dismissed EB-1C Case: Retail Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-T-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 12,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an owner and manager of convenience store/gas stations, 1 seeks to permanently 
employ the Beneficiary as its administration and operations vice-president, under the first preference 
immigrant classification for multinational executives or managers. See 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 a 
managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that: (1) the Beneficiary would be employed in the United States in an 
executive capacity; and (2) the Beneficiary has been employed abroad in an executive capacity for at 
least one year in the three years preceding the filing of the petition. 
On appeal, the Petitioner asserts that the Director erred in determining that the Beneficiary would not 
be employed in an executive capacity for the U.S. Petitioner. The Petitioner also contends that it 
submitted sufficient evidence to demonstrate when the Beneficiary's qualifying employment began 
with the foreign employer and that she was employed abroad for at least one year in the three years 
preceding the filing of the petition. 2 
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. 
1 
The Texas taxable entity government website indicates that the Petitioner"s right to do business in Texas is "Forfeited.'' 
See https:l/mycpa.cpa.state.tx.us/coa/coaSearchBtn (last visited Dec. 7, 20 17). In any future filings, the Petitioner must 
provide evidence establishing that it is active and allowed to do business in Texas. 
2 
The Petitioner notes that the Beneficiary "is currently on E-2 [Treaty Investor] derivative status based on investments 
made by her spouse and her in our company in the United States.'' 
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Matter ofS-T- , Inc. 
The Form I-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 corning 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). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Petitioner states on the I-140, that it is a 14-ernployee "Retail Trade & Investment-Convenience 
Stores & Fuel Stations" business. The Petitioner owns a convenience store/gas station on 
in Texas. The foreign entity's 99 percent owner, the Petitioner's president, is the 
sole shareholder of a second incorporated convenience store/gas station on m 
Texas , and a third incorporated convenience store/gas station on in 
Texas. It appears that the second and third convenience stores/gas stations are indirectly 
affiliated with the Petitioner , through the foreign entity's majority shareholder. The Petitioner 
asserts that the Beneficiary "will continue to direct and oversee three (3) fuel station managers '' in 
her executive capacity for the Petitioner. 3 
The Act defines the term "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function 
thereof; 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) ofthe Act; 8 U.S.C. § 1101(a)(44)(B) . 
We will address both the Petitioner's description of the Beneficiary's intended duties as well as the 
Petitioner's staffing to determine whether the Petitioner has established this eligibility requirement. 
We note that when reviewing staffing levels 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 . See 
section 10l(a)(44)(C) ofthe Act. 
A. Duties 
When examining the executive or managerial capacity of a beneficiary, we look first to a petitioner 's 
description of the job duties. See 8 C.F.R. § 204.50)(5). The definition of executive capacity has 
two parts. First, the petitioner must show that the beneficiary will perform certain high-level 
responsibilities. Champion World. Inc. v. INS, 940 F.2d 1533 (Table) , 1991 WL 144470 (9th Cir. 
July 30, 1991 ). Second, the petitioner must prove that the beneficiary will be primarily engaged in 
J The Petitioner does not claim that the Beneficiary will perform duties primarily in a managerial capacity. Thus, we will 
restrict our analysis to the Beneficiary's claimed executive capacity. 
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Matter (?fS-T-, Inc. 
executive duties, as opposed to ordinary operational activities alongside the petitioner's other 
employees. See. e.g., Family Inc. v. USCJS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 
940 F.2d at 1533. 
The Petitioner initially described the Beneficiary's proposed duties in the United States without 
allocating her time amongst the various duties described. In response to the Director's request for 
evidence (RFE), the Petitioner provided essentially the same description and allocated the 
Beneficiary's time as follows (paraphrased): 
Corporate Planning, Administration and Operations 
• Plan, direct, and coordinate administrative operations in order to introduce the 
company to the lucrative fuel station markets in the United States. 20% 
• Formulate programs and policies to direct the management of our operations and 
enhance the coordination of activities such as selling, purchasing, financing, 
accounting etc. and direct the management of our operations. 5% 
• Direct the management of our offices by overseeing the work done by our 
personnel. 1 0% 
• Direct, plan and coordinate activities relating to labor and human resources issues. 
5% 
• Establish and implement policies, goals, objectives, and procedures, conferring 
with management and staff members as necessary. 5% 
• Determine staffing requirements, and interview, hire and train new employees and 
contractors and oversee those personnel processes. 5% 
Directs Business Development, Marketing, and Purchasing Activities 
• Explore business opportunities inherent to the rising demand of fuel and 
convenience store items in the United States. 10% 
• Direct, plan and coordinate purchasing activities with service providers. 5% 
• Monitor and liaison with businesses, vendors, technicians, and subcontractors to 
ensure that they efficiently and effectively provide needed services while staying 
within budgetary limits. 5% 
• Monitor and oversee the import/export activities. 5% 
Direct and Oversee Financial Activities 
• Review financial statements, sales and activity reports, and other performance 
data to measure productivity and goal achievement and to determine areas 
needing cost reduction and program improvement. 1 0% 
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Matter of S- T-, Inc. 
Corporate Governance 
• Partner with the President in his executive and management roles. 15% 
o Presenting reports to the President, replacing the President in his absences 
o Making and implementing executive decisions for the company. 
o Calling the Board of Directors for meetings, chairing the Board meetings and 
shareholders' meetings, signing the minutes; complying with and enforcing 
the decisions taken by the shareholders and Board of Directors. 
o Acting as the legal representative ofthe company. 
o Supporting the activities of the company, signing checks together with the 
President as the Treasurer of the Company, and submitting reports on 
activities to the President/Board of Directors. 
o Leading Business Alliance work. 
o Suggesting measures and actions that should be taken into account for 
effective management of the company to the shareholders and board of 
directors of the company. 
According to the above allocation of the Beneficiary's time, she will spend 50 percent of her time on 
corporate planning, administration, and operations. The Petitioner, however, includes minimal 
information on the actual daily duties that the Beneficiary will perform. For example, the 
Beneficiary will plan, direct, and coordinate administrative operations, and formulate programs and 
policies, as well as establish and implement policies, goals, objectives, and procedures. These, 
however, are broadly stated business objectives that essentially re-state portions of the definition of 
executive capacity. Merely repeating the language of the statute or regulations does not satisfy the 
Petitioner's burden of proof. 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); Avyr Assocs., Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). The Petitioner also indicates that the Beneficiary will direct the management of the 
offices by overseeing the work of its personnel and performing duties related to hiring and training 
new employees and contractors. It is not possible to ascertain from the limited information provided 
that these duties incorporate primarily executive duties rather than non-qualifying duties. 
The Beneficiary will also spend 25 percent of her time on business development, marketing, and 
purchasing activities. Although the Petitioner states that the Beneficiary will direct these 
components, the record does not include evidence that the Petitioner has a business development, 
marketing, or purchasing department, thus, it appears the Beneficiary may be responsible for actually 
performing the duties related to these departments. That is, the Beneficiary is the employee who will 
explore business opportunities, coordinate purchasing activities with service providers, and liaison 
with vendors, technicians, and subcontractors. The Petitioner does not explain how performing these 
duties is executive in nature. Similarly, the 10 percent of the Beneficiary's time allocated to 
reviewing financial statements and other reports to measure productivity and determine cost 
reduction and program improvement needs, includes a performance element. The Petitioner does 
not provide sufficient detail regarding the actual tasks that will engage the Beneficiary in carrying 
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Matter of S-T-, Inc. 
out these duties to conclude that they are primarily executive tasks rather than the routine tasks to 
operate the business. 
The Petitioner indicates that the remaining portion of the Beneficiary's time (15%) will be spent on 
corporate governance and that this involves partnering with the president in his executive and 
managerial roles. These duties involve generic tasks such as presenting reports to the president, 
making and implementing decisions, as well as performing the administrative functions of calling for 
corporate meetings, and signing the minutes and checks. The Beneficiary's status as a shareholder 
or officer does not, in and of itself~ satisfy the definition of executive capacity as set out in the Act. 
The allocation of the Beneficiary's time devoted to the U.S. Petitioner's executive duties totals 100 
percent. However, the Petitioner adds that the Beneficiary will also spend 100 percent of her time 
performing and continuing to perform "Specific Daily Duties" for both the Petitioner and the foreign 
entity. The Petitioner does not explain how the specific duties described correspond to or impact the 
Beneficiary's claimed executive duties. The specific daily duties include the following 
(paraphrased): 
• Making decisions and taking action to develop the company in the United States 
which entails working with the lawyers, accountants, tax attorneys, and other 
professionals. 10% 
• Holding meetings with the store/station managers, and the finance and accounting 
consultant and accountant in the United States and Mexico to ensure that all the 
procedures, reports, and obligations with the government are met. 5% 
• Obtaining the services of key personnel to help operate and develop the business in 
the United States and Mexico. 10% 
• Holding meetings with the president and store/station managers in Texas, and the 
general director, finance and accounting consultant, and store/station managers in 
Mexico to discuss administration and operations activities in the United States and 
abroad, including contracts with suppliers and deals with customers for goods to be 
purchased and sold, and to establish continuing relationships with suppliers and 
customers in the United States and abroad. 15% 
• Ensuring that all managers in Mexico and the United States maintain constant contact 
with the companies and customers. 10% 
• Maintaining daily contact with the general director in Mexico and the president in 
Texas to research and prospect business opportunities in other areas and other 
countries. 1 0% 
• Maintaining daily contact with the finance and accounting consultant in Mexico and 
the accountant in Texas to receive updated financial information and updates on the 
previous day's activities. 10% 
• Maintaining daily or weekly contact with the store/station managers in Mexico and in 
Texas regarding restocking items, and then setting meetings with vendors to make 
deals for purchasing items. 5% 
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Matter ofS-T-, Inc. 
• Maintaining daily contact with the general director of the parent company regarding 
administrative matters and to report progress of the firm in Mexico. 5% 
• Overseeing and maintaining agreement terms with fuel and goods suppliers in 
Mexico and Texas. 5% 
• Attending meetings with vendors in Texas to make deals for the purchase of goods 
and services; ensuring that the parent company's general director ascertains the needs 
of the parent company's customers, and resolving any problems. 15%. 
The Petitioner does not adequately ditierentiate between the Beneficiary's time spent performing 
these specific daily duties for the Petitioner and performing them tor the affiliated company in 
Mexico. The Petitioner has offered the Beneficiary full-time employment as its administration and 
operations vice-president. The addition of duties, many of which appear to require the Beneficiary's 
performance of administrative and operational activities for both the Petitioner and the foreign 
entity, also casts doubt on how much the time the Beneficiary will actually work tor the Petitioner in 
an executive capacity. 
When considering the description of the Beneficiary's specific daily duties, there is a significant 
portion of the description that is insufficiently detailed to determine what the Petitioner expects of 
the Beneficiary. For example, the Petitioner indicates that the Beneficiary is in daily or weekly 
meetings with the store/station managers, the accounting consultants, and the president. Although 
the Petitioner provides brief statements regarding the purpose of the meetings, the record is unclear 
as to the Beneficiary's role in each meeting. The descriptions provided do not explain how the 
Beneficiary's discussions of administrative, operational, or financial issues are executive duties. The 
record does not include supporting evidence of the Beneficiary's interactions with other employees 
or outside contractors sufficient to determine whether the actions are primarily executive, 
supervisory, or are non-qualifying duties. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in an executive capacity within the 
meaning of section 101 (a)( 44) of the Act. By statute, eligibility tor this classification requires that 
the duties of a position be "primarily" executive in nature. Section 10 I (A)( 44 )(B) of the Act. 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, the position descriptions 
alone are insufficient to establish that her actual duties would be primarily executive in nature. 
Without additional detailed information on the Beneficiary's proposed position, the Petitioner has 
not established the Beneficiary's actual role within the U.S. company and has not established that 
she will perform primarily in an executive capacity. 
B. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed executive capacity of a beneficiary, including the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
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Matter of S-T-. Inc. 
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. 
The Petitioner's organizational chart depicts the Beneficiary reporting to the president and shows the 
Petitioner's convenience store/gas station and the two affiliated convenience 
stores/gas stations and subordinate to her position. Each 
convenience store/gas station has a manager. The organizational chart shows that 
and employ one cashier in addition to the manager. is shown on the 
organizational chart as employing several staff in the deli department, one cashier, and two other 
workers. The Petitioner must establish that all eligibility requirements for the immigration benetit 
have been satisfied from the time of the tiling and continuing through adjudication. 8 C.F.R. 
§ 103.2(b)(1). As the petition was filed in August 2016, the Petitioner must establish eligibility at 
that time and continuing through adjudication. 
The Petitioner 's third quarter state employer ' s quarterly report for 2016, the pertinent report, 
· indicates four individuals 4 worked for the Petitioner this quarter. The names listed include the 
Beneficiary, the president , a manager, and a cashier shown on the Petitioner ' s organizational chart. 
The 2016 third quarter state employer's quarterly report for the identifies only the 
individual working in the "manager" position on the employer's report. The 
state employer's quarterly report indicates six individuals were employed in July 2016, eight 
individuals were employed in August 2016, and five individuals were employed in September 2016. 
Only four of the names listed correspond to the Petitioner's initial organizational chart and 
correspond to only one individual listed on the revised organizational chart. The Petitioner's brief 
description of job duties for the employees identifies a manager, a cashier , a 
custodian, and two cooks/servers. 
The record does not include evidence establishing the hours of operations of the three convenience 
stores/gas stations. The website states: "Hours may fluctuate. For detailed hours of 
operation, please contact the store directly." See https://www 
(last visited Nov. 15, 20 17). The does not have an active 
website and the record does not include evidence of its hours. The also does not 
have an active website but appears to be open 24 hours. The hours of operation information is 
important so that we may evaluate whether the Petitioner employs sufficient personnel to relieve the 
Beneficiary from performing the routine operational and administrative tasks of the petitioning 
organization and that the personnel employed include individuals realistically employed in 
management positions. 
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 
4 
The names attached to the third quarter report include five individuals. One individual is not listed on the Petitioner's 
initial organizational chart but is listed on the revised organizational chart as a cashier, replacing the initial cashier. 
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Matter ~(S-T-. Inc. 
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 ofthe organization." !d. 
The Petitioner has not established that the Beneficiary's subordinates manage the organization, 
rather than perform the operational and administrative tasks necessary to run the convenience 
stores/gas stations. When the petition was filed in this matter, the Petitioner employed four 
individuals, including the Beneficiary, at the The record does not include an 
explanation of how the subordinate "manager" managed the operation rather than performing 
operational and administrative tasks alongside the one cashier. 
Similarly, the affiliated employed only one individual when the petition was filed. 
The Petitioner does not explain or offer evidence of how this one employee "managed'' the business 
rather than performing the day-to-day tasks of keeping the operation open. 
Finally, the Petitioner has not provided sufficient information regarding the staff employed at the 
third affiliated convenience store/gas station. Although it appears that the 
employed eight individuals in August 2016 when the petition was tiled, the record does not identify 
the positions of those employees and the times they work. The record does not establish that the 
business will be sufficiently staffed on a 24-hour basis so that the one "manager" will perform 
supervisory or managerial duties rather than operational tasks necessary to operate the business. 
The lack of evidence regarding the staffing precludes a determination that the Petitioner had 
sufficient staff to perform the duties of the business and relieve the Beneficiary from performing 
operational and administrative duties when the petition was tiled. As the three convenience 
stores/gas stations appear understaffed it is also more likely than not that the Beneficiary will 
perform operational and administrative tasks, such as ordering supplies, meeting with vendors and 
technicians, and reviewing daily activities and inventory. The record does not establish that she will 
primarily direct the management of the organization or otherwise perform in an executive capacity. 
We have considered the reasonable needs of the organization in light of the overall purpose and 
stage of development of the organization. To establish that the reasonable needs of the organization 
justify a beneficiary's job duties, a petitioner must specifically articulate why those needs are 
reasonable in light of its overall purpose and stage of development. The Petitioner is a six-year-old 
company with one convenience store/gas station and two affiliated convenience stores/gas stations. 
The three convenience stores/gas stations employed 13 statl when the petition was filed. The record 
does not include credible evidence establishing that the three convenience stores/gas stations could 
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Matter ojS-T- , Inc. 
operate with the staff in place without the Beneficiary primarily performing non-qualifying duties. 
The Petitioner has not explained how the reasonable needs of the petitioning enterprise justify the 
Beneficiary's performance of non-executive duties. A petitioner's unsupported statements are of 
very limited weight and normally will be insufficient to carry its burden of proof See Matter ol 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Furthermore, the reasonable needs ofthe Petitioner 
will not supersede the requirement that the Beneficiary must be "primarily" employed in a 
managerial or executive capacity, spending the majority of his or her time on non-qualifying duties. 
See sections 10l(a)(44)(A) and (B) of the Act. The Petitioner has not established that the proposed 
position is an executive position as defined by the Act; thus the Petitioner has not overcome the 
Director's determination on this issue. 
III. EMPLOYMENT ABROAD 
The Director also questioned the Beneficiary's managerial or executive employment for the foreign 
entity in the three years preceding 
the filing of the petition. The Director noted that U.S. Citizenship 
and Immigration Services' records showed that on July 25, 2011, and October 23, 2012, the foreign 
U.S. Consulate in processed visa applications for the Beneficiary. On both occasions, 
the Beneficiary indicated on the visa applications that her primary occupation was "Homemaker.' ' 
The Director pointed out that this information conflicted with the Petitioner's claim that the 
Beneficiary has been and is serving as the foreign entity's vice-president, administration and 
operations, since January 2012. 5 In response to the Director's RFE on this issue, the Petitioner 
claimed that the occupational designation of "Homemaker" on the October 2012 visa application 
was due to an oversight. The Director noted that this explanation was not persuasive and stated that 
it did not appear that the Beneficiary was employed in a qualifying executive capacity for the foreign 
entity as of March 2011. 
The petition was filed in August 2016. Accordingly, the Petitioner must establish that the 
Beneficiary was employed in a qualifying capacity for the foreign entity for one continuous year 
between August 2013 and August 2016. The Petitioner asserts that the Beneficiary has provided her 
executive level services to both the parent 
and subsidiary companies in the United States and Mexico 
and that she travels frequently between the two countries. 
In response to the Director 's RFE, the Petitioner provided partial information regarding the 
Beneficiary ' s entry and departures from the United States to establish that the Beneficiary traveled 
frequently between the United States and Mexico. This information, however, does not establish the 
time period the Beneficiary was in Mexico where she claimed to perform work in a qualifying 
capacity for the foreign entity. The Petitioner has not provided complete passports demonstrating 
the time the Beneficiary spent in Mexico for the applicable period. 6 The Petitioner also submitted 
5 The Petitioner also indicates that the Beneficiary has been a shareholder of the foreign entity since 2003 , and asserts 
that as a shareholder she has always held an executive position with the foreign entity since its inception. Ownership , 
however , is insufficient to satisfy the Act ' s definition of executive capacity. 
6 
Government record s show that the Beneficiary spent approximately 22 days outside the United States from August 
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Matter of S-T-, Inc. 
two water bills covering a two-month period in 2015 and 2017 as evidence that the Beneficiary 
maintained a residence in Mexico. However, this information is insufficient to establish that the 
Beneficiary maintained a year-round residence in Mexico, or more importantly that she worked for 
the foreign entity during a particular time period. The record also does not include evidence that the 
Beneficiary was paid for her work for the foreign entity or that she was otherwise compensated for 
her employment. 
The Petitioner has not submitted probative evidence to establish that the Beneficiary has been 
employed outside the United States for at least one year in a managerial or executive capacity, with a 
qualifying organization within the three years preceding the filing of the petition. 8 C.F.R. 
§ 204.50)(3). 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary will be 
employed in a managerial or executive capacity for the Petitioner, and has not established that the 
Beneficiary was employed in a qualifying capacity for one of the three years preceding the filing of 
the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-T-. Inc., ID# 776649 (AAO Dec. 12,201 7) 
2013 to the end of the 2013 year, approximately I 04 days outside the United States in 2014, approximately 92 days 
outside the United States in 2015, and approximately 88 days outside the United States in 2016 up to the filing date of 
the petition. 
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