dismissed EB-1C Case: Window And Door Manufacturing

(b)(6)
Date: 
SEP 2 5 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S . Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Cit:izenship 
and Immigration 
Services 
I FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your c~se. · 
ThiS is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-pteceden:t deCisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consider;1tion, you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on ~Notice of Appeal ot Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form 1•290B instructioos at 
· http://www.usds.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 1 03.5. Do not file a motion direCtly with the AAO. 
Thank you, 
i/L--
f-Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa petition. The matter is ·now 
before the Administrative Appeals Office (AAO) on appeaL TheAAO will dismiss appeal. 
The petitioner filed this immigrant petition to classify the beneficiary as a multinational executive or manager 
pursuant to sec;tion 203(b )(1 )(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l )(C). 
The petitioner, a Texas c_orporatiort, st~.tes that it operates a,s a window and door manufacturer and distributor 
with six current employees and a gross annual income of $534;699. The petitioner seeks t9 employ the 
beneficiary as its operations manager. 
The director denied the petition concluding that the peti.tioner failed to establish that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
The petitioner subsequently filed an appeaL The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the peOtioner objects to the director's determination 
tha.t the· beneficiary's job description is vague and non-specific, and contends t!tat the petitioner provided a 
sufficient description of the beneficiary's duties to establish that he will perform primarily managerial tasks. 
Counsel submits a brief and duplicate copies of evidence already cc,mtained in the record in support of the 
appeaL 
I. THE LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. An alien is described 
in this subparagrapll if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least I year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language Of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firril, corporation or other legal entity, ot an a.ffiljate ()r Sl!bsidiary of that entity, 
and who ate coming to the Unite<;t States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of art alien under Section 
203(b)(l)(C) of._ the Act as .a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United ~tates mus.t furnish a job offer in the form of a 
(b)(6) NON-PRECEDENT D£C!SJON 
~age 3 
statement, which indicates that the alien is to be employed in the United. St(!.tes in a manageriai or executive 
capacity. Such a statement must clearly describe the duties to be performed ~y the alien. 
Section 101 (a)(44)(A) of the Act, 8 O.S.C. §'l!Ol(a)(44)(A), provides: 
The term "manageriai capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the · 
organization, or a department or subdivision of the organization; 
(iii) if another employee or oth~r e~ployees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the frt.nction managed; and 
(iv) 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 I Ol(a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B), provides: 
The term ''executive capacity'' means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
Of the organization;. · 
(ii) establishes the goals aild policies of the otgailiz(ltion, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-m(lking~ and . 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or st6ckholders of the organizatio~. 
(b)(6) NON-PRECEDENT DECISION 
Page4 
II. THE ISSUE ON APPEAL 
The sole issue addressed by the direct.or is whether the petitioner est;1blished that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
The petitioner flied the Form I~140, Immigra,ntPetition for Alien Worker, on August 17, 2012. In support of 
the petition, the petitioner submitted a letter describing the beneficiary's position i_n the Un'ited States as 
follows: 
The company transferred [the beneficiary] to the United States to take charge of the new 
company's operations in February 2()11. ' 
As the otg(lniziltional chart demonstrates, [the beneficiary] works directly under the 
President. The · organizational chart cleatly confirrils his position within the executive and -
management hienirchy of this organization; [The beneficiary] is responsible for 
implerneht~ng ·the organization's development and operations strategy on an international 
level. In this regard, he is responsible for planning, directing and cootdinaHng all operations 
acti~ities for both the U.S. and Mexico companies. He is required to ensure achievement of 
profit!lble revenue goals and a continual improvement in customer satisfaction. 
As the President of this organization, I am often required to travel back and forth frolll 
_Mexico and the U.S. to oversee my companies. In my absence, [the beneficiary] has full 
authority and control over the U.S. Compa_ny. He htt.s full a11thority to h_ire a:nd fire and has 
complete discretionary authority in ~~! matters pertaining to the organization. He is required 
to set and monitor job goals for our work staff and other support personnel; as well as 
devising operation and production strategies to achieve our goals. 
The breakdown of [the beneficiary's] executive/managerial and non-managerial duties is as 
follows: · 
Man(lgement Duties: 75% 
o Carry out operations responsibilities in accordance with the otganization's p!)licies 'and 
applicable laws. 
• Responsibilities include interviewing, hiring, and training employees; 
• Plan, assign, a.nd direct work; 
• Appraise performance; 
• Reward and discipline employees; 
o Address complaints and resolve problems; 
o Inspect finished products for conformance to specifications 
• Study production scheo_ules;and estim,;1te worker hollr requirements for completion ofjob 
assignment; 
• Interpret company policies to workers and enforces safety regulations; 
(b)(6)
Page 5 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
0 
• 
NON-PRECEDENT DECISJOj 
Interpret specifications and job orders to workers, and assign duties; 
Establish and adjust work procedures to meet production schedules; 
Recommend measures to improve production methods, equipment to increase efficiency 
of work crew; 
Analyze and resolve work problems, or as,sist workers in solving work problems . 
Initiate or suggest plans to motivate workers to achieve work goals; 
Maintain tim.e and production records; 
Estimate, requisition, and inspect mat~rials . 
Holds daily meetings with his shop manager 
Attenqs weekly meetings with Owner to discuss company operations 
Analyze company operating IJudgets and jdentify areas in which reductions can be made, 
and allocate operating budgets. 
Direct and coordinate activities of [the petitioner] which concern production, pricing, 
sales, of dis.tribution of the company's products. 
Review financial statements, sales afid activity reports, and other performance da.ta to 
measure productivity and goal achievement and to determine areas needing coSt 
reduction and program improvement. 
Monitor customer preferences to determine focus of production efforts . 
Non-Executive Managerial: 25% 
• Attend trade shows and represent comp:my 
• Maintains a commitment to the company vision 
• Establish Web 'strategy by researching, analyzing, and defining customer requirements; 
aild identifying target custorn.ers. 
o Ensure customer satisfaction 
• Resolve customer complaints regarding sales and 
service[.] 
{The beneflciary]ls required to keep abreast of all hew regulations a.nd changes in law which 
can have an impact on our production decision making, manufacturing and processing. 
Additionally, numerous factors in the economy can affect our decision making. [The 
beneficiary] is required to keep in tune with all economic changes. 
[The beneficiaryl directs a;nd ovetsees the production staff through his Production/Shop 
Manager, 
* * * 
The Production/Shop Manager oversees four shop laborers .... 
Please note that we will be hiring an additional manager for out Garage Door distribution 
operations within the next 6 months. This individual will work under the management of [the · 
beneficiary]. 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
* * * 
[The beh~fici(\ry] contitnjes to have full discretionary authority of our company's day to day 
operations. He reports directly to me, the owner of the company. 
The petitioner provided an undated organizational chart for the U.S. company, depicting as 
president, superv1smg as "administrator/bookkeeper" and the beneficiary as "operations 
manager." The chart indicates that the beneficiary, as the operations manager, supervises a "distribution 
man(lger," but notes that this person is "to be transferred.'' the distribution manager 
supervises a "sbop rrianaget," who supervises a "shop foreman," who then 
supervises a "shop laborer,'' 
As evideli(;e of wages pa_id to its employees, the petitioner submitted its IRS Form 94 I, Employer's Quarterly 
Federal tax· Return, for the second quarter of 2012, and an-Employee Earnings Record showing weekly 
earnings for all employees between May 1 and July 18, 2012. The petitioner reported C1 total of seven 
employees on the Form 941. Based on the Employee Earnings Record, the petitioner employed the followi"ng 
staff as of July 2012: t.he beneficiary, 
and . One additional employee, also named receive<f wages in May and 
June 2012. 
The petitioner provided a brief list of job duties for the president, administrator/bookkeeper, distribution 
manager, shop manager, shop foreman, shop laborer, and operations Ii1<~.miger (the benefiqiary). The 
· bendiciary's duties were described, in part, as follows: 
; 
A) Make sure tha.t the qonstruc~ion of the glass and vinyl building is running according to 
schedule. And [k]eep owner inforrried of any delays or problems wbich might arise. 
10% 
B) Through the shop foreman, will also oversee the crew in the welding and installation 
department which is currently functioning. 10% 
C) Until a full crew is hired, he will be responsible for interviewing aiid hiring the necessary 
temporary personnel for window installation projects; 30% ' 
D) Develop processing schedules based on projected number of windows to be built; 
develop budgets and expenditures and ·confer with owner on same; Analyze staffing 
requirements and tespon_sibilities related to business needs and forecasts; Monitor the 
company's performance and prepare rep<>rts for parent company. as well as plan for 
changes to schedules and policies; set operation policies and standards, including 
determination of safety procedures for the handling of goods and ensure compliance with 
transport regulations. 40% 
E) Liaise with warehouse worker with regards to inventory and delivery of finished 
produ_cts. 5% 
Through his subordinate worker (shop foreman, provide a continuously safe and healthy 
work place and environment [sic]. Through the shop foreman, he will . insure [sic] that 
the window installations are being done. to order and as pet the customers' instructions. 
5% 
(b)(6) NON-PRECEDENT DECISION 
Page 7 
On January 24, 2013, the director issued a request for additional evidence ("RFE") in which he irtstructed the 
petitioner to submit a definitive, detailed statement from the U.S. company describing the beneficiary's duties, 
the percentage of time he spends on each dl!ty, the number and types of subordinates he supervises, and their 
· job <;luties and education levels ~ The director further observed that the evidence showed a "tenuous 
connection'' between the beneficiary's managerial position and the petitioner as his name and signature did not 
appear on the company's legal doc1,1inents or invoices, the company's bank account, or copies of proposals and 
estimates given to customers, etc. 
In response to the RFE, the petitioner submitted a letter specifically describing the beneficiary's d1,1ties as 
follows: 
Martagement 
Duties: 
[The beneficiary] is required to direct and coordi.nate activities of [the petitioner] which 
concern production, pricing, sales, & distribution of the company's products. 
• Interview workers when necessttty. Through Foremen, plan, assign; and direct work; 
appraise performance. Interpret specificatiortS aild job orders to workers, and assign 
I 
duties. 15% 
• Reward and discipline employees; address complaints and resolve problems; interpret 
company policies to workers and enforces safety regulations; 
analyze and resolve work 
problems. ot assist workers in solving work problems; initiate or suggest plans to 
motivate workers to achieve work goals. 20% 
• Inspect finished products for conformance to specifications; study production schedules 
and estl
1
mate worker hour requirements for completion ofjob assignment; maintain time 
and production records; estimate, requisition, and inspect lllaterials. Esta!Jiish and adjust 
work procedures to meet 
production schedules; recommend measures to improve 
production methods 
and equipment to increase efficiency of work crew[.] 30% 
• Holds daili meetings with his shop manager; attends weekly meetings with Owner to 
discuss company operations; review financial statements, sales and activity reports, and 
other performance data to measure productivity and goal achievement and to determine 
areas needing cost reduction and program improvement. 30% · 
• Monitor customer preferences to determine focus of production efforts. 05% 
The petitioner provided a brief list of job duties for the following subordinates: 
manager; shop manager; laborer; and 
distribution 
, warehouse coordinator. ----- · 
The petitioner provided a new, undated, organizational chart for the U.S. company, depicting 
as president, supervising a ''business operations manager" indicated ''to be hired.·~ . It appears that the proposed 
business operations manager position will supervise "sales representatives," also ''to be hired," . 
(b)(6) NON-PRECEDENT DECISION 
Page 8 
independent contractor/window installation and outside sales, , administrator, 
management cons1,1lta,nt; and the beneficiary as operations manager. administrator, 
supervises receptionist/secretary. The beneficiary, operations manager, supervises 
distribution manager, who supervises warehouse ; coordinator, and 
shop manager; who then supervises laborer. 
The petitioner submitted a print-out of its Texas Employer's Quarteriy Report for the third quarter of 20 12 .• the 
qua,rt~_r in which the petition was filed. fhe petitioner reported a total of..nine employees, including: 
and (the 
beneficiary). Two of these nine employees received less than $250 in wages during 
the quarter. 
On March 27, 2013, the director denied the petition concluding that the petitioner failed to est<!,blish that the 
. beneficiary will be employed in a primarily managerial or executive capacity in the United States. In denying 
the petition, the direct?r observed that the job descriptions provided for the beneficiary's position are general 
and broad and fail to convey an understanding of what the beneficiary would actually be doing on a daily 
basis. 
On appeal, counsel for the petitioner asserts that the beneficiary is employed 
by the petitioner in a managerial 
capacity. Counsel 'reitera~es the same list of job duties for the beneficiary previously submitted with the 
petition and in response to the RFE. The petitioner also submits a new otganizaJional chart and a decla,ration 
from counsel explaining the discrepancy in the number of current employees listed on the Form J-140. 
The new organizational chart depicts as president, supervising as 
the administrator/ 
The. beneficiary, as operations 
shop laborer, 
administrator/bookkeeper and the beneficiary as operations manager. 
bookkeeper, supervises two secretaries, and 
Q1<_tnager, supervises , shop manager, who supervises 
shop laborer, , shop laborer, and shop laborer. 
Upon review, and for the reasons discussed herein, the petitioner has not established that it will employ the 
beneficia,ry in a qualifying managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). A detaiied job description is crucial, as 
the duties themselves will reveal the true nature of the beneficiary's foreign and proposed employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.ffd, 905 F.2d 41 (2d. Cir. 1990). 
The AAO will then consider this information in light of other relevant factors, . including (but not limited tO) 
job descriptions of the beneficiary's subordinate employees, the nature of the business conducted by the 
entities in q11estion, the size of the subordinate staff of the entity in question, and any other facts contributing 
to a comprehensive understanding of the beneficiary's actual tole within the petitioning entity, 
The petitioner's description of the beneficiary's duties fails to establish that the beneficiary will be employed 
in a qualifying managerial or executive position. The ~titioner has not provided sufficient information 
d.etailing the beneficiary's duties at the U.S. company to demonstrate that these duties qualify him as a 
(b)(6)
) 
NON-PRECEDENT DECISION 
Page 9 
manager or as an executive. The petitioner provided two different lists of job duties at the time of filing, ~. nd 
stated that each list of duties accounts for 100% of the beneficiary's time. One of descriptions provided by the 
petitioner at the time of filing specifically identifies "management duties," to which the bene~iciary devotes 
75% of his time, and non-managerial duties, which take up the remaining 25o/o of.his time. The petitioner 
e:haracterized the beneficiary's role as operations manager and initially identified some of his "management 
duties'' as, ''plan, assign, ~nd direct work"; "appraise performance"; "address complaints and resolve 
problems"; "inspect finished products for ·conformance to specifications"; "interpret company policies to 
workers and enforce safety regulations"; "hold daily meetings with shop manager"; and ''direct and coordifi(lte 
activities of [the petitioner] which concern production, pricing, sales, or distribution of the company's 
products.'~ The petitioner identified his "nmFexecutive managerial" duties as, "attend trade shows and 
represent company"; "maintain a commitment to the company vision"; "establish Web strategy by researching, 
analyzing, and defining customer requirements; and identifying target custom~rs''; "ensure customer 
satisfactjon"; <1nd "resolve customer complaints .regarding sales and service~" 
When asked to submit a comprehensive description of the beneficiary's job duties., the petitioner rearranged 
the beneficiary's previously listed duties and allocated 100% of his time to the "management duJies" initialiy 
listed with the petition, The petitioner did not even reference the "non~executive managerial" duties 
previously listed as taking up 25% of the benefiCiary's time or the duties included in the second position 
description provided at the time of filing. The purpose of the request for evidence is to elicit further 
i(lfotrnation th;:lt clarifi.es whether eligibility for the benefit sought has been established. 8 C.P.R. § 
l03.2(b)(8). When responding to a request for evidence, a petitioner cannot offer ~ Qew position to the 
beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, or 
its associated job responsibilities. The petitioner must establish that the poSition offered to the beneficiary 
when the petition was filed merits classific4tion as a, man(lgerial or executive position. Matter of Michelin 
Tire Corp., 17 I&N Dec. 748, 249 (Reg. Comm;r 1978). The information provided by the petitio_rier in its 
response to the director's request for further evidence did not clarify or provide more specificity to the original 
duties of the position, but rather changed the initial percentage of time spent on the listed duties from 75 to 
I 00 and allocated specific percentages to each grouping of duties. The petitioner also provided a new 
organizational chart with additional subordinates not previously lis.ted at the time of filing. I_t is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will noLsuffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec .. 582, 591-92 (BIA 1988). 
In response to the RFE, the petitioner identifies each of these and othe~ listed tasks as managerial and 
concludes that the beneficiary spends 100% of his time on these tasks. However, the majority of the d.uties 
described in the record, which the petitioner states will account for more than half of the beneficiary's titne, 
. cannot be classified as manageriaL The petitioner indicates that the beneficiary devotes at least 60% of his 
time to non-qualifying operational duties, such as, "inter'view workers when necessary"; "through foremen, 
plan, assign, and direct work"; "appraise performance; "interpret specifications and job orders to workers, and 
assign duties''; "address complaints and resolve problems"; "interpret company poliCies to workers al1d 
eQforce· safety regulations"; . "analyze and resolve work problems, . or assist workers in soiving work 
problems"; "initiate or suggest plans to motivate workers to achieve work g()als''; !'inspect finished products· 
for conformance to specifications"; "study production schedules and estimate worker hour requirements for 
completion of job assignment"; "estimate, requisition, and inspect materials"; and "monitor customer 
(b)(6) NON-PRECEDENT DECISION 
Page 10 
preferences to determine focus of production efforts." The petitioner indicates that the beneficiary is actually 
responsible for performing the majority ofthe day-to-day tasks associated with first-line supervision of non­
professional workers in the manufacturing and warehouse departments of the b(Jsiness. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), affd , 905 F.2d 41 (2d. Cir. 1990). 
Whi_le the AAO acknowledges that no beneficiary is required to allocate lOOo/o of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
would perform are only incidental to the proposed position. An employee who ''primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in a 
manag~rial or executive capacity. , See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
''primarily" perform tlie enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining , factor in denying a visa to a multimttional manager or executive. See § 10 I (a)( 44)(C) of the Act, 
8 U.S.C. § 1101(a)(44)(C). However, in reviewing the relevance of the number of employees a petitioner has, 
federal courts have generally agreed that USCIS "may properly consider an organization's small size as one 
factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. U.S. 
Citizenship and lmmig;ation Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing ~ith approval Republic of 
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) 
(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003) . Although the AAO does 
not find that the size of t.he petitioning entity served in any way as an obstacle to establishing eligibility, this 
factor can and should be considered for the purpose of determining who witl:ti_n the organization would be 
available to perform the necessary non-qualifying such that the beneficiary is relieved from having to allocate 
the primary portion of his time to tasks that are not within a qualifying managerial or executive capacity . 
Neither the petitioner's reasonable needs nor its stage of development can be used to justify a favorable 
finding when the petitioner is unable to establish that the beneficiary would spend his tirne primarily 
performing tasks within a qualifying capacity. 
Here, the petitioner has submitted three different organizational charts. The first or~anizational chart 
indicates that the beneficiary bas four subordi11ates, one of which was pending transfer from the foreign 
entity. The second organizational chart also indicates that -the benefiCiary has four subordinates, but some Qf 
the titles differ from the first chart. The third and final organizational chart'; submitted ·on appeal, indicat¢s 
that the beneficiary has five subordinate, and again, some titles have changed from the previous chart. 
Additionally, some of the job duties for the beneficiary's subordinates not only overlap with the beneficiary's 
listed duties, such as those relating to the supervision or management of lower-level staff, but have changed 
over time. For example, at the hme of filing the petition, the petitioner indicat.ed that the ''shop mafi<J.ger," 
devotes 35% of her time to supervision of lower-level employees, while it did not list any 
supervision duties for the "distribution manager," wbo was pending transfer from tile foreign entity. In 
response to the RFE, the petitioner indicates that ;'distribution manager" will devote 10% of 
his time to "supervise shop ernployee[s]," and 1 . shop manager, has a vague reference to 
"supervising shop helper" among her list of duties without any specific alloc.ation of time. It is inclirnbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
(b)(6) NON-PRECEDENT DECISION 
Page II 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including desctiptim1s of a beneficiary's dutie~ and his subordinate employees, the nature of the 
petitioner's business, the employment and rerimneratioh of eroploy~es, and any o!her f~cts contributing to a 
complete understanding of a beneficiary's actual role in a business. The evidence must substa,ntiate that the 
duties of the beneficiary and his subordinates correspond to their placement in an organization's structural 
hierarchy; artificial tiers of subordinate employees and inflated job titles are not probative and will not 
establish that an organization is sufficiently complex to support an executive or manager position. An 
individual whose primary duties are those of a first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
professional. Section 10l(a)(44)(A)(iv) of the Act. 
In the present matter, the tot;:tlity of the record does not support a conclusion that the beneficiary's 
subordinates . are supervisors, managers, or professionals. I.n.stead, the record indicates that the beneficiary's 
subordinates perform the actual day-to-day tasks of operating the window manufacturing business . The 
petitioner has not provided evidence of an or~anizational structure sufficient to elevate the beneficiary to a 
supervisory position that is higher than a first~line supervisor of non-professional employees. Pursuant to 
section 10l(a)(44)(A)(iv) of the Act, the beneficiary's position does not qua_lify itS primarily managerial or 
executive under the statutory definitions. 
As previously indicated, the petitioner has failed to establisn that the petitioner has reached a stage in its 
development such that it could relieve the beneficiary from having to priniatiiy carry ollt non-qualifying tasks. 
Notwithstanding t)Je beneficiary's placement within the petitioner~s hierarchy, the petitioner -has not 
established that the job duties to be performed in the proposed position would be primarily within a 
managerial or exe.cutive capacity. While the petitioner ha.s submitted a five-year business plan outlining the 
company's anticip~ted growth, the petitioner must establish eiigibility at the time of filing; a petition cannot 
be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). Accordingly, the appeal will be dismissed. 
III. CONCLUSION 
In visa petition proc_eedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
) 
ORDER: The appeal is dismissed.