dismissed EB-1C Case: Staffing Consulting

MATTER OF A-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 5, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a staffing consultant focused on providing janitm;ial and maintenance staff to its clients, 
seeks to permanently employ the Beneficiary as its president and CEO 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 tran~fer a qualified foreign employee to the United States to work in an 
executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that: (1) the Beneficiary would be employed in the United States in a managerial 
capacity; (2) the Beneficiary was employed abroad in a managerial capacity; and (3) the Petitioner has 
the ability to pay the Beneficiary's proffered wage. 
On appeal, the Petitioner submits a brief disputing all three findings as grounds for denial. The 
Petitioner contends that the Director did not properly assess the previously provided job descriptions 
and corresponding percentage breakdowns and therefore reached an incorrect conclusion as to the 
amount of time the Beneficiary devoted and would devote to non-managerial job duties. With 
regard to the issue of ability to pay, the Petitioner states that.the Beneticiary made personal loans to 
the company as the need arose and that such loans, once made, became company assets. 
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 who 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. A labor certification is not 
required for this classification. 
Matter of A-, Inc. 
The Form I-140 must be accompanied by 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. 8 C.F.R. § 204.50)(3). 
II. EMPLOYMENT IN MANAGERIAL OR EXECUTIVE CAPACITY 
As indicated above, the Director determined that the Petitioner did not establish that the Beneficiary 
has been and would be employed in a managerial capacity. 
The term "managerial capacity" is defined 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 directJy 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 10l(a)(44)(A) of the 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": 
(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; 
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Matter of A-, Inc. 
(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. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B). 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. See section 
101(a)(44)(C) ofthe Act. 
A. U.S. Employment 
The first issue we will address is whether the Petitioner provided sufficient evidence to establish that 
it was able to employ the Beneficiary in a managerial or executive capacity. 
1. Duties 
When examining whether a Beneficiary will be employed in a managerial or executive capacity, we 
will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Based on 
the statutory definition of managerial capacity, the Petitioner must first show that the Beneficiary 
will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th 
Cir. 1991) (unpublished table decision). Second, 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. 
In a supporting statement, the Petitioner stated that the Beneficiary's U.S. position involves directing 
key company components and functions, such as "supervising the general, commercial and 
operations manager," as well as directing and coordinating marketing activities and business 
development, overseeing and supervising eight employees, controlling company finances and 
financial goals, and making personnel decisions. In a separate list of job duties, the Petitioner stated 
that the Beneficiary's duties would include making decisions on "officers and management 
promotions," "train[ing] human resources for upper level management," making hiring decisions, 
allocating an expense budget and monitoring daily cash flow, and visiting and interacting directly 
with customers and opening new accounts. 
The Petitioner did not expand on the specific types of decisions regarding "officers and management 
promotions" that the Beneficiary was expected to make within the scheme of its staff consulting 
business. The Petitioner also did not explain how personally training employees to attain "upper 
level management" or directly interacting 
1
With and selling services to clients can be deemed as 
managerial job duties. 
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Matter of A-, Inc. 
The Director issued a notice of intent to deny (NOID), stating that the evidence submitted at the time 
of filing did not establish that the Beneficiary would be employed in a managerial capacity. 
Accordingly, the Director instructed the Petitioner to list the Beneficiary's specific daily job duties 
and the percentage of time the Beneficiary would allocate to each individual duty. The Director 
advised the Petitioner against grouping tasks into categories. 
In response, the Petitioner offered a statement from the Beneficiary in which he provided his 
employment history and stated that he has considerable experience in running a consulting business 
whose focus is on marketing, operations, and human resources to achieve staffing solutions and 
address operational inefficiencies. The Beneficiary discussed the circumstances that led to a shift in 
the Petitioner's business focus from "pure consulting[] to include services when needed by ... 
clients," claiming that the Petitioner continues to pursue its original goal of global business 
consulting. The Petitioner also provided a weekly schedule with a percentage breakdown identifying 
the Beneficiary's daily tasks and their respective time allocations. The breakdown indicates that 
approximately 58% of the Beneficiary's time on a weekly basis would be allocated to operational 
tasks, such as responding to emails, faxes, and phone calls, interacting daily with existing clients 
through client visits and conducting seminars or training sessions, and seeking out new clients. This 
breakdown does not establish that the Beneficiary has and would continue to allocate his time 
primarily to performing managerial tasks, despite the Beneficiary's authority over personnel and 
business matters. 
In denying the petition, the Director determined that the Petitioner's description of the proposed job 
duties and assigned time allocations indicate that at least 80% of the Beneficiary's time would be 
allocated to tasks that are outside the realm of managerial capacity. 
On appeal, the Petitioner challenges the Director's quantitative assessment, arguing that the Director 
did not properly consider the proportion of each time allocation within the scope of a full work 
week. Although we agree with the Petitioner's criticism of the Director's analysis concerning each 
task's time allocation with respect to the overall work week, based on our own analysis of the 
evidence, we find that the Director's overall conclusion is accurate to the extent that the Beneficiary 
would allocate more time to non-managerial than managerial job duties. The Petitioner also 
contends that the Director failed to consider the various tasks as "part of a larger managerial 
responsibility," claiming that tasks such as visiting clients "are basically marketing and human 
relations in nature" and further asserting that the end goal of such visits is to establish new ways the 
Petitioner can meet customer needs. While the Petitioner's argument urges us to focus on the 
Beneficiary's broader responsibility, which it claims is managerial in nature, we find that such 
reasoning is faulty and detracts from a more comprehensive and detailed understanding of the 
Beneficiary's actual daily tasks. 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
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Matter of A-, Inc. 
Here, the Petitioner seeks a more general focus on broader job responsibilities, thereby overlooking 
the value that both case law and the regulations place on actual daily tasks. We note that the actual 
duties themselves reveal the true nature of the employment. !d.; see also 8 C.F.R. § 204.5(j)(5). 
While there is little doubt that having the Beneficiary actually perform certain marketing and sales 
tasks will enhance the Petitioner's business and increase its client base, we cannot overlook the 
operational nature of these tasks. While no beneficiary is required to allocate 1 00% of his time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to the proposed position. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) ofthe Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology Int '!, 19 I&N Dec. 593, 604 (Comm'r 
1988). In this matter, we find that the majority of the Beneficiary's time would be allocated to 
performing operational tasks. Therefore, despite his level of discretionary authority over the 
Petitioner's business and personnel, we find that the job description does not establish that the 
Beneficiary would primarily carry out tasks of a managerial nature. 
Despite the Petitioner's recent shift in focusing on the Beneficiary's proposed employment in a 
managerial capacity, we acknowledge the Petitioner's original supporting statement where it claimed 
that the Beneficiary would be employed in an executive capacity. However, based on the above 
analysis of the percentage breakdown that was provided in response to the NOID and our finding 
that the Beneficiary would allocate the majority of his time to operational tasks, we similarly cannot 
conclude that the Beneficiary would be employed in an executive capacity. 
2. Staffing 
Beyond the required description of the job duties, we review the· totality of the record when 
examining the claimed managerial capacity of a beneficiary, 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 an understanding of a beneficiary's actual duties and role in a business. 
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. 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. Section 
101(a)(44)(A)(iii) of the Act. While a function manager primarily focuses on managing an essential 
function rather than overseeing a subordinate staff, the Petitioner must nevertheless establish that the 
Beneficiary would not be required to allocate his time primarily to operational and administrative 
5 
Matter of A-, Inc. 
tasks. Inherent to both a function and a personnel manager is that the employing entity has the 
necessary support staff to relieve the Beneficiary from having to primarily perform the 
organization's operational and administrative functions. 
Recognizing that the Petitioner's original support statement focused on the Beneficiary's proposed 
position in an executive capacity, we also note that 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. 
We further note that a company's size may not be the only factor in denying a visa petition for 
classification as a multinational manager or executive. See section 101(a)(44)(C) of the Act. 
However, it is appropriate for USCIS to consider the size of the petitioning company in conjunction 
with other relevant factors, such as the absence of employees who would perform the non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and 
continuous manner. See, e.g., Family Inc., 469 F.3d 1313; Systronics Corp. v. INS, 153 F. Supp. 2d 
7, 15 (D.D.C. 2001). 
In the present matter, the Petitioner claimed to have eight employees at the time of filing but 
1 submitted an organizational chart that does not corroborate this claim, as it depicts the Beneficiary as 
president with eight other unnamed employees filling various positions for a total of nine employees. 
The chart shows the general director as the Beneficiary's direct subordinate, followed by a 
commercial director and the operations director as subordinates ofthe general manager. The next 
tier shows a secretary with no clear indication as to whether she answers to the general director or 
the general director's subordinates. The following tier depicts a logistics coordinator, whose 
placement in the hierarchy i_s directly below that of the secretary, despite the indication that this 
position may be subordinate to the operations director. The logistics coordinator is shown as 
overseeing one foreman, with a second foreman position shown as "pending"; the bottom-most tier 
shows two account executives whose position placement directly below the foreman indicates that 
the latter may be their direct superior. The chart is accompanied by a corresponding employee list to 
which the Petitioner's general manager attested with his signature, stating that the list retlected 
employees that the Petitioner had as of June 11, 2010. Given that the Petitioner claimed a total of 
eight employees in the petition itself and the fact that the employee list preceded the date of filing by 
approximately 18 months, it is unclear whether the initially submitted organizational chart and 
corresponding employee list accurately depicted the Petitioner's organization at the time of filing. 
6 
Matter of A-, Inc. 
In the NOID, the Petitioner was instructed to provide its organizational chart accompanied by brief 
job descriptions of the positions included therein and to indicate whether the employees named in 
the chart work on a full- or part-time basis. The Petitioner was also asked to submit IRS Form W -2s 
for its employees for the relevant years and to provide separate evidence if contract labor was used 
to show that the Petitioner paid for use of such labor. 
In response to the NOID, the Petitioner provided an organizational chart with the dates "2011-2012" 
below the heading to indicate that the chart was intended to account for this time span. 1 Despite 
some overlap in four of the positions, which appear to be common to the original and newly 
submitted charts, the two charts are largely at odds with one another; with the exception of the 
Beneficiary and the Petitioner's general manager, there is also no overlap between the originally 
provided employee list and the employees listed in the newly submitted organizational chart. 
Further, unlike the original chart, which shows the Beneficiary at the top of the hierarchy, the new 
chart depicts "Shareholders" at the top of the hierarchy, indicating that the Petitioner's three 
shareholders together, rather than the Beneficiary alone, are the presiding authority. The Petitioner 
did not provide documentation explaining how the shareholders run the organization, nor did the 
Beneficiary's job description indicate that the Beneficiary would allocate any time to conferring with 
the other two shareholders, who purportedly serve with the Beneficiary as joint shareholders. 
We also note that the new chart shows a financial consultant, an attorney, and a general manager as 
the Beneficiary's direct subordinates in his capacity as "President/CEO" of the Petitioner. The new 
chart does not include either a commercial or an operations director and shows the general manager 
as overseeing one marketing/account executive manager, an office manager/secretary, a human 
resources assistant, and a field crew comprised of four employees. This is inconsistent with the prior 
chart, which shows a commercial director, a secretary, and an operations director as the direct 
subordinates of the general director, who was depicted as the Beneficiary's direct subordinate. 
Further, while the original chart included two account executives, neither included a marketing or 
managing component as part of the position title, thus suggesting that the original account executive 
positions were not synonymous with the single position of "Marketing/ Account Executive 
Manager," which is part of the newly submitted organizational chart. Likewise, the original chart 
did not include a human resources assistant or a field crew and neither chart is consistent with the 
petition's claim that the Petitioner had eight employees at the time of filing. The Petitioner must 
resolve these inconsistencies in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). While the Petitioner was 
instructed to provide wage evidence showing who received wages during the relevant time period, 
the Petitioner neglected to comply with this request and thus did not resolve the inconsistencies 
catalogued herein. 
1 Although the Petitioner provided organizational charts for the years that followed the filing of the instant petition, such 
evidence does not address the issue of the Petitioner's eligibility at the time of filing and therefore will not be discussed 
in this decision. 
.., 
Matter of A-, Inc. 
The Petitioner also neglected to provide the requested employee job descriptions or identify its 
employees as full- or part-time workers. We note that failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ 103.2(b)(l4). Furthermore, the Petitioner's federal tax return for 2011, which was provided with 
the NOID response, shows that the Petitioner paid a total of $205,449 in employee wages and 
salaries. Based on a self-generated breakdown of the Beneficiary's yearly salaries from 2011 
through July 2016, $150,000 of the 2011 employee wages and salaries was allocated for the 
Beneficiary's salary, therefore leaving a total of less than $56,000 to pay the salaries and wages of 
the remaining eight employees who were listed in the Petitioner's organizational chart. 
Furthermore, in Schedule K, No. 15, of the 2011 tax return, the Petitioner expressly denied having 
issued any Forms 1099, thereby indicating that no wages were paid outside the salary and wage 
information that was included on the first page of the 2011 tax return. This information gives us 
cause to doubt the claims made in the Petitioner's organizational charts with respect to the number of 
employees it had at the time of filing, which leads us to further question the Petitioner's ability to 
relieve the Beneficiary from having to primarily carry out the Petitioner's non-managerial functions. 
If US CIS finds reason to believe that an assertion stated in the petition is not true, USCIS may reject 
that assertion. See, e.g, Section 204(b) ofthe Act, 8 U.S.C. § 1154(b); Anetekhai v. INS, 876 F.2d 
1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); 
Systronics, 153 F. Supp. 2d at 15. l 
Given the above cited inconsistencies and lack of sufficient evidence showing that the Petitioner 
paid wages to employees and/or contractors, we are unable to determine which positions were filled 
at the time of filing and whether the Petitioner had the ability to employ the Beneficiary in a position 
where he would allocate the majority of his time to managerial tasks. Further, despite the fact that 
both of the Petitioner's organizational charts depict the Beneficiary at a top position within the 
organization, the lack of information about the job duties assigned to the support staff precludes us 
from gaining a meaningful understanding of how the Petitioner planned to relieve the Beneficiary 
from having to primarily perform non-managerial tasks. At the time of filing, the Petitioner 
identified itself as a business consulting firm, yet none of the information in the submitted 
organizational charts indicates that the Petitioner had any consultants to provide services of that 
nature. Further, while the Petitioner previously explained that it shifted its business direction to 
accommodate its clients' janitorial and staffing needs, it is unclear who marketed and sold the 
Petitioner's services and who sought out the workers to actually perform the janitorial, grounds 
keeping, and any other services the Petitioner's clients may have needed. The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. 369,376 (AAO 2010). 
In sum, the record lacks evidence to establish that the Petitioner had the staffing capability to employ 
the Beneficiary in a position where his primary focus would be to oversee a managerial, 
professional, or supervisory staff who would relieve the Beneficiary from having to allocate his time 
primarily to the operational and administrative tasks of the daily operation. Therefore we find that· 
the Petitioner has not established that it would employ the Beneficiary in a managerial capacity. 
8 
Matter of A-, Inc. 
Likewise, the numerous discrepancies and lack of evidence also preclude a determination that the 
Beneficiary would be employed in a position where his primary focus would be directing the 
management of the organization. Therefore, the evidence submitted also does not establish that the 
Beneficiary would be employed in an executive capacity. 
B. Employment Abroad 
Next, we will examine the record to determine whether the Petitioner provided sufficient evidence to 
establish that the Beneficiary was employed abroad in a managerial capacity. 
1. Duties 
Similar to the analysis of the Beneficiary's proposed employment, we look to the Beneficiary's 
assigned job duties to determine whether he was employed abroad in a managerial capacity. 
In the initial supporting statement, the Petitioner stated that the foreign entity operated as a consulting 
business whose focus was "developing strategies to help clients get organized, set goals, become 
profitable and grow within a set time frame." The Petitioner provided a job description, which stated 
that the Beneficiary's employment with the foreign entity included the following components: 
(1) overseeing daily operations and directing management of the organization; (2) developing strategies 
and policies concerning the management, marketing, sales, and human resources of the organization; 
(3) hiring, firing, and overseeing upper-level management; (4) creating a training program for human 
resources; (5) making budget decisions; (6) overseeing the company's financial transactions, payroll, 
accounts payable and receivable, and cash flow; (7) signing contracts, obtaining professional services, 
and overseeing subcontracted service providers; (8) creating a plan for business expansion; 
(9) providing an annual report to the board of directors; and (1 0) attracting new clients. However, the 
Petitioner neglected to explain what types of tasks were involved in overseeing the daily operation or 
directing the management of the company, expand on the specific types of policies the Beneficiary 
developed or specifY which positions the term "upper[-]level management" included, and state what 
steps the Beneficiary took to ensure expansion of the foreign entity's services into new markets. The 
Petitioner also did not establish that the Beneficiary's role in client development was managerial, rather 
than operational to the extent that it was associated with marketing and selling the foreign entity's 
services. 
In the NOID, the Petitioner was instructed to provide a statement from the foreign entity describing the 
Beneficiary's daily job duties and the time allocations assigned to each duty. The Petitioner's response 
included a statement from the Beneficiary claiming that he was "in charge of all [ m ]arketing, 
[ c ]onsulting, and [ a]dministrative operations" in a company whose business objective was to "provide 
problem-solving consulting services in the areas of marketing, training in sales, customer service and 
human resources, and motivational and self-growth seminars." The Petitioner also provided a letter 
from one of the foreign entity's shareholders. The letter contained a job description with a percentage 
breakdown indicating that 5% of the Beneficiary's time was spent having monthly meetings with 
members of the board to review the foreign entity's marketing efforts, service contracts, and financial 
9 
Matter of A-, Inc. 
status. We note, however, that this intermittent job duty, which the Beneficiary performed on a monthly 
basis, does not contribute to an understanding of what tasks the Beneficiary performed daily and, 
therefore, does not address the Director's concerns. 
The shareholder's letter also indicates that 50% of the Beneficiary's time was spent setting and planning 
for the implementation of marketing goals by directing weekly meetings with a marketing staff for 15% 
of the time, providing marketing training and evaluating performance of marketing personnel for 7% of 
the time, reviewing "source material" and attending meetings and social events to generate business 
leads for 8% of the time, reviewing reports created by the marketing staff for 10% of the time, and 
negotiating contracts for consulting and staffing services for the remaining 10% of the time. The 
Petitioner did not establish that such staff was comprised of managerial, professional, or supervisory 
employees, nor did it establish that training newly hired marketing personnel and overseeing the 
performance of existing marketing personnel were duties that fit the criteria of managerial capacity. See 
section 101(a)(44)(A)(ii) of the Act. Likewise, the Beneficiary's participatory role in marketing the 
foreign entity's services at various events and negotiating contracts are indicative of operational tasks 
rather than tasks of a managerial nature. 
The shareholder's letter also addresses the Beneficiary's role in directing the implementation of 
consulting and staffing services. However, we similarly find that conducting seminars and providing 
"specialized consulting advise to clients," which consumed another 15% of the Beneficiary's time, 
cannot be deemed as anything other than providing a service to the con!Pany's clients. As previously 
stated, an employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See. e.g, 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); Church Scientology Int'l, 19 I&N Dec. at .604. Further, while the 
employment letter stated that the implementation of consulting and staffing services involved 
overseeing the "supervision of staffing services" for 5% of the time, it is unclear what specific activity 
this broadly stated job duty actually involved. The letter included equally vague language when 
describing the Beneficiary's role in directing the company's administrative operations, which was said 
to include developing personnel policies, establishing a budget, overseeing company finances, and 
resolving operational issues-. 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 letter also did not specify any actual policies that the Beneficiary developed or 
identify any processes the Beneficiary used to establish a company budget and monitor finances such 
that would provide an explanation of the Beneficiary's activities in the course of his daily routine. As 
stated earlier in this discussion, the actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd., 724 F. Supp. at 1108. 
In denying the petition, the Director found that the Beneficiary's employment was comprised of 
numerous operational tasks, which the Director specifically listed prior to concluding that the 
Beneficiary did not allocate his time to primarily managerial job duties. , -
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Matter of A-, Inc. 
On appeal, the Petitioner poses an argument similar to the one put forth in its discussion of the 
Beneficiary's proposed employment. Namely, the Petitioner again asks that we focus on the 
Beneficiary's broader responsibilities and to consider the "sub-tasks . . . as logical and critical 
components of the managerial function of goal-setting, planning, and implementation." As we stated 
previously, such reasoning detracts from a more comprehensive and detailed understanding of the 
Beneficiary's actual daily tasks. While the Petitioner is correct in indicating that no individual task by 
itself could define a position as being non-managerial where the task does not consume the majority of 
the Beneficiary's time, our conclusion is not so singularly focused. Rather, we have conducted a review 
of the Beneficiary's job description within the scope of what was claimed to be the business purpose of 
the foreign entity during the time of the Beneficiary's employment and we find that various deficiencies 
in the job description preclude us from affirmatively finding that the Beneficiary was employed abroad 
in a managerial capacity. 
Even if, arguendo, we were to acquiesce to the Petitioner's argument that the Director mischaracterized 
one of the Beneficiary's job duties as non-managerial, our finding is not solely based on the job duties 
that the Director found to be non-managerial. Rather, we also pointed to numerous components that we 
found to be lacking in specificity, thereby precluding us from gaining a meaningful understanding of the 
underlying task that the Beneficiary performed. In addition to the specific tasks that we affirmatively 
found to be non-managerial, several of the Beneficiary's job duties remain unknown because portions 
of the job description were too vague to allow us to understand precisely what action was undertaken by 
the Beneficiary within the scope of a start-up entity that was claimed to have been heavily focused on 
providing consulting services. Without a meaningful understanding of the specific tasks the Beneficiary 
performed daily during his brief period of employment with a relatively new entity, we cannot conclude 
that the Beneficiary was employed in a managerial capacity where his primary focus was managing the 
operation by overseeing a staff of managerial, professional, or supervisory employees. 
The same deficiencies that preclude us from finding that the Beneficiary was employed abroad in a 
managerial capacity similarly preclude the finding that the Beneficiary was employed in an executive 
capacity, where the duties performed must focus primarily on directing the management of the 
organization by using discretionary authority to set the organization's goals and policies. 
2. Staff 
Finally, aside from considering the Beneficiary's job duties with his employer abroad, we looked for 
evidence regarding the foreign company's organizational structure, the employees that comprised 
that structure at the time of the Beneficiary's employment, information about their respective job 
duties, and the likelihood that the foreign organization had the capacity to relieve the Beneficiary 
from having to allocate his time primarily to that entity's operational duties. 
Although the Petitioner responded to the NOID by providing the foreign entity's organizational 
chart, the positions listed in the chart were not accompanied by job descriptions establishing what 
each employee did or explaining how each employee helped to relieve the Beneficiary from having 
to carry out the organization's daily operational tasks. While the Petitioner's original submissions 
II 
Matter of A-, Inc. 
included the foreign entity's payroll, the list of employees was reflective of the foreign entity's staff 
as of May 2010 rather than July 2005 when the Beneficiary's employment with the foreign entity 
first started. We further note that the foreign entity's organizational chart contained only position 
titles and did not list any employee names, thereby leading us to question which of the positions 
were actually filled at the time of the Beneficiary's employment. Based on evidence in the record, 
the foreign entity was established in July 2005 and was therefore a new organization when the 
Beneficiary's employment commenced. As such, it stands to reason that the positions within that 
entity may not have been filled immediately at the Beneficiary's start date, thus indicating that the 
foreign entity was not fully staffed until sometime after July 2005. Without an understanding of 
precisely whom the foreign entity employed and the job duties performed by supporting employees 
at the time of the Beneficiary's employment, we are unable to determine how or whether the foreign 
entity had the capacity to relieve the Beneficiary from having to allocate his time primarily to 
performing non-managerial job duties. 
: In addition, the lack of sufficient evidence regarding the foreign entity's support staff at the time of 
the Beneficiary's employment leads us to further question the validity of the job description offered 
in the foreign entity's NOID response statement. The job description contained repeated references 
to a support staff, whose existence at the time of the Beneficiary's employment the Petitioner did not 
substantiate through the submission of corroborating evidence. As stated earlier, the Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N Dec. at 
376. 
In light of the numerous deficiencies described above, we cannot conclude that the Beneficiary was 
employed abroad in a managerial capacity. Further, to the extent that the requirements for executive 
capacity also rely on the existence of a support staff to carry out the organization's daily operational 
tasks so that the Beneficiary can allocate his time primarily to organizational policies and directing 
the management of the organization, we are unable to conclude that the foreign entity's staff was 
sufficient to support the Beneficiary in an executive capacity during his employment abroad. 
III. ABILITY TO PAY 
Next, we will address the Director's finding that the Petitioner did not establish, as required, that it 
has the ability to pay the Beneficiary's proffered wage. The Petitioner may satisfy this requirement 
by submitting evidence in the form of copies of annual reports, federal tax returns, or audited 
financial statements and it)must demonstrate this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
In the present matter, the Petitioner filed the Form I-140 in December 2011, claiming that the 
Beneficiary's proffered wage would be $182,000 per year. Although the record contains the 
Petitioner's federal tax returns for years prior to and including the date the petition was filed, there 
are anomalies in the 2011 tax return that cause us to question its validity. Namely, in the course of 
our review of the record, we compared Schedule L of the Petitioner's 2010 tax return with Schedule 
L of the 2011 tax return, keeping in mind that the beginning of the tax year column for 2011 should 
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Matter of A-, Inc. 
match the end of tax year column from 2010. We found that these two columns do not match; while 
the end of tax year column in the 2010 tax return shows entries in rows 1, 15, 16, 25, and 28 
representing totals for cash, assets, accounts payable, retained earnings, and total liabilities, 
respectively, the beginning of the tax year column for 2011 is entirely empty, showing no entries at 
all. It is unclear whether the IRS accepted and processed the 2011 tax return with this 
irregularity. Further, as previously noted, the Petitioner's 2011 tax return states that no IRS Forms 
1099 were issued in 2011, despite the fact that it was holding itself out as a consulting/staffing 
business at the time of filing. Given these anomalies, the submitted documents do' not establish the 
Petitioner's ability to pay the Beneficiary's proffered wage as of December 2011 when the petition 
was filed. 
IV. ONE YEAR OF EMPLOYMENT ABROAD 
Finally, while not addressed in 
the Director's decision and not a basis for our decision in this matter, 
evidence that is outside the record indicates that the Beneficiary does not have the requisite 
employment with the Petitioner's affiliate in Guatemala. In its supporting statement, the Petitioner 
claimed that its foreign affiliate, , "was formed in 1999 and immediately began 
operating as a business consulting firm" and that prior to coming to the United States in 2007 the 
Beneficiary "served as the founder and President" of that entity. The Petitioner's initial claim 
regarding the foreign entity's date of formation was contradicted by the Beneficiary's own NOID 
response statement in which he claimed to have formed the foreign entity with his two brothers in 
2005, a claim that was corroborated by two translated documents titled "Proof of Registration and 
modification to the unified Tax Registration," which show the foreign entity's date ofregistration as 
·July 18, 2005. In a separate translated certification document, the foreign entity was said to have 
registered under its commercial name, on June 10, 2005. Thus, neither the registration 
documents, nor the Beneficiary's own claim reflects a date of\formation in 1999. As previously 
stated, the Petitioner must resolve any inconsistencies in the record with independent, objective 
evidence pointing to where the truth lies. Ho, 19 I&N Dec. at 591-92. 
Aside from the above noted discrepancies, the period ofthe Beneficiary's employment with 
comes into question based on evidence that is outside the record and which concerns the 
Beneficiary's numerous extended stays in the United States in various nonimmigrant classifications 
prior to having attained his one year of employment with the affiliate entity. Given the above claims 
and evidence indicating that the foreign affiliate was not established until July 2005, in order to 
attain one year of employment with that entity, the Beneficiary would have to have worked there 
until July 2006. However, the evidence outside the record indicates that the Beneficiary was 
admitted to the United States as a B-2 nonimmigrant on May 10, 2006, and remained in the United 
States until August 3, 2006. The same evidence shows that the Beneficiary was again admitted to 
the United States on August 17, 2006, with permission to remain until February 20, 2007. The 
Beneficiary sought and was granted an extension of his B-2 nonimmigrant status from February 16, 
2007, to August 15, 2007, and on August 16, 2007, the Petitioner filed a Form I-129 petition on the 
Beneficiary's behalf seeking to classify him as an L-1 intracompany transferee. That petition was 
also approved and the Beneficiary changed his status to that of an L-1 nonimmigrant with a validity 
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Matter of A-, Inc. 
period from August 24, 2007, to August 16, 2010. Thus, while the Beneficiary's employment in the 
United States may not have commenced until August 2007, his period of employment abroad, which 
allegedly started in July 2005, was interrupted by his numerous extended stays in the United States. 
While the information pertaining to the Beneficiary's arrivals and departures is outside the instant 
record and therefore cannot serve as a basis for our current decision, we note that the Petitioner 
would have to address this adverse information in any future filings where the Beneficiary's period 
of employment abroad is a basis for eligibility. 
V. CONCLUSION 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary was 
employed abroad or that he would be employed in the United States in a managerial or executive 
capacity. The Petitioner also has not established that it has the ability to pay the Beneficiary's 
proffered wage. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-, Inc., ID# 452779 (AAO July 5, 2017) 
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