dismissed EB-1C Case: Transportation

U.S. Citizenship 
and Immigration 
Services 
MATTER OF VRPT -, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
· DATE: SEPT. 14, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a transportation company, seeks to permanently employ the Beneficiary as its "General 
Director/General Manager" 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 an executive or managerial capacity. 
The Director of the Texas Service Center revoked the approval of the petition, concluding that the 
Beneficiary's previous attempt to obtain an immigration benefit through a fraudulent marriage 
precludes approval of the instant petition pursuant to 204(c) of the Act. The Director further determined 
that the Petitioner did not establish, as required, that: ( 1) the Beneficiary would be employed in the 
United States in a managerial capacity; and (2) the Beneficiary ~as employed abroad in a managerial 
capacity. 
On appeal, the Petitioner asserts that the Beneficiary is the owner and CEO of the foreign entity, was 
working in a managerial capacity for the foreign entity, and will continue to perform high-level 
managerial duties for the Petitioner. The Petitioner disputes that the record contains sufficient 
evidence to support the Director's conclusion that the Beneficiary attempted to gain immigrant status 
by means of a fraudulent marriage. The Petitioner contends that, in any event, the 204( c) marriage 
fraud bar does not apply because it was enacted after the Form I-130, Petition to ClassifY Status of 
Alien Relative for Issuance of Immigrant Visa, 1 was filed on the Beneficiary's behalf. 
Upon de novo review, we find that the Petitioner has overcome the Director's finding with regard to 
the Beneficiary's employment abroad. The Director's finding on that issue was based, in large part, 
on the finding that there are unresolved inconsistencies between the foreign entity's organizational 
chart and information provided in the foreign employees' job descriptions. The Petitioner has 
provided a credible explanation for those perceived inconsistencies and the evidence is otherwise 
sufficient to establish that the Beneficiary meets this eligibility requirement. As the Petitioner has 
overcome the Director's finding with regard to the Beneficiary's employment abroad, we will withdraw 
that portion of the Director's decision. 
1 
This form is now titled "Petition for Alien Relative." 
Matter of VRPT-, Inc. 
However, we find that the Petitioner has not overcome the remaining two grounds for revocation; 
therefore, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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 Unifed States in order to continue to render 
managerial or executive services to the same employer or to its subsidiary or aftiliate. Section 
203(b)(l)(C) of the Act. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The Form I-140 must be accompanied by a statement from an authorized ofticial 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. § 204.5(j)(3). 
In addition, with regard to the revocation of a previously approved petition, section 205 of the Act, 
8 U.S.C. § 1155, states: "The Attorney General may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 l&N Dec. 582, 590 (BIA 1988) (citing Matter (?f Estime, 19 J&N 450 (BIA 1987)). 
2 
Matter of VRPT-, Inc. 
II. APPLICATION OF THE 204(C) MARRIAGE FRAUD BAR 
The first issue we will address in this decision is whether the Beneficiary previously attempted to obtain 
an immigration benefit through a fraudulent marriage m1d, if so, whether the marriage fraud bar at 
204( c) of the Act applies, thereby precluding approval of the instant petition. 
Section 204( c) of the Act, which governs the procedures for granting immigrant status, states that: 
Notwithstanding the provisions of subsection (b )2 no petition shall be approved if 
(1) the alien has previously been accorded, or has sought to be accorded, an 
immediate relative or preference status as the spouse of a citizen of the United. 
States or the spouse of an alien lawfully admitted for permanent residence, by 
reason of a marriage determined by the Attorney General to have been entered 
into for the purpose of evading the immigration laws, or 
(2) the Attorney General has determined that the alien has attempted or conspired 
to enter into a marriage for the purpose of evading the immigration laws. 
The regulation corresponding to section 204(c) ofthe Act, at 8 C.F.R. § 204.2(a)(J)(ii), states: 
Section 204( c) of the Act prohibits the approval of a visa petition filed on behalf of an 
alien who has attempted or conspired to enter into a marriage for the purpose of 
evading the immigration laws. The director will deny a petition for immigrant visa 
classification filed on behalf of any alien for whom there is substantial and probative 
evidence of such an attempt or conspiracy, regardless of whether that alien received a 
benefit through the attempt or conspiracy. Although it is not necessary that the alien 
have been convicted of, or even prosecuted for, the attempt or conspiracy, the 
evidence of the attempt or conspiracy must be contained in the alien's file. 
In Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990), the Board oflmmigration Appeals held that visa 
revocation pursuant to section 204( c) may only be sustained if there is substantial and probative 
evidence in the record of proceeding to support a reasonable inference that the prior marriage was 
entered into for the purpose of evading immigration laws. !d. at 167. If substantial and probative 
evidence of marriage fraud exists, a petitioner must show by a preponderance of evidence that a 
beneficiary did not marry for the purpose of evading immigration laws. Matter ofLaureano, 19 I&N 
Dec. I, 3 (BIA 1983); Matter of Phillis, 15 I&N Dec. 385, 386 (BIA 1975). The central question in 
determining the bona fides of a marriage is whether the parties intended to establish a life together at 
the time of their marriage. Laureano, 19 I&N Dec. at 3; see also Lutwak v. United States, 344 U.S. 
604, 611 (1953). 
2 
Subsection (b) of section 204 of the Act refers to preference visa petitions that are verified as true and forwarded to the 
U.S. Department of State for issuance of a visa. 
3 
.
Matter of VRPT-, Inc. 
A. Facts and Procedural History 
The Beneficiary and (also referred to in the record as and 
were married in Texas on 1986, and 15 days later, filed 
a Form I-130 on behalf of the Beneficiary. The Form I-130 was approved on April 29, 1986. Six 
months later, the U.S. Department of State (DOS) returned the Form I-130 to the former Immigration 
and Naturalization Service (INS) with a report stating that during an interview with the consular officer, 
the Beneficiary could not answer basic questions about the marriage, such as how and where the 
Beneficiary and his spouse met or what his spouse gave him for his birthday. The report indicated that 
the Beneficiary knew little about his spouse's family and that she knew little about his. Additionally, 
the 13-year age difference between the Beneficiary and his spouse was noted. These concerns led DOS 
to question whether the marriage was bona fide causing the Form I-130 to be returned for an 
investigation. 
INS requested the Beneficiary to appear in person for an interview on March 20, 1987. The Beneficiary 
failed to appear and, as a result, INS automatically terminated the Form I-130 four months later. 
On 1990, the Beneficiary appeared at the in Texas, as an 
applicant for a border crossing card (BCC). A memorandumj created on the same day states that a 
routine check of government records revealed that a Form I-130 had been filed on the Beneficiary's 
behalf and that it was suspected that the petition was "based on a sham marriage." The memorandum 
further states the following, in part: 
During his interview fo~ a BCC, the [Beneficiary] at first denied that he had ever been 
married and that such a petition had ever been filed [ o ]n his behalf After further 
questioning, the [Beneficiary] admitted that he had in fact sought to obtain an immigrant 
visa by fraud. [The Beneficiary] refused to give a sworn statement, but he should be 
deemed excludable under section 212( a)(l9) should he ever reapply for admission into 
the United States. 
On October 29, 2012, the Petitioner filed a Form I-140 (receipt number on the 
Beneficiary's behalf. The Director issued a Notice of Intent to Deny (NOID) notifying the Petitioner 
about the finding that resulted from the Beneficiary's 1990 BCC application where he "admitted to 
entering a sham marriage in conjunction with a fraudulently filed Form I-130 ... in order to obtain an 
immigrant visa by fraud." Because the Petitioner "may be unaware of the derogatory ipfonnation," the 
3 
A copy of this memorandum was provided to the Beneficiary and the Petitioner submitted a copy of this memorandum 
to USCIS. We have reviewed the original memorandum and note that the copy submitted by the Petitioner is identical to 
the original memorandum in all respects except (I) the name of the immigration inspector who interviewed the 
Beneficiary and wrote the memorandum was redacted in two places, and (2) the initials of the reviewer of the 
memorandum were redacted. 
4 
.
Matter of VRPT-, Inc. 
Director gave the Petitioner an opportunity to rebut the mmTiage fraud information. No response was 
received resulting in the denial of the petition.4 
The Petitioner filed a timely appeal supported by an appeal brief. The Petitioner did not deny that it 
received the NOID. Instead, the Petitioner contended that the Beneficiary was never made aware of 
U.S. Citizenship and Immigration Services' (USCIS) belief that an alleged fraud existed and further 
stated that he was never served with a request for evidence or a NOlO, nor was he scheduled for an 
interview to give him the opportunity to address the marriage fraud allegations.5 The Petitioner 
supplemented its appeal brief with a copy of the denial decision, evidence that the marriage between the 
Beneficiary and dissolved on 2002, and evidence 
that the divorce was registered 
in Mexico on 2004. 
We .found that the Petitioner failed to respond to the NOID and dismissed the appeal as a failure to 
respond to a NOID is sufficient grounds to deny. 8 C.F.R. § 103.2(b)(13). We added that even if the 
Petitioner had been able to overcome the derogatory evidence, the Form I-140 did not merit approval 
because the Petitioner did not establish that the Beneficiary was employed abroad in a qualifying 
managerial or executive capacity or that the proposed position would be in a managerial or executive 
capacity. 
Two and a half months later, the Petitioner filed the instant Form l-140 on the Beneficiary's behalf and 
the petition was approved. However, the Director subsequently reviewed the approval, concluded that 
it was in error and accordingly issued a Notice of Intent to Revoke (NOIR), as required, infom1ing the 
Petitioner of the marriage fraud issue.6 
The NOIR referenced the Beneficiary's attempt to enter into a fraudulent marriage to obtain an 
immigration benefit and noted the 1986 DOS report, the 1990 border interview, and the 1990 INS 
memorandum. The NOIR gave specific details from the DOS report and INS memorandum regarding 
the marriage fraud allegation and stated that "the [B]eneficiary's file does not contain any evidence to 
indicate that [the ,Beneficiary and his spouse] comingled their financial resources, cohabitated as a 
married couple, or jointly filed tax returns as a married couple." The NOIR went on to state that ,"an 
4 
The NOlO and denial decision were sent to the Petitioner's last known address at the time, as well as to the Petitioner's 
attorney of record. 
5 The regulations preclude beneficiaries from participating in employment-based immigrant visa proceedings. 8 C.F.R. 
§ 103.2(a)(3) ("A beneficiary of a petition is not a recognized party in [a benefit request] proceeding."); and 8 C.F.R. 
§ I 03.3(a)( I )(iii)(B) (for motions and appeals, a beneficiary is not an "affected party" with -legal standing in a 
proceeding). Accordingly, USC IS communicates with petitioners and their attorneys of record, not the beneficiaries of 
such petitions. As such, USCIS does not provide any type of notice to the petitions' beneficiaries, and USC IS properly 
sent the NOlO only to the Petitioner and its counsel. We further note the following: (I) the Beneficiary in this case 
owns the foreign entity which in turn owns the Petitioner; (2) the Beneficiary is the General Director of the Petitioner; 
and (3) according to the Petitioner the Beneficiary is "responsible for managing every single aspect of the company's 
operations." 
6 
The Director also noted in the NOIR that the record lacks sufficient evidence to establish that (I) the Beneficiary was 
employed and would be employed in a managerial or executive capacity, (2) the Petitioner is part of a multinational entity, 
and (3) the Petitioner would be able to pay the proffered wage to the Beneficiary. 
5 
.
Matter of VRPT-, Inc. 
independent review of the evidence presents substantial and probative evidence to support a reasonable 
inference that the [B]eneficiary attempted to enter into a prior marriage for the purpose of evading 
immigration laws." 
In response to the NOIR, the Petitioner stated that "US CIS had never [come] to the detem1ination that 
the [B]eneficiary attempted or conspired to enter into a marriage for the purpose of evading immigration 
laws until he filed [the] Form I-140, Immigration Petition for Alien Worker." The Petitioner fl..niher 
argued that "[s]ince there is no document(s) other than the statements in the NOIR it deprives the 
[B]eneficiary from the ability to rebut, give an explanation, or present any evidence since what was 
asked and answered has not been provided and only examples were given." 
With respect to the marriage fraud issue, the Petitioner submitted the following evidence: (1) a copy of 
the marriage license for the Beneficiary and (2) a copy of a certificate of marriage between 
the Beneficiary and and (3) a statement by whose relationship to the 
Beneficiary or is not identified. The statement by provides her name, 
date of birth, and the following two sentences: (1) "I was present at the marriage of [the Beneficiary] 
and ; and (2) "I was a witness at the Bonds of Matrimony for [the Beneficiary] and 
The Petitioner provided no other evidence regarding the marriage and its bona fides. 
The Director revoked the approval of this second Form 1-140 after reviewing the Petitioner's response. 
In revoking the approval of the petition on the marriage fraud ground, the Director referenced the 
interviews the Beneficiary and gave to DOS and INS, the automatic termination of the 
Form 1-130, and the lack of evidence of the bona fides of the marriage. The Director specifically 
discussed the single statement by and the lack of sufficient detail to demonstrate the 
genuineness of the marriage. The Director found that the Beneficiary's file shows that the Beneficiary 
and "had a lack of awareness that [spouses] in a bonafide marriage would be expected to 
have" and the evidence of record "presents substantial and probative evidence to support a reasonable 
inference that the [B]eneficiary married for the purpose of evading the U.S. 
immigration laws." 
On appeal, the Petitioner contends that the Beneficiary did not receive a copy of the NOIR. 7 The 
Petitioner further contends that the Beneficiary did not admit to committing marriage fraud and points 
to the lack of corroborating evidence in that regard. The Petitioner states that the documentation created 
by the immigration inspector regarding the 1990 interview at the border is "vague and does not clearly 
state who he spoke to at INS, where he called to obtain any information[,] or if the correct case was 
identified." The Petitioner also points to documentation of the Beneficiary's refusal to give a sworn 
statement at the time of the 1990 interview. 
7 
As stated above, USCIS properly communicated with the Petitioner and its attorney of record and had no authority to 
communicate directly with the Beneficiary. We note, however, that the Petitioner did receive the NOlR and responded 
to the notice. 
6 
Matter of VRPT-, Inc. 
The Petitioner also claims that because the Form I-130 in question preceded the enactment of section 
204(c) of the Act, the marriage fraud bar cannot be applied to the Beneficiary. With respect to the 
Beneficiary's intent to enter into a fraudulent marriage for the purpose of evading U.S. immigration 
laws, the Petitioner argues that the lack of bona fides of a marriage is a separate issue from an intent to 
defraud. The Petitioner states that USCIS "jump[ ed] to the conclusion that the marriage was entered 
into for purposes of evading the U.S. immigration laws without providing evidence of any intent or 
occurrence of fraud on the Beneficiary's behalf." 
B. Analysis 
Forthe reasons that will be discussed below, we find that the Petitioner has not overcome the Director's 
revocation of the approval of the petition on the marriage fraud ground. 
At the outset, we will address the Petitioner's argument that because the Form I-130 in question was 
filed before the enactment of section of 204( c) of the Act, the marriage fraud bar cannot be applied to 
this petition. We disagree. The marriage fraud bar has been in existence for over 50 years. Originally 
enacted in 1961, it has largely remained unchanged, mandating that "no petition" shall be approved if 
a foreign national has been found to have engaged in a sham marriage for the purpose of evading 
U.S. immigration laws. The bar was initially located in section 205(c) of the Act and stated, in 
relevant part, "[N]o petition shall be approved if the alien previously has been accorded, by reason of 
marriage determined by the Attorney General to have been entered into for the purpose of evading 
the immigration laws ... a nonquota status ... as the spouse of a"citizen of the United States, or ... 
a preference quota status .... " Pub. L. No. 87-301, § 10 (1961). Although the language is not 
identical to section 204( c) of the Act, the statute has not changed significantly in substance. See Pub. 
L. No. 87-301, § 10 (1961); Pub. L. No. 89-236, § 4 (1965) (moving the bar from section 205(c) ofthe 
Act to its current section 204(c)). Thus, the Petitioner's claim that section 204(c) of the Act may not be 
applied to the current 1-140 is misplaced. 
Next, we will discuss whether good and sufficient cause existed to issue the NOIR, which we conclude 
did. We agree that the record at the time of the notice's issuance indicated that the Beneficiary 
entered into a prior marriage for the purpose of evading the immigration laws. The NOIR which 
referenced the Beneficiary's failure to appear at the interview in March 1987, and the 1986 DOS and 
1990 INS documents, gave sufficient details of the Director's concerns and informed the Petitioner that 
the record presented "substantial and probative evidence to support a reasonable inference that the 
[B]eneficiary attempted to enter into a prior marriage for the purpose of evading immigration laws."8 
The NOIR further stated that "the [B]eneficiary's file does not contain any evidence to indicate that [the 
Beneficiary and his spouse] comingled their financial resources, cohabitated as a married couple, or 
jointly filed tax returns as a married couple." 
8 
While it appears that the Petitioner does not have a copy of the above-referenced DOS report, which the Director 
partially relied on in making his conclusion as to the marriage fraud issue, we reviewed the DOS report and find that the 
details it contains were accurately summarized and relayed to the Petitioner in the NOIR, thus affording the Petitioner 
sufficient information to formulate a meaningful response. 
.
Matter of VRPT-, Inc. 
Evidence indicating that the Beneficiary entered into a prior marriage for the purpose of evading the 
immigration laws includes: (1) the DOS report; (2) the Beneficiary's failure to appear at the INS 
interview and resulting termination of the I-130 petition; and (3) the 1990 border crossing interview 
where the Beneficiary denied that he was ever married or that such a petition had ever been filed on 
his behalf and then later admitted to having sought to obtain an immigrant visa by fraud. Further, 
the record lacks evidence that the Beneficiary ever denied committing marriage fraud, despite the 
previous NOID, petition denial, and appeal dismissal on this very issue. The Director therefore had 
sufficient reason to believe that the Beneficiary married for the purpose of evading the 
immigration laws. Matter ofLaureano, supra. 
Despite the specific request in the NOIR of "evidence to show that the marriage between [the 
Beneficiary and was bona fide," the only evidence submitted in this proceeding 
regarding the bona fides of the marriage in question is a single document - the statement by 
an unknown individual who only vaguely claims she was present at the marriage of the 
Beneficiary and We note that this statement only mentions that a marriage occurred. 
As there is no evidence in the record that demonstrates that the Beneficiary and were in a 
bonafide marriage and the Petitioner has not submitted any evidence rebutting the Director's finding 
in this regard, the Petitioner has not established by a preponderance of the evidence that the marriage 
was bonafide. 
Further, our de novo review of the record supports the Director's conclusion that substantial and 
probative evidence in the record demonstrates that the Beneficiary entered the marriage for the 
purpose of evading the immigration laws. In revoking the approval of the petition, the Director 
relied, in part, on the 1990 INS memorandum. Although the version of the memorandum in the 
Petitioner's possession redacts the name of the INS immigration inspector and the initials of the 
reviewer of the memorandum, it is identical to the original document in all other respects. Despite 
its age, the document is significant in that it reports that the Beneficiary at first denied that he had 
ever been married or that a Form I-130 petition had ever been filed on his behalf. While it is true 
that the memorandum also indicates that the Beneficiary declined to give a sworn statement, and 
states that "[a]fter further questioning, the [Beneficiary] admitted that he had in fact sought to obtain 
an immigrant visa by fraud," a clear admission against interest, more importantly, it reflects the 
Beneficiary's denial of the fact of his marriage and subsequent 1-130 petition, both of which clearly 
exist and of which the Beneficiary was certainly well aware. 
The Petitioner has not alleged nor submitted sufficient evidence to rebut the contents of these 
documents and the record does not indicate that they are deficient or questionable in any way. 
Government documents are entitled to a presumption of regularity, in the absence of contradictory 
evidence. See Lat(f v. Obama, 666 F.3d 746 (D.D.C. 2011) ("presumption of regularity [of 
discharge of official duties] thus embodies a common-sense judgment about the general reliability of 
hearsay evidence memorialized in a government record"), citing United States v. Chemical Found, 
Inc., 272 U.S. 1, 14-15 (1926). We also find it notable that the documents were created years apart 
by two different agencies in two different contexts, both involving the Beneficiary's attempt to 
secure immigration benefits. The interaction that the Beneficiary had with DOS related to obtaining 
.
Matter of VRPT-. Inc. 
a marriage-based immigrant visa, while his interaction with INS occurred while he was attempting to 
cross into the United States using a BCC. We accordingly find no fault on the Director's part in 
relying on these documents in revoking the approval of the petition. 
The Director also referenced the Beneficiary's failure to appear before the INS for the interview 
scheduled in March 1987. Failing to appear for this interview, which was scheduled after the 
Beneficiary's interview with DOS, cut oti a line of inquiry regarding the bona fides of the marriage 
between the Beneficiary and While perhaps suggestive of a lack of a bona fide 
marriage on its face, this action clearly does not mean that USCIS is not at liberty to weigh and draw 
conclusions from the evidence that does exist in the record regarding the issue. 
For the foregoing reasons, we find that there is substantial and probative evidence in the record of 
proceedings to support a reasonable inference that the Beneficiary's prior marriage was entered into 
for the purpose of evading the immigration laws. We further find that the Petitioner has not shown 
by a preponderance of the evidence that the Beneficiary did not marry for the purpose of evading the 
immigration laws. Matter ofTawfik, supra. Therefore, we agree with the Director's conclusion that 
approval ofthe Form 1-140 petition is barred by section 204(c) ofthe Act. 
III. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
Notwithstanding the operation of section 204( c) of the Act to bar the current petition's approval, the 
record also does not establish that the Beneficiary would be employed in a managerial capacity.9 
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 ofthe organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or ifno 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. 
9 
The Petitioner does not claim that the Beneficiary would be employed in the United States in an executive capacity. 
9 
Matter of VRPT-, Inc. 
Section 101(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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS must take into account the reasonable needs of the organization, in 
light ofthe overall purpose and stage of development ofthe organization. See section 101(a)(44)(C) 
of the Act. 
A. Duties 
When examining whether a Beneficiary will be employed in a managerial 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 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. 
The Petitioner filed the Form I -140 in September 2014, claiming that the Beneficiary would perform 
"[e]xecutive financial duties," oversee the entire operation, manage cash f1ow, and hire and fire 
employees. In a corresponding supporting statement, the Petitioner provided a longer list of the 
Beneficiary's proposed job duties, indicating that the Beneficiary would create and ensure the 
implementation of policies and procedures that are in sync with the company's objectives, review 
sales and distribution data and reports generated by subordinate staff, review completed and pending 
deliveries for timeliness, assume financial, sales, and safety responsibilities, "[h ]andle[] logistical 
organization of the day-to-day operations," and "[ c ]oordinate[] the organization to increase 
efficiency." The Petitioner stated that the Beneficiary has "substantial knowledge" in Jaws related to 
the import and export of products through its Mexican parent company. 
Upon determining that the petition may have been approved in error, the Director issued a NOIR, 
noting that the submitted job description was overly general and did not list the Beneficiary's 
specific daily tasks. The Director instructed the Petitioner to provide a more detailed job description 
listing the Beneficiary's job duties and the percentage oftime he would allocate to each task. 
In response, rather than elaborating on the Beneficiary's duties at the time of tiling, the Petitioner 
provided a statement dated March 2016 listing the job responsibilities that were "currently" 
applicable to the Beneficiary's position. The Petitioner, which had 28 employees at the time of 
tiling, had 41 employees at the time of the NOIR response, and the updated job description provided 
the Beneficiary's duties following the expansion in staffing. We note, however, that the Petitioner 
must establish that all eligibility requirements for the immigration benefit have been satisfied from 
the time of tiling and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Therefore, while the 
10 
Matter of VRPT-, Inc. 
job duties the Beneficiary was carrying out at the time the NOIR was issued are relevant for 
determining the Petitioner's continued eligibility once primary eligibility at the time of tiling has 
been established, the Petitioner's response to the NOIR did not enhance our understanding of the job 
duties the Beneficiary was assigned at the time o.ffiling. 
However, we note that the March 2016 position description listed various responsibilities that the 
Beneficiary would "continue" to carry out, thereby indicating that these responsibilities were 
inherent to the proposed position when the petition was filed. Namely, the Petitioner stated that the 
Beneficiary would continue to be responsible for daily management of the organization, which 
would include managing department managers and employees and creating and ensuring proper 
implementation of policies and procedures. The Petitioner also stated that the Beneficiary would 
continue to be responsible for making discretionary decisions, including hiring and firing personnel, 
making other personnel changes, and enforcing the policies and procedures he creates. 
In revoking the approval of the petition, the Director concluded that the Petitioner did not overcome 
the issues raised in the NOIR, where he found that the Petitioner provided a vague job description 
that did not disclose the Beneficiary's specific job duties. We note that specifics are clearly an 
important indication of whether a beneficiary's duties are primarily managerial in nature, otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. Fe din Bros. Co .. Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.ff'd, 905 F.2d 41 (2d. Cir. 1990). The actual 
duties themselves reveal the true nature of the employment. !d. 
In the present matter, the Petitioner's statement on appeal merely reiterates portions of the NOIR 
response, focusing primarily on the Beneficiary's current job duties as of 2016 and paraphrased 
portions of the statutory definition of managerial capacity. The Petitioner does not elaborate on the 
Beneficiary's broadly stated job responsibilities or list specific tasks that the Beneficiary was 
expected to perform when the petition was filed. 
Reflecting on the Beneficiary's job description, which was included in the original supporting 
statement, we note that the Petitioner did not specify the types of tasks involved in assuming 
responsibility for the Petitioner's finances, sales, and safety, handling its "logistical organization," or 
"coordinat[ing] the organization." -The Petitioner did not explain the degree of the Beneficiary's 
proposed involvement in its sales activities, leaving us unable to determine whether the Beneficiary 
would perform managerial duties related to sales or actually carry out the sales function. The 
Petitioner also did not explain the Beneficiary's specific role and job duties associated with "safety" 
within the context of its business. 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. 8 C.F.R. § 204.5(j)(5). The Petitioner has not provided sufticient 
detail or explanation of the Beneficiary's activities in the course of their daily routine. 
Further, while the Petitioner stated that the Beneficiary would oversee and manage others, it 
provided inconsistent claims as to the number of subordinates he would oversee and the position 
titles they hold. Namely, on the fourth page of the supporting statement, the Petitioner indicated that 
11 
Matter of VRPT-. Inc. 
the Beneficiary would directly oversee five employees: a general manager, a safety supervisor, a 
preventative maintenance supervisor, traffic, and administration. However, page six of the same 
document contains different information, listing four, rather than five, employees, and providing 
position titles that were not entirely consistent with those listed on the fourth page of the statement. 
Namely, on the sixth page of the statement, the Petitioner indicated that the Beneficiary would 
oversee a general/office manager, a DOT/FMCSA safety supervisor and accounts receivable clerk, a 
traffic supervisor, and a preventative maintenance supervisor: The Petitioner did not explain why 
the original list of subordinates made no mention of an accounts receivable clerk or an oftice 
manager. The Petitioner must resolve these inconsistencies in the record with independent, objective 
evidence pointing to where the truth lies. Ho, 19 J&N Dec. at 591-92. 
Here, the evidence submitted in response to the NOIR addressed the various personnel changes that 
have taken place since the petition was filed but did not address the inconsistencies in the initial 
evidence. As such, we are unable to determine specifically whom the Beneficiary managed at the 
time of filing, which, as discussed further below, detracts from our ability to establish whether the 
Beneficiary's job duties involved managing supervisory, professional, or managerial employees. 
Section 101(a)(44)(A)(ii) ofthe Act. 
Given the overall "lack of a comprehensive job description specifying the Beneficiary's actual job 
duties, the Petitioner has not established that the Beneficiary's job duties would involve primarily 
managerial tasks. 
B. 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 tire 
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 
tasks. Inherent to both a function and a personnel manager is that the employing entity has the 
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Matter of VRPT-, Inc. 
necessary support staff to relieve the Beneficiary from having to primarily perform the 
organization's operational and administrative functions. 
In the present matter, the Petitioner claimed 28 employees at the time of filing. In support of the 
petition, the Petitioner provided an organizational chart· depicting the Beneficiary at the top of a 
hierarchy with a manager, a DOT manager, a traffic supervisor, and a preventative maintenance 
supervisor listed as his immediate subordinates. The remainder of the chart included three 
mechanics reporting to the preventative maintenance supervisor, two dispatchers reporting to the 
traffic supervisor~ eight "OTR Drivers," and ten local drivers reporting to the dispatchers. The 
Petitioner also provided job descriptions for the following positions: office manager, safety and 
accounts receivable clerk, traffic dispatcher, diesel mechanic, and commercial truck driver. Despite 
the fact that the organizational chart did not indicate that the Petitioner was subdivided into separate 
departments, each of the provided job descriptions listed a designated department for the position 
and identified a supervisor for the employee. 
We note that there were several discrepancies between the organizational chart and the information 
contained in the employee job descriptions. First, the job descriptions indicated that the organization 
employs a safety and accounts receivable clerk, a position that the organizational chart did not list. 
The same job description indicated that the direct report of the safety and accounts receivable clerk 
· would be the office manager, a position that has no direct reports shown on the organizational chart. 
Similarly, the job descriptions for traffic dispatcher and diesel mechanic positions indicate that both 
would report to the office manager, which, the organizational chart depicted as having no direct 
subordinates, while indicating that the dispatchers would report to the traffic supervisor, while the 
three mechanics would report to the preventative maintenance supervisor. 
As a result of this conflicting information about the manager's position, it is unclear whether the 
manager was a bonafide supervisory or managerial position when the petition was filed. Based on 
information in the organizational chart, despite the respective position titles of the manager and the 
DOT manager, neither occupied a managerial or supervisory position, as neither position was 
depicted as overseeing any subordinate employees. Although a beneficiary is not required to 
supervise personnel, if a petitioner claims that a beneficiary's duties involve supervising employees, 
then that petitioner must establish that the subordinate' employees are supervisory, professional, or 
managerial. See section 101(a)(44)(A)(ii) of the Act. Further, the record does not contain sufficient 
evidence to establish whether any of the Beneficiary's subordinates are professional employees. 10 
10 
In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. q: 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the Act, states that ''[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries.'' Therefore, we must focus on the ievel of education required by 
the position, rather than the degree held by subordinate employee. The possession of a bachelor's degree by a 
subordinate employee does not automatically lead to the conclusion that an individual is employed in a professional 
capacity. 
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Matter of VRPT-, Inc. 
Further, as mentioned above, the Petitioner did not provide consistent information establishing 
precisely whom the Beneficiary was expected to manage based on the organizational hierarchy that 
was in place when the petition was filed. The Petitioner's initial statement 
contained internally 
inconsistent information regarding the number of employees reporting to the Beneficiary and thdr 
job titles and identified employees - including an administrative position, a safety supervisor, and an 
accounts receivable clerk - who did not appear in the initial organizational chart. Also, we note that 
while the Petitioner submitted a job description for the individual said to occupy the position of 
"DOT/MFCSA Safety Supervisor and Accounts Receivables Clerk," this job description did not 
include any duties associated with accounts receivable. 
In issuing the NOIR, the Director specifically. mentioned a number of the above discrepancies, 
focusing on inconsistencies between the organizational chart, the Petitioner's supporting statement, 
and employee job descriptions that accompanied the chart. Although the Director expressly 
instructed the Petitioner to address and resolve these inconsistencies, the NOIR response did not 
mention the said inconsistencies and or include evidence to address them. 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)(14). 
Here, the Petitioner did not provide evidence that the Director expressly requested to address a 
material issue concerning the nature of the Beneficiary's proposed position. Moreover, failure to 
provide the requested evidence leaves existing inconsistencies unresolved and precludes us from 
conducting a comprehensive analysis of the Beneficiary's position within the context of the 
Petitioner's staffing composition at the time of filing. See Ho, 19 I&N Dec. at 591-92. Information 
about the Petitioner's support staff and the duties they perform is critical, as it allows us to determine 
whether the Beneficiary oversees supervisory, professional, or managerial subordinates, and gain a 
meaningful understanding of the extent to which subordinate employees would relieve the 
Beneficiary from involvement in non-managerial duties. While the Beneficiary is not required to 
allocate 100% of his time to managerial-level tasks, the Petitioner must establish that any operational 
or administrative functions 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 capacity. See section 
101(a)(44)(A) ofthe Act. 
Here, the Petitioner has documented its employment of workers to provide the company's 
transportation services, but it has not consistently or adequately documented who performs other 
operational tasks such as sales. Such evidence is material because the Petitioner stated that the 
Beneficiary will assume sales responsibilities and did not specifically define the managerial nature 
of those responsibilities. The Petitioner did not claim at the time of tiling to have any dedicated 
sales staff. The Petitioner initially submitted a description for which indicated that 
she occupied the position of "General Manager/Office Manager," and spent some portion of her time 
on sales activities, although the position appeared to be primarily focused on administrative tasks. In 
response to the NOIR, the Petitioner provided a new description for the "office manager" position, 
14 
Matter of VRPT-, Inc. 
but this version did not include any sales duties. The Petitioner has not shown that it had stafi to 
relieve the Beneficiary from performing non-managerial sales functions. 
Further, given that the Petitioner provided inconsistent information as to its staffing composition, we 
cannot determine whether the Petitioner staffing at the time of filing was sufficient to support the 
Beneficiary in a position where he would primarily focus on overseeing a staff of supervisory, 
professional, or managerial employees, or otherwise perform primarily managerial duties. We agree 
with the Director's determination that the evidence is insufficient to establish that the Beneficiary 
would be employed in a managerial or executive capacity pursuant to the instant petition. 
IV. PRIOR APPROVALS 
We note that US CIS has approved other petitions that the Petitioner previously filed on behalf of the 
Beneficiary, including nonimmigrant petitions granting him L-1 A classification as an intracompany 
transferee in a managerial or executive capacity. We are not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 597 (Comm 'r 
1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987). 
Furthermore, we are not be bound to follow a contradictory decision of a service center. La. 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
Each nonimmigrant petition filing is a separate proceeding with a separate record and a separate 
burden of proof. In making a determination of statutory eligibility, USCIS is limited to the 
information contained in that individual record of proceeding. 8 C.F.R. § 103.2(b)(l6)(ii). Based on 
the evidence contained in the record that pertains to this petition and for the reasons discussed, the 
Director properly revoked the approval of this immigrant petition. 
V. CONCLUSION 
For the reasons discussed above, the approval of the petition remains revoked. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fVRPT-, Inc., ID# 10379 (AAO Sept. 14, 2017) 
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