remanded EB-1C Case: Retail

MATTER OF P-W-S- lNC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 23, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITlON FOR ALIEN WORKER 
The Petitioner, a cell phone and accessories retailer, seeks to permanently employ the Beneficiary as 
its chief operating officer 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. § l 153(b)(l)(Cr 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 Nebraska Service Center denied the petition concluding that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in an executive capacity. The 
Petitioner filed a motion to reopen, which the Director granted and determined that the Petitioner did 
not overcome the ground for denial. The Director therefore issued a new decision denying the 
petition. 
On appeal, the Petitioner disputes the Director's decision, arguing that the decision was not based on 
the correct legal requirements and evidence in the record. 
Upon de novo review, we find that the Director did not offer an adequate analysis of the evidence 
submitted so that the Petitioner was afforded a fair opportunity to contest the decision and to allow a 
meaningful appellate review. Therefore, we will remand the matter for further proceedings 
consistent with our discussion below. 
l. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three· years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or 
executive capacity, and seeks to enter the µnited States in order to continue to render managerial or 
executive services to the same employer or to its subsidiary or affiliate. Section 203(b)(l )(C) of the 
Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive· capacity for at least one year in the three years 
preceding the filing of the petition, that the beneficiary is coming to work in the United States for the 
Maller of P-W-S- Inc. 
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. BASIS FOR REMAND 
As noted e~rlier, we find that the Director's decision did not adequately explain the deficiencies in 
the evidence. See 8 C.F.R. § 103.3(a)(1 )(i); see also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) 
(finding that a decision must fully explain the reasons for denying a motion to allow the respondent a 
meaningful opportunity to challenge the determination on appeal). As the Petitioner points out on 
appeal, the Director incorrectly applied elements of the definition of managerial capacity, despite the 
Petitioner's claim that the Beneficiary would be employed in an executive capacity. More 
specifically, the Petitioner points out that the Director associated the instant immigrant visa 
classification with "organizations that have a cadre of professionals" where "executives and 
managers ... primarily oversee the work of professionals." The Petitioner also contends that despite 
the Director's reference to "basic minimum requirements" regarding staff: there are no regulations or 
legal precedents allowing the Director to impose staffing level requirements within the context of 
this visa classification. In light of the above, the Petitioner disputes the propriety of the Director's 
finding that it "operates a small scale retail operation, where the minimum of a bachelor's degree is 
not required to be a phone sales person." 
We agree with the Petitioner and find that the Director incorrectly applied elements of the definition 
of managerial capacity to the Beneficiary's proposed position, despite the fact that overseeing 
subordinates who are professionals is not an element of a claim that is based on the definition of 
executive capacity. We also find that the Director emphasized the size and scope of the Petitioner's 
operation to the exclusion of a balanced analysis that includes a discussion of the Beneficiary's job 
description. 
Notwithstanding the Director's lack of a complete analysis, the record is currently insufficient to 
establish that the Beneficiary would be employed in an executive capacity, as claimed. Namely, we 
find that the Petitioner's response to the· request for evidence contains a deficient job description 
which lacks adequate content and therefore does not convey a meaningful understanding of the 
actual daily tasks the Beneficiary would perform within the scope of the Petitioner·s retail operation. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co .. lid. v. 
Sava, 724 F. Supp. I 103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Although the 
Petitioner claims that it had four fully staffed retail operations so that it was able to relieve the 
Beneficiary from having to perform non-executive job duties at the time of filing, it does not provide 
a detailed delineation of the Beneficiary's job duties to establish precisely what she would be doing 
within the scope of this retail operation. 
Further, despite claiming that its four retail operations were adequately staffed at the time of filing, 
the Petitioner did not provide sufficient evidence to support this claim. Rather, it provided wage 
evidence that appears to contain partial salaries and wages; however, we cannot properly assess this 
information without knowing employees' hiring dates and dates of termination --where applicable. 
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Maller of P-W-S-Inc. 
. . 
Full disclosure of this relevant staffing information would allow us to gauge which positions were 
filled and how the Petitioner was meeting its staffing needs at the time of filing. Accordingly, the 
record does not include sufficient evidence to show that the Petitioner's organizational hierarchy, at 
the time of filing, was adequately complex and could support the Beneficiary in a position where she 
would devote her time primarily to directing the management of the organization and focus on the 
broad goals and policies of the organization rather than the day-to-day operations of the enterprise. 
The Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of filing and continuing through adjudication. 8 C.F.R. § 103.2(b )(I). That 
includes evidence to demonstrate that the Petitioner is sufficiently staffed and able to relieve the 
Beneficiary from having to allocate her time primarily to non-executive tasks. 
The definition of executive capacity has two parts. First, the Petitioner must show that the 
Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. INS, 940 F.2d 
1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). ·Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See. e.g., Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. The record as presently constituted 
does not meet these criteria. 
In addition, we note that there is some conflicting evidence regarding the Petitioner's ownership and 
con.trol, which may point to a finding of ineligibility based on the lack of a qualifying relationship 
between the Petitioner and the Beneficiary's employer abroad. The Petitioner states that it and the 
Beneficiary's foreign employer are affiliates by virtue of being majority o'wned by the same 
individual - Although the Petitioner provided evidence to show 
ownership of the foreign entity, Schedule G of the Petitioner's amended 2016 tax return contains a 
conflicting ownership breakdown, which accounts for more than 100% of its stock, thereby creating 
a factual impossibility that precludes us from being able to determine the Petitioner's ownership. 
More specifically, schedule G of the amended tax return listed three owners - with a 51 % 
ownership share and and the Beneficiary, each with a 49% ownership share. Not only is 
this ownership breakdown factually impossible, it also conflicts with the Petitioner's corporate 
resolution, which indicates that owns I 02 shares of its stock while the 
Beneficiary and own 78 shares and 20 shares, respectively. Thus, the proportions 
of ownership and identity of the third shareholder are not consistently conveyed in the supporting 
documents. The Petitioner must resolve these incongruities in the record with independent, 
objective evidence pointing to where the truth lies. Malter of Ho, 19 l&N Dec. 582, 591-92 (BIA 
1988). 
III . CONCLUSION 
Although the Petitioner did not submit sufficient evidence to meet its burden of establishing that the 
Beneficiary will be employed in an executive capacity and that it has a qualifying relationship with 
the Beneficiary's foreign employer, the Director's decision did not adequately analyze the facts of 
the matter and apply the law. As the Director did not satisfy this condition, we will remand the 
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Matter of P-W-S- lnc. 
matter for entry of a new decision. The Director should request any additional evidence deemed 
warranted and allow the Petitioner to submit such evidence within a reasonable period of time. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter qf P-W-S- Inc., ID# I 740476 (AAO Nov. 23, 2018) 
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