-end payroll summary 
for 2015, which shows the number of weeks and average hours worked per week for each employee. 
One store manager averaged less than 30 hours per week, and the other manager and assistant 
managers worked 36 to 37 hours weekly. While there are other employees who worked 35 or more 
hours per week, the total number of employees who worked full-time is lower than the Petitioner 
claimed. 
The Petitioner indicated that the vice president manages the work of "the Manager," meets with the 
Beneficiary to discuss operational issues, and oversees the financial aspects of the company, 
including accounts payable and receivable. The store managers and assistant managers are 
responsible for the day to-day operations; ordering; scheduling, training and supervising employees; 
determining stock needs; interacting with vendors and customers; monitoring receipt of goods, 
maintaining inventory and minimizing waste; controlling funds; and ensuring that cashiers adhere to 
store policies. The wages for the cashiers, assistant managers, and managers range from $8.50 to 
$10.00, with some part-time cashiers earning the same hourly wage as the store managers. 
The Petitioner also submitted sample weekly employee schedules for both of its stores. While both 
stores appear to have sufficient staff to assist customers with gas, food, and retail store purchases, 
the record does not contain sufficient evidence to show that the manager and assistant managers are 
acting in a supervisory role or otherwise performing duties that differ from those of the cashiers. 
The Petitioner's " ' store regularly has only three employees working over the course 
of a 16-hour day, and some days during which neither the manager nor the assistant manager is 
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Matter of P-G-S- Inc. 
present. In addition, the work schedules show that the store manager is frequently the 
only employee in the store in the morning and it is unclear how she is carrying out the oversight and 
monitoring duties assigned to her. 
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. 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." 1 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. 8 C.F.R. § 204.50)(2). 
Here, although the Petitioner's organizational chart indicates that there are three tiers of supervisors 
between the Beneficiary and the retail store cashiers, the record does not adequately support the 
Petitioner's claim that the assistant managers and managers are performing supervisory or 
managerial duties, rather than the routine operations of the operating a gas station and convenience 
store. Similarly, the position description for the vice president is too general to enable us to discern 
that he is acting in a supervisory or managerial capacity, as it does not explain what he actually does 
beyond handling accounts payable and receivable. 
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; charts depicting tiers of 
subordinate employees with managerial job titles is not probative and will not establish that an 
organization is sufficiently complex to support a managerial or executive position. The evidence 
does not support a conclusion that the Beneficiary's subordinates are supervisors, managers, or 
professionals, and the record does not support a conclusion that he is a personnel manager. 
Further, even if we determined that the Beneficiary supervises subordinate managerial or 
supervisory employees, the Petitioner maintains, as discussed further below, that the Beneficiary 
would be allocating 5 percent of his time to personnel matters and 15 percent of his time to 
1 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 I 0 I (a)(32) 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. Although the Petitioner indicates that a significant 
number of its employees have unspecified "college degrees," it has not established that a bachelor's degree is actually 
necessary to perform the retail store functions described in the record. 
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Matter of P-G-S- Inc. 
"oversight of operations," thus suggesting that he would not be primarily performing personnel 
management duties. 
Finally, we acknowledge that, in response to the request for evidence (RFE), the Petitioner submitted 
a purchase agreement for a hotel located in Ohio, which would employ 15 to 20 
additional personnel. The Petitioner stated that the agreement was still under negotiation as of July 
2016. There is no evidence that the negotiation was underway or that the purchase was imminent at 
the time the petition was filed, or that the Petitioner has since acquired the hotel. Our review is 
limited to the staffing and structure in place at the time of filing. 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.P.R.§ 103.2(b)(l). 
Based on the staffing at the time of filing, we cannot conclude that the retail store staff sufficiently 
relieved the Beneficiary from involvement in the day-to-day operations of both stores, administrative 
functions associated with the stores, or first-line supervision of non-professional personnel. 
B. Duties 
Turning to the Beneficiary's job description, the regulation at 8 C.P.R. § 204.50)(5) requires the 
Petitioner to submit a statement which indicates that the Beneficiary is to be employed in the United 
States in a managerial or executive capacity. The statement must clearly describe the duties to be 
performed by the Beneficiary. 
The 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. 
At the time of filing, the Petitioner provided a breakdown of the Beneficiary's duties, summarized 
below: 
• 30% - U.S. Business Development and Expansion duties, including managing the 
development of the business and its continued expansion, planning objectives and 
strategies for business development, and exercising absolute discretion in determining 
the course of business development. 
• 30% - Strategic Planning duties, including defining corporate goals and objectives in 
the areas of revenue, profit, customer satisfaction levels and employee retention, 
formulating and directing the long-term and mid-term strategic plans, market 
development, and development of the client base and overall operations of the 
company; and consulting with professionals and financial consultants in finding the 
best possible markets for expanding the business and securing additional stores. 
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Matter of P-G-S- Inc. 
• 15% - Market and Financial Analysis for Business Acquisition/Expansion duties, 
including studying the U.S. market, including demographics and market demand, 
making executive decisions to acquire new businesses in consultation with other 
professionals, and signing all business documents, purchase agreements, and financial 
documents. 
• 15% - Oversight of Operations of the U.S. Company, including management and 
oversight of the personnel and systems required to ensure operation of the company, 
and consulting with the vice president and store managers to make necessary changes 
in the areas of inventory management, pricing, budgets and implementation of goals 
and objectives. 
• 5% - Staff requirements of the U.S. Company, including ultimate discretion over all 
personnel and recruitment matters, establishing management and training systems, 
and controlling the work of the vice president and other future management staff. 
• 5%- Technology Equipment and Accounting Systems, including establishing training 
for safety measures, the management of invoice processes and accounting systems, 
dictating the most efficient equipment and technology, and directing and managing 
processes relating to costs analysis. 
As noted by the Director, the record of proceeding includes a previous Form I -140 filed by the 
Petitioner in 2013, at which time the company owned the same two retail locations and claimed a 
similar organizational structure with a vice president, two store managers, two assistant store 
managers, and cashiers. At that time, the Petitioner claimed that the Beneficiary spent 35% of his 
time on personnel management, 25% on operational management, 15% on budget management, 10% 
on financial analysis, 10% on business development, and 5% on marketing and promotion. 2 
The Director noted in the RFE that the description submitted with this petition was substantially 
different and requested an explanation for the changes. The Director also requested additional 
information regarding the Beneficiary's specific day-to-day duties and the percentage of time to be 
spent on individual tasks. 
In response, the Petitioner maintained that the various duty descriptions in the record are 
substantially similar, and noted that the "duties/categories do not operate exclusively from each 
other. Instead they compliment [sic] and overlap each other." In addition, the Petitioner claimed 
that the Beneficiary's direct role in personnel management had decreased as "the two Managers and 
two assistant Managers have begun to play a significant role in managing the staff of the company." 
2 The record contains another job description provided in July 2014, which states the Beneficiary allocates his time as 
follows: 15% revising corporate goals and objectives and developing operational guidelines, policies and procedures; 
15% overseeing inventory management activities; 20% overseeing and managing personnel; 5% meeting with vice 
president and supervisors to review progress towards achieving objectives; I 0% reviewing budgets and analyzing 
operational costs to reduce unnecessary costs; 5% analyzing customer satisfaction levels and deciding what products to 
offer; 5% managing the development of promotional material and programs and setting pricing structures; 15% 
managing all human resources activities including interviewing, selecting, hiring and training; 5% overseeing marketing 
efforts including research and analysis; and 5% other duties. 
Matter of P-G-S- Inc. 
The Petitioner provided a slightly expanded description of the duties listed at the time of filing and 
asserted that the manager, assistant managers and cashiers perform all productive and administrative 
tasks of the company, while the Beneficiary, with assistance from the vice president, is primarily 
responsible for goal-setting, policy making, and discretionary decision-making. 
Upon review, the Petitioner did not adequately address the significant changes in the Beneficiary's 
job duties given that the nature and scope of the company and its staffing and structure remained 
essentially unchanged since the previous Form I-140 was denied. In light of the fact that the petition 
indicates that the Beneficiary works at the store location that employed a part-time manager at the 
time of filing, the previous job descriptions focused on personnel and operational management were 
more credible than the current description which indicates that the Beneficiary allocates 75 percent 
of time to strategic planning, business development, goal setting, policy making and other higher 
level duties in support of business acquisition and expansion. 
Further, the Petitioner's claim that the duties of the managers and assistant managers have 
significantly changed is not supported by the record, which includes essentially the same job 
descriptions for the store managers and assistant managers in support of both petitions. Moreover, 
as discussed above, the Petitioner's work schedules suggest that the managers are likely spending a 
significant portion of their time working as cashiers in order to meet the operational needs of the 
stores. 
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. 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 they "direct" 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." !d. 
Here, while the job description indicates that the Beneficiary primarily performs duties that would 
fall under the definition of executive capacity, those duties are not credible when considered in the 
context of the record as a whole. The Petitioner was established in 2008 with one retail location. It 
acquired one additional store in 2012 and both stores underwent some improvements and 
renovations over the years. However, the record does not support a finding that the company was 
growing at a rate that would require an executive employee whose primary day-to-day duties are 
related to strategic planning and expansion activities. If USCIS finds reason to believe that an 
assertion of fact 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. § 1154(b); Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-
Matter of P-G-S- Inc. 
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). 
Further, while the Petitioner provided a lengthy description in response to the RFE, the individual 
responsibilities are described in general and repetitive terms. For example, the Petitioner includes 
"planning the objectives and strategies," "developing operational guidelines, policies and 
procedures," "revising corporate goals and objectives," "defining corporate goals and objectives of 
the entity," "developing operational guidelines, policies and procedures to achieve goals," "strategic 
planning in terms of business expansion," and "formulating and directing long-term and mid-term 
strategic plans" as separate duties and lists some of these multiple times throughout the job 
description. Reciting the 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 Petitioner has not provided any sufficient explanation of the Beneficiary's activities in the 
course of their daily routine. The actual duties themselves will reveal the true nature of the 
employment. 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 fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" executive or managerial in nature. Sections 
10l(A)(44)(A) and (B) of the Act. While the Beneficiary exercises discretion over the Petitioner's 
day-to-day operations and possess the requisite level of authority with respect to discretionary 
decision-making, the position descriptions alone are insufficient to establish that his actual duties 
would be primarily managerial or executive in nature. 
As discussed above, the record does not support the Petitioner's claim that the store managers would 
sufficiently relieve the Beneficiary from involvement in the day-to-day store operations, and we 
cannot determine, based on the inconsistencies in the job descriptions the Petitioner has presented to 
USCIS, how much time the Beneficiary would reasonably devote to qualifying managerial or 
executive duties. In light of these unresolved issues, the Petitioner has not supported its claim that 
the proffered position would be in a managerial or executive capacity. 
III. CONCLUSION 
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 of P-G-S- Inc., ID# 439433 (AAO June 28, 20 17) 
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