dismissed EB-1C Case: Stone Products

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-I-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 14,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an importer and distributor of stone products, seeks to permanently employ the 
Beneficiary as its vice president and general manager (QM) 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)(1)(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 Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) a related foreign employer employed the Beneficiary for at least one 
year during the three years preceding the filing of the petition; (2) the Beneficiary has been employed 
abroad in a managerial or executive capacity; (3) the Beneficiary will be employed in the United 
States in a managerial or executive capacity; (4) the Petitioner seeks to employ the Beneficiary in a 
permanent position; (5) the Petitioner has a qualifying relationship with the Beneficiary's foreign 
employer; and (6) the Petitioner has the ability to pay the Beneficiary's proffered wage. The 
Director also found that the Petitioner and the Beneficiary had willfully misrepresented material 
facts relating to the Beneficiary's foreign employment. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by 
disregarding persuasive evidence and binding policy guidance. 
Upon de novo review, we will dismiss the appeal, although we will withdraw several grounds for 
denial and the finding of misrepresentation. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes 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. 
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Matter of M-1-, Inc. 
A United States employer may file Form I-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). 
II. WITHDRAWN GROUNDS FOR DENIAL 
A. The Beneficiary's Employment History and Willful Misrepresentation of a Material Fact 
The law requires the Beneficiary to have worked abroad for at least one year during the three years 
preceding the filing date for the Petitioner or. a qualifying entity such as an affiliate or a subsidiary. The 
Petitioner states that the Beneficiary satisfied this requirement by working for which 
the Petitioner claims to be its affiliate. We will address the claimed qualifying relationship later in this 
decision. 
The Director listed several reasons for finding that the Petitioner had not met this requirement: 
• The Beneficiary's signature appears on purported payroll documents from early 
2014, but the Beneficiary was in the United States at the time, having entered in December 
2013, and therefore he should not have been able to sign documents in India; 
• tax documents appear to identify the Beneficiary as :1 contractor rather than as 
an employee; 
• During a November 2014 site inspection of a company employee did not say 
that the Beneficiary had ever worked for the company in any capacity. Instead, he stated that 
the Beneficiary sometimes came to the site when he was younger. 
• The same employee indicated that workers acknowledged receipt of payment on "muster cards" 
for each individual worker. The Director found this assertion to be inconsistent with the 
monthly payroll master lists reproduced in the record, and concluded that supporting payroll 
documents were illegible. 
The Petitioner has indicated that the Beneficiary remained on the foreign entity's payroll in the early 
months of 2014, and signed the payroll documents via courier. 'With respect to the site visit, the 
Director did not obtain evidence that contradicted the Petitioner's claims. Instead, the Director 
interpreted incomplete evidence in a derogatory light. The interviewed employee did 
not deny the Beneficiary's past employment. Rather, he did not volunteer information about that 
employment. The "muster cards" were issued to individual employees (and destroyed after a few 
months), and there does not appear to be anything inherently contradictory about the existence of a 
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Matter of M-1-, Inc. 
master list of employees and salary payments that the employer would retain. The documents that the 
Director deemed to be illegible are at least partially legible under magnification, and the Beneficiary's 
name is on these documents. 
With respect to the "contractor" reference on the 
tax documents, the tax documents do not state that the 
Beneficiary was a contractor; rather, his name appeared in proximity to the word in an ambiguous and 
unresolved context. The Petitioner provided copies of the Beneficiary's Indian tax returns showing that 
he received salary payments from the foreign entity and which suggest he was a regular employee rather 
than a contractor. 
Thus, the record does not support the Director's specific grounds for finding that the Petitioner had not 
established the Beneficiary's required year of employment with Therefore, we 
withdraw this finding. The Director's finding of willful misrepresentation of a material fact derived 
from this issue; therefore, we also withdraw that finding. 
B. Permanent Employment Offer 
The Director found that the Petitioner does not intend to employ the Beneficiary permanently. This 
finding derives from one source, specifically page 10 of the Petitioner's introductory letter. There, the 
Petitioner stated that the company "intends to employ [the Beneficiary] as Vice President and General 
Manager for a two year period . 
. . . We understand the temporary scope of [the Beneficiary's] 
employment." Subsequently, the Petitioner has stated that the letter was misworded and that the job 
offer is permanent. The Director rejected that explanation, stating that the Petitioner is changing the 
terms of the job offer after the fact. 
On Form I-140, however, asked whether the job offer is permanent 
or temporary, the Petitioner checked 
the box marked "permanent." Shortly before filing the Form I -140 immigrant petition, the Petitioner 
had filed a nonimmigrant petition on the Beneficiary's behalf, and appears to have inadvertently reused 
language from that petition. Supporting this conclusion, the first page of the same letter cites a 
regulation that pertains only to nonimmigrant petitions. Accordingly, we withdraw the Director's 
finding that the proffered U.S. employment is not permanent. 
C. Ability to Pay 
On Form I-140, the Petitioner stated its intention to pay the Beneficiary $40,000 per year. To establish 
its ability to pay that salary, from the filing date until the Beneficiary 
becomes a permanent resident of 
the United States, the Petitioner must submit copies of annual reports, federal tax returns, or audited 
financial statements. 8 C.F.R. § 204.5(g)(2). 
The Retitioner did not yet employ the Beneficiary at the time of filing, but the Beneficiary began 
working for the Petitioner in late 2014. Payroll documents show that the Petitioner has paid the 
Beneficiary $3,000 
per month, which is 10% less than the proffered salary. 
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Matter of M-1-, Inc. 
The Petitioner previously submitted unsigned copies ofiRS Forms 1120S, U.S. Income Tax Returns for 
an S Corporation, for 2012 and 2014. On appeal, the Petitioner submits copies of 2014 and 2015 
returns with original signatures. The Director found that the Petitioner had not submitted transcripts 
from the Internal Revenue Service (IRS) to confirm that the Petitioner had actually tiled the returns, and 
that the filed returns match the copies in the record. The Director also noted the prior approval of a 
second Form 1-140 petition for another beneficiary who has not yet become a permanent resident or 
begun working for the Petitioner, and therefore, the Petitioner must establish its ability to pay both 
beneficiaries. 
The regulation cited above requires copies of income tax returns, but does not require IRS certification 
or transcripts of those returns. The Director has the discretion to request additional evidence, but in this 
case, the Director did not cite deficiencies that would cast doubt on the returns that the Petitioner has 
submitted. Also, because the Petitioner has paid most ofthe Beneficiary's salary, it need only establish 
the ability to make up for the ~hortfall of $4,000 per year. The other beneficiary's proffered salary 
(from a 2006 petition) is $21,278 per year. The Petitioner's net current assets on the submitted tax 
returns are sufficient to cover these figures. 
The Petitioner has established its prima facie ability to pay the Benefi<::iary's proffered salary. 
Therefore, we withdraw this ground for denial. 
iii. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
As defined in the Act, a managerial capacity is an assignment within an organization in which the 
employee primarily manages the organization, or a department, subdivision, function, or component 
of the organization; supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; has the authority to make or recommend personnel actions for direct 
subordinate, 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 exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. A first-line 
supervisor is not considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are professional. Section 
101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A). 
An executive capacity is 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) ofthe 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 
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Matter of M-1-, Inc. 
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. Foreign Employment in a Managerial or Executive Capacity 
If the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate, then the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) requires the Petitioner to submit a 
statement from an authorized official of the petitioning United States employer which demonstrates 
that, in the three years preceding entry as a nonimmigrant, the Beneficiary was employed by the 
entity abroad for at least one year in a managerial or executive capacity. 
Apart from concerns about whether the Beneficiary actually worked abroad as claimed, the Director 
found that the Beneficiary's foreign position, as described, was not in a managerial or executive 
capacity. The Director found that the Petitioner did not provide enough information about the 
Beneficiary's claimed position abroad. On appeal, the Petitioner maintains that it has met its burden 
of proof. We do not agree with the Petitioner's position. 
1. Duties 
When examining the executive capacity of a given beneficiary, we will look first to the petitioner's 
description of the job duties. The Petitioner's description of the job duties must dearly describe the 
duties to be performed by the Beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.F.R. § 204.5(j)(5). 
The Petitioner asserts that the Beneficiary served as general manager of 
that cleans, reconditions, and sells used barrels. The Petitioner stated: 
a company 
[The Beneficiary] managed from 1 0 to 20 employees and supervised different facets 
of the operation such as production, finance, marketing, and the like. Several ofthese 
persons are also degree holders. . . . [The Beneficiary] spent 30% of [his] time 
developing, implementing, and consistently applying business-related policies to 
optimize the quality of the organization and employees; 15% negotiating client 
contracts and promot[ing] sales of products and services; 15% [handling] recruiting, 
hiring, promotion, discipline, and discharge of the personnel of the sales department; 
1 0% developing and implementing marketing str~tegies . . . ; 1 0% in developing 
pricing strategies and responding to internal and external customer inquiry; and 20% 
in meeting with appropriate officials to propose transactions, negotiating 
confidentiality and service agreements, co~rdinating the due diligence process with 
in-house counsel and outside auditors, and directing the preparation and completion 
of sales contracts and other related documents. 
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Matter of M-1-, Inc. 
operates based on a multi-level hierarchy that allows for day-to-day 
and overall needs to be handled efficiently. As General Manager, [the Beneficiary] 
was not only an integral part of the Executive Team, but all those in first-level 
managerial positions also reported to him, including facets such as Finances, Sales, 
Marketing, Human Resources, and Production; these managers/officers in tum 
supervised and dealt with any second-level managers and lower-level employees. 
The above description provides few details about the Beneficiary's claimed work abroad. For 
example, the Petitioner did not identify the "business-related policies" that the Beneficiary 
developed or what tasks he performed to implement them. The description also raises staffing-
related issues, to be discussed further below. · 
Mr. 
proprietor of described a particular project: 
[The Beneficiary] has obtained a contract with " 
' (one of the major coal mining companies in Asia). While working with 
them, it was found that due to some environmental challenges, the company was 
unable to dispose [of] empty barrels. [The Beneficiary] along with officials of 
' and of pollution control 
board in India researched to find and develop a detoxification machine. This machine 
turned out to be successful in detoxifying around seventy five thousand barrels 
without using water and any kind of solvent/chemical. 
added that the Beneficiary's proposal led to orders from two power generating 
compames, and Mr. 
letter contained some details not found in the more general job description, but while it 
described some specific projects, it did not show the nature ofthe Beneficiary's work on those 
projects. Research and development are operational rather than executive tasks. 
Mr. also stated that the Beneficiary was "instrument[ al] in getting export orders from 
)' for supply of Maize starch." Mr. did not 
elaborate. Sales and marketing, which are ways of securing customer orders, are not executive 
duties. Without more information, we cannot conclude that Mr. described executive-level 
activities performed by the Beneficiary. Furthermore, tax documentation in the record refers to a 
sales commission from a starch company as "income from other sources," distinct from the 
Beneficiary's salary from (a company that sells barrels rather than starch). 
Therefore, it is not evident that the Beneficiary's involvement with the "export orders" was in the 
course of his duties with and if it was, it was non-qualifying sales work, for which 
he received a commission as reported on his tax documents. 
In a notice of intent to deny (NOID), the Director stated that the Petitioner had not provided enough 
details about the Beneficiary's duties at In response, the Petitioner submitted a 
new job description, which was similar to the first version. The Petitioner also submitted copies of 
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Matter of M-1-, Inc. 
two 2013 letters from clients. Both letters indicated that the Beneficiary visited other companies to 
discuss pricing and take orders. These visits appear to have been sales calls rather than executive­
level activities. 
In the denial notice, the Director found that the Petitioner "did not provide the actual day-to-day job 
duties of the beneficiary." On appeal, the Petitioner again paraphrased the job description provided 
previously. The Petitioner has not addressed or overcome the Director's finding that the job 
description lacked details about the Beneficiary's day-to-day 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). 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 actual duties themselves will reveal the true nature of the 
employment. !d. The Petitioner has not provided enough information to establish that the 
Beneficiary served in an executive capacity with the foreign company. 
2. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or 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 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 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. 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 a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an 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." Section 10l(a)(44)(B) ofthe Act. 
The Petitioner has not demonstrated that has sufficient staffing and activity to 
warrant a complex organizational hierarchy with an "Executive Team" and two levels of managers. 
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Matter of M-1-, Inc. 
The Beneficiary's initial foreign job description referred to "personnel of the sales department" and 
"in-house counsel." Elsewhere in the same letter, the Petitioner indicated that the Beneficiary 
"[c]ollaborat[ed] with other executive-level employees." The record, however, does not show that 
employed anyone in those capacities. monthly payroll cards, 
already discussed above, named 1 0 employees: 
• GM [the Beneficiary] 
• AGM [Assistant General Manager] 
• Accountant 
• 2 Supervisors 
• 3 Technicians 
• Laborer 
• Driver 
In the NOID, the Director stated that the Petitioner had not documented its claim that the Beneficiary 
managed "1 0 to 20 employees" at , including "finance, sales, marketing, human 
resources, and production managers." The Director also stated that, during the site visit, a 
~mployee stated that the company had six permanent employees (a manager, an "executive 
of outdoor work," and four "skilled workers"), and up to 15 day laborers depending on need. 
In response, the Petitioner submitted an organizational chart, showing the same positions listed on 
the payroll cards, plus as "proprietor." The Petitioner did not identify any in­
house counsel or staffed sales department, or explain its earlier references to those positions. 
provided short job descriptions, including the following for the Beneficiary's 
highest-ranking subordinates (capitalized as reproduced below): 
Assistant GM 
Administration 
Lesioning Work 
Accounts, Commercial & Income tax etc. 
Labor Welfare 
Purchasing Supervisor 
Inspection before Purchase 
Quality approval & Sale price indicator 
Arrangement Transport & Labor 
Supervising Production & Quality 
Production Supervisor 
Supervising Trucks & Labor 
Purchase of Raw material 
Managing production 
Checking on stock 
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Matter of M-1-, Inc. 
Despite the Petitioner's initial claims about an "Executive Team" with multiple layers of 
management, the Petitioner did not establish that any of the Beneficiary's claimed former 
subordinates at were managers or executives. The Petitioner claimed that some of 
the subordinates are degreed professionals. The Petitioner submitted copies of diplomas, indicating 
that accountant and AGM earned bachelor's degrees from m 
India. 
Denying the petition, the Director stated that the Petitioner provided minimal information about the 
subordinate employees at The Director acknowledged the Petitioner's submission 
of an organizational chart in response to the NOID, but stated: "The petitioner did not provide an 
explanation why the organizational chart does not include finance, sales, marketing, human 
resources, 
and production managers." On appeal, the Petitioner's only comment about the foreign 
company's staffing is that "[a]mong others, [the Beneficiary] supervised [an] Assistant General 
Manager, Production Supervisor, Accountant; all degreed individuals." 
The record does not support the Petitioner's initial claims 
regarding the foreign company's staffing 
included titles, positions, and departments. When asked to substantiate its initial claims, the 
Petitioner instead changed its description of the company's staffing. The claim that the Beneficiary 
qualifies as a manager or executive, however, rests on the originally claimed structure. Without that 
structure, we are left mostly with general assertions about the level of authority that the Beneficiary 
exercised over 
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; 8 C.F.R. 
§ 204.5(j)(4)(i). 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). 
To determine whether the Beneficiary managed professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. 1 A subordinate's possession of a degree does not establish that the position requires that 
degree. 
1 Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean' "any occupation for which a United States 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." 
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Matter of M-1-, Inc. 
The Petitioner stated tpat Exhibit 4 of its response to the NOID included the "academic 
qualifications [and] diplomas for the professional employees" at In the denial 
notice, the Director found that Exhibit 4 did not contain this evidence. The record supports the 
Director's reading of the record. The Petitioner does not address this finding on appeal, instead 
repeating the assertion that some of the Beneficiary's subordinates were "degreed individuals." 
The Petitioner has also claimed that the Beneficiary supervised managers and supervisors, but, as 
detailed above, the Petitioner has provided inconsistent and conflicting accounts of the foreign 
company's personnel structure. The minimal job descriptions provided for the Beneficiary's 
claimed subordinates do not establish that they worked in primarily managerial or supervisory 
capacities. 
The Petitioner has not established, in the alternative, that the Beneficiary was employed primarily as 
a "function manager." The term "function manager" applies generally when a beneficiary's 
managerial role arises not from supervising or controlling the work of a subordinate staff but instead 
from responsibility for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The statute and regulations do not define the term "essential function." 
If a petitioner claims that a beneficiary will manage an essential function, that petitioner must clearly 
describe the duties to be performed in managing the essential function, i.e., identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties dedicated to managing the essential function. See 8 C.P.R. § 204.5(j)(5). 
In addition, a petitioner's description of a beneficiary's daily duties must demonstrate that the 
beneficiary managed the function rather than performed the duties related to the function. 
Because the Petitioner has provided conflicting and unsubstantiated job descriptions for the 
Beneficiary, we cannot conclude that the Petitioner has shown that the Beneficiary was a function 
manager at 
The Petitioner has not established that 
executive capacity. 
B. U.S. Employment in an Executive Capacity 
employed the Beneficiary in a managerial or 
The Petitioner has stated that the Beneficiary "will be employed at the high-level executive position 
level [sic]." Therefore, we need not consider the separate requirements of a managerial capacity 
here. 
The regulation at 8 C.P.R. § 204.5(j)(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. 
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Matter of M-1-, Inc. 
1. Duties 
The Petitioner initially provided the following descriptiqn of the Beneficiary's intended U.S. duties: 
Description of Duties 
Management/Operational Decisions and Conducting Due 
Diligence for Acquisitions of outlets. 
• More specifically, [the Beneficiary's] duties wjll consist of 
conducting due diligence and feasibility testing for 
acquisitions and expansion into other markets; negotiating 
and supervising the drafting of purchase agreements for 
additional businesses; serving as the key U.S. contact for the 
shareholders and directors of tne parent company in the 
operation, of the company by planning and developing the 
U.S. investment. Dealing with attorneys in the acquisition 
process and coordinating with engineers in environmental 
testing; [the Beneficiary] will achieve these goals by having 
weekly meetings with the directors and shareholders. 
Combined Company Representation and Business Negotiations 
[Contract Negotiations and Developing Trade and Marketing 
Strategies] 
• [The Beneficiary] will achieve this goal by overseeing the 
legal and financial due diligence process and resolving any 
related Issues including purchase contracts; overseemg 
licensing and dealing~ with government officials in order to 
operate a successful enterprise; developing trade and 
consumer market strategies based on guidelines formulated by 
[the Petitioner]. [The Beneficiary] will carry out these goals 
by engaging professionals such as attorneys, accountants, 
advertising companies and commercial contractors to provide 
related services. 
• [The Beneficiary] will also be working with upper-level 
managers to secure additional business through promotions 
and vendor networking. 
Combined Financial Decisions and Business Negotiations 
[Decision on Expansion, Incurring Expenses, resolving financial 
related issues, etc.] 
• [The Beneficiary] will be responsible for developing a 
financial plan with the President, planning and implementing 
the expansion of the U.S. entity; he will also be developing 
11 
Time% 
25% 
10 hours 
spent 
weekly 
30% 
12 hours 
spent 
weekly 
30% 
12 hours 
spent 
weekly 
Matter of M-1-, Inc. 
and implementing plans to ensure [the Petitioner's] profitable 
operation this will be achieved by [the Beneficiary] meeting 
with company managers and directors on a periodic basis for 
strategic planning and problem solving. [The Beneficiary] 
will get direction from the board of directors of the company. 
• Part of the expansion activities that [the Beneficiary] will be 
involved in will entail the following duties: Managing all 
planning, expansion and investment activities; creating a plan 
to secure additional retail locations; coordinating with 
financial institutions to obtain financing; reviewing financial 
information pertaining to potential locations to determine 
feasibility. 
• [The Beneficiary] will be supervising all financial aspects of 
the company by working with a CPA to maintain stable 
financials and make financially sound, well-supported 
decisions based on financial records; and preparing and 
presenting a yearly business plan, including financial 
statements and budgeting plans, to the directors and 
shareholders ofthe company. 
Organizational Development of Company: Putting Management 
Team into place. 
• [The Beneficiary] will be responsible for developing 
organizational policies and objectives; providing top-down 
leadership and maintaining a rigorous approach to 
management via metrics throughout the company; evaluating 
organizational efficiencies for profitable operation; 
developing the organization to its full potential and keeping 
personnel motivated and productive; evaluating and 
improving policies and procedures as necessary. [The 
Beneficiary] will achieve these goals by conducting weekly 
meetings with the President and other managers to ensure that 
the company's performance is on track and that the man the 
Board of Directors [sic]. 
• [The Beneficiary] will also have the ability' to recommend the 
hiring and firing of upper management that supervise 
subordinate managers who in turn supervise lower level 
employees in running day-to-day operations; she [sic] will 
provide guidance to the managers by executing or 
recommending personnel action[.] 
15% 
6 hours 
spent 
weekly 
The Petitioner endeavored to specify the activities that the Beneficiary would perform in order to 
achieve the listed goals, but the Petitioner did not explain how the listed activities would accomplish 
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Matter of M-1-, Inc. 
those goals. For example, the Petitioner did not explain how "weekly meetings with the President 
and other managers" would "keep[] personnel motivated and productive." It is insufficient for the 
Petitioner to list goals and responsibilities, and assert that the Beneficiary will meet those goals by 
overseeing and delegating their implementation. By the time the Petitioner filed the appeal, it had 
employed the Beneficiary. for over a year, but the record does not establish the Beneficiary's work 
with "professionals such as attorneys, accountants, advertising companies and commercial 
contractors" as listed in the job description. 
The Petitioner has not shown that "conducting due diligence and feasibility testing" is an executive 
duty, rather than a task properly delegated to lower-level staff. 
Regarding the above reference to "the shareholders and directors of the parent company," the 
Petitioner itself is the parent company, and has only one shareholder. The record does not document 
a separate board of directors. The job description, in general, implies a significantly greater degree 
of organizational complexity than the record supports, particularly with regard to claims of multiple 
layers of upper and lower management. 
The Director did not discuss deficiencies in the job description, either in the NOID or in the denial 
notice. Instead, the Director focused on the Petitioner's staffing, to be discussed below. We find 
that the Petitioner's description of the Beneficiary's specific duties lacks detail, and focuses on broad 
areas of responsibility rather than identifiable tasks that relate to those responsibilities. 
2. Staffing 
An employee list includes the following titles: 
) 
• President 
• GM [to be filled by the Beneficiary] 
• AGM 
• 2 Managers 
• 3 Sales 
• 1 Sales/ Accounts 
• 2 Labor 
An additional line on the list, between the AGM and the first manager, shows no title, with the 
phrase "do we have to add this?" under "Name." Although this line does not refer to any employee 
or official, it shows a $2,000 monthly salary. The inclusion of a salary with no corresponding 
employee or job title raises questions about the preparation ofthe document. 
Quarterly tax returns in the record are roughly consistent with the claimed level of staffing, showing 
11 to 13 employees during 2013 and the first quarter of 2014. The record does not include the 
Petitioner's quarterly tax return for the third quarter of 2014, which included the filing date. 
13 
Matter of M-1-, Inc. 
The Director asked, in the NOID, for more information and evidence about the Petitioner's 
employees at the time of filing in August 2014 and thereafter. The Petitioner submitted a May 2016 
organizational chart showing 10 positions and copies of 20 2014 IRS Forms W-2, Wage and Tax 
Statements. Together, the documents show the following positions and salaries (rounded to the 
nearest dollar): 
2014 2015 
• President $126,000 $119,000 
• GM [the Beneficiary] 3000 38,220 
• AGM 18,400 20,400 
• Accounts 10,400 13,000 
• Manager 1 9000 
• Manager 2 13,268 978 
• Sales 1 5365 
• Sales 2 8016 487 
• Sales 3 [No IRS Form W-2 for either year] 
• Sales 4 667 
In both years, most of the Petitioner's employees earned less than a year's full-time pay at minimum 
wage, including both of the identified managers. 
Eighteen employees not named on the 2016 organizational chart received salaries in 2014, 2015, or 
both years. Most of these employees titles appear to have worked short-term, part-time, or both. 
The annual salaries ranged from $86 to $15,400; 13 out of the 18 earned less than $10,000 per year. 
Because the Petitioner had so few full-time employees in 2014 and 2015, it is not evident that the 
company had sufficient staff at any given time to relieve the Beneficiary from having to perform 
operational or administrative functions necessary for the company's day-to-day operations. The 
Petitioner also has not supported its claim that half of the employees on the organizational chart are 
managers or executives. The Petitioner has not provided enough information about the Beneficiary's 
claimed subordinates to support the assertion that the Beneficiary will serve in an executive capacity, 
overseeing the multi-level management structure the Petitioner has described. 
The Director, in the denial notice, found that the Petitioner had not established that the company has 
a management structure that warrants executive leadership. On appeal, the Petitioner repeats the 
Beneficiary's job description and resubmits the organizational chart, but provides no ilew 
information and no rebuttal to show how the Director's conclusion was in error. 
The Petitioner has not established that the company has the complex organizational structure, with 
layers of management, contemplated in the statutory definition of executive capacity. 
14 
.
Matter of M-1-, Inc. 
IV. QUALIFYING RELATIONSHIP 
The Director found that the Petitioner did not establish that it has a qualifying relationship with the: 
Beneficiary's foreign employer, On appeal, the Petitioner submits documentation, 
much of it previously submitted, and asserts that the evidence shows that the owner of the 
petitioning company has purchased a controlling interest in the foreign entity. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a 
U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). The term "affiliate" means 
one of two subsidiaries both of which are owned and controlled by the same parent or individual; or 
one of two legal entities owned and controlled by the same group of individuals, each individual 
owning and controlling approximately the same share or proportion of each entity. 8 C.F.R. 
§ 204.5(j)(2). 
The regulation and case law confirm that ownership and control are the factors that determine 
whether a qualifying relationship exists between United States and foreign entities for purposes of 
this visa classification. 2 In the context of this visa petition, ownership refers to the direct or indirect 
legal right of possession of the assets of an entity with full power and authority to control; control 
means the direct or indirect legal right and authority to direct the establishment, management, and 
operations of an entity. Matter of Church Scientology Int'l, 19 I&N Dec. at 595. 
The Petitioner initially stated: "In 2014, Mr. 
acquired majority ownership and control of 
, who had previously been 
the sole shareholder of the Petitioner, 
' by purchasing a 51% interest from 
sole owner. 
A document dated June 7, 2014, indicated that Mr. agreed to purchase 51% of 
in which he would become a partner "[i]mmediately on payment of amount in A/C of M/s 
" In the document, Mr. stated: "I am investing US$18,500," and "shall 
be investing US$12,500 ... within 180 days of entering into Partnership deed." This initial 
document does not demonstrate a qualifying relationship. Rather, it is a statement of intention to 
create that relationship. 
The Petitioner submitted copies ofbank documents from June 2014, showing two payments from the 
Petitioner to $3,500 on March 27, 2014, and $15,000 on June 12, 2014. These 
payments account for the initial $18,500 investment, but not the subsequent $12,500 described in the 
above agreement. 
2 See Matter ofChurch Scientology lnt'l, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Med. Sys., Inc., 
19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm 'r. 1982). 
15 
.
Matter of M-1-, Inc. 
In the NOID, the Director stated that the Petitioner had not sufficiently established a qualifying 
relationship with In response, stated: "Mr. exercises full 
control of manageriaf and financial functions of both the foreign and domestic entities" and owns 
51% of the foreign entity. 
A partnership deed, dated May 25, 2016, states that and "have 
been carrying on the above said business in partnership since 01-04-2016," which indicates that the 
partnership did not exist when the Petitioner filed the petition in August 2014. Before this 2016 
do.cument, there does not appear to have been anything to trigger agreement to pay 
the balance of the purchase price "within 180 days of entering into Partnership deed." The form 
states that both partners have an unspecified degree of control over it does not 
show that Mr. had dominant or equal control over the entity. It also shows that either partner can 
sign, endorse, or execute bonds, bills, notes, and "other securities given on behalf of the 
partnership," which does not appear to be consistent with the claim that Mr. has "full control of 
... financial functions." 
In the denial notice, the Director found that the Petitioner had not submitted 
bank documents 
showing that received payment, or a partnership agreement ·specifying that 
controls The Director found that the submitted 2016 partnership 
deed did not establish the existence of a qualifying relationship at the time of filing in 2014, or that 
Mr. had paid the full purchase price for his intended share of the foreign company. 
On appeal, the Petitioner submits copies of previously submitted materials and a copy of a bank 
letter addressed to and dated May 14, 2015. The letter referred to two payments 
from the Petitioner -
a $14,985 payment from June 2014 and a $985 payment from July 2014. 
(These figures appear to reflect deduction of wire transfer fees.) The bank stated: "The sharesare to 
be issued within 180 days from the date of inward remittance and on issue of shares you are required 
to submit within 30 days from the date of issue a report in form FC-GPR . . . . Hence you are 
requested to comply [with] the above requirements." This letter implies that had 
not yet complied as of May 14, 2015; otherwise, the letter would have been unnecessary. 
The submitted documents indicate that the petitioning company paid the initial $18,500, but not the 
full remaining $12,500 discussed in the June 2014 agreement. (Although the Petitioner has indicated 
that personally purchased an interest in the bank documentation 
indicates that the payments originated from the petitioning company rather than its owner.) 
The Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F .R. § 103 .2(b )( 1 ). 
The execution of a partnership deed in 2016 cannot establish eligibility as of 2014. We cannot 
properly approve the petition at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). See 
also Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998) (a petitioner may not make material 
16 
.
Matter of M-1-, Inc. 
changes to a petition that has already been filed in an effort to make an apparently deficient petition 
conform to US CIS requirements). ' 
The documents submitted on appeal do not show that had fully paid for and taken 
possession of 51% of at the time the Petitioner filed the petition in August 2014, or 
that Mr. 'exercises full control of [its] managerial and financial functions" as claimed on appeaL 
Therefore, the record does not establish that a qualifying relationship existed at the time of filing. 
V. CONCLUSION 
The Petitioner did not establish that the Beneficiary has been, and will be, employed in an executive 
capacity. The Petitioner also has not established a qualifying relationship with the Beneficiary's 
claimed foreign employer as of the petition's filing date. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-1-. Inc., ID# 375630 (AAO June 14, 2017) 
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