remanded EB-1C Case: Travel Services

MATTER OF S-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 19, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an air ticket and tour service provider, seeks to permanently employ the Beneficiary 
as its operation executive officer under the first preference immigrant classification for multinational 
executives or managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ l 153(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 Acting Director of the Nebraska Service Center denied the petition, concluding that the record 
did not establish, as required, that the Petitioner has a qualifying relationship with the Beneficiary's 
employer abroad. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary's employer 
abroad is a branch office of the Petitioner and is therefore the same employer as the Petitioner. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for further 
proceedings consistent with our opinion and for the entry of a new decision. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(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 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. § 204.5(j)(3). 
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Maller ofS-T- lnc. 
II. QUALIFYING RELATIONSHIP 
The Director determined that the Petitioner does not have a qualifying relationship with the 
Beneficiary's employer abroad. Specifically, she found that the Petitioner was not a subsidiary or 
affiliate of the Beneficiary's employer abroad. 
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). 
On appeal, the Petitioner asserts that it operates a branch office in , South Korea, where the 
Beneficiary worked from August 2014 to March 2016. The Petitioner has established by a 
preponderance of the evidence that it is the same employer as the Beneficiary's employer abroad. 
Therefore, we will withdraw the Director's finding on this issue. However, for the reasons set forth 
below, we do not find the petition approvable. 
III. EMPLOYMENT IN A MANAGERIAL CAPACITY 
Although not addressed by the Director, the record does not appear to demonstrate that the 
Beneficiary will be employed in the United States in a managerial or executive capacity or that he 
was employed abroad in a managerial or executive capacity. 
A. U.S. Employment 
The Petitioner asserts that the Beneficiary will be employed in a managerial capacity as its operation 
executive officer, a position the Beneficiary has held since April 1, 2016. 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, and exercises discretion over 
the day-to-day operations of the activity or function for which the employee has authority. Section 
IO I (a)( 44 )(A) of the Act. 
With the petition, the Petitioner submitted a letter indicating that the duties and percentages of time 
devoted to the duties of the offered position. In a request for evidence (RFE), the Director advised 
the Petitioner that its description of the job duties was broad and ambiguous. The Director requested 
that the Petitioner submit additional evidence to establish that the Beneficiary will be employed in 
the United States primarily in a managerial or executive capacity. In response to the RFE, the 
Petitioner submitted a letter listing substantially similar duties to those initially submitted, but with 
different percentages of time devoted to the duties. However, this description did not provide 
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Matter ofS-T- Inc. 
additional clarity to the initial job description, and the changes in the job duty percentages have not 
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been explamed. · 
In the present matter, the Petitioner did not clearly define the Beneficiary's specific day-to-day job 
duties. Instead, it focused on his vague job responsibilities of supervising and directing the work of 
other managers without describing what that supervision would actually entail; directing undefined 
market research and analysis and unidentified promotional events; reviewing and signing an 
undefined plan; leading meetings to coordinate undefined work; and establishing unidentified goals 
and policies. Reciting a beneficiary's vague job responsibilities is not sufficient; _the regulations 
require a detailed description of a beneficiary's daily job duties. The actual duties themselves will 
reveal the true nature of the employment. 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). Additionally, the listed job duties.often 
describe his subordinates' operational duties instead of his own managerial duties. 
Further, although the Petitioner appears to assert that the Beneficiary will be a personnel manager, 
the eviden-ce is not sufficient to show that the Beneficiary is not a first-line supervisor of 
nonprofessional employees. See section 101(a)(44)(A) of the Act. Although the job titles of the 
Beneficiary's proposed subordinates suggest that the Beneficiary would oversee other managers or 
supervisors, the organizational chart does not reflect that any ofhis proposed subordinates would 
oversee subordinates of their own. Instead, the chart reflects that the Beneficiary directly oversees 
all 14 subordinates in the operation department. As such, the Beneficiary cannot qualify as a 
personnel manager on this basis. The record also does not appear to demonstrate that the employees 
to be supervised by the Beneficiary are professional employees. In determining whether a 
beneficiary manages professional employees, we must evaluate whether the subordinate positions 
require a bachelor's degree as a minimum for entry into the field of endeavor.2 Here, the Petitioner 
has not clarified whether the minimum requirement for the subordinate positions is at least a 
bachelor's degree and has not provided any evidence to establish that a bachelor's degree is actually 
necessary to perform the duties of any of the jobs listed in the organizational chart provided.3 
B. Foreign Employment 
The record also does not appear to demonstrate that the Beneficiary has been employed abroad for at 
least one year in a managerial or executive capacity. The Petitioner asserts that it operates a branch 
office in South Korea, where the Beneficiary worked as a representative director in a 
managerial capacity from August 2014 to March 2016. In the RFE, the Director advised the 
1 The Petitioner must resolve inconsistencies in the record with independent, objective evidence pointing to where the 
truth lies. Mauer <!f Ho, 19 l&N Dec. 582, 591-92 (BIA I 988). 
2 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 IO I (a)(32) of the Act, states that 
"[t]he tenn profession shall include but not be limited to architects, engineers, lawyers; physicians, surgeons, and 
teachers in elementary or secondary schools, colleges, academies, or seminaries." 
3 A petitioner bears the burden of establishing eligibility for the immigration benefit sought. Section 291 of the Act; 
Matter ofSkirba/1 Culfural Ctr., 25 l&N Dec. 799,806 (AAO 2012). 
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Matter ofS-T- Inc. 
Petitioner that its description of the Beneficiary ' s job duties was broad, ambiguous, and vague. The 
Director requested that the Petitioner submit additional evidence to establish that the Beneficiary 
was employed abroad primarily in a managerial or executive capacity . In response to the RFE, the 
Petitioner submitted a letter listing substantially similar duties to the initially described duties, but 
with different percentages of time devoted to the duties. This description did not provide additional 
clarity to the initial job description, and the changes in the job duty percentages have not been 
explained .4 · Similar to the description of the Beneficiary's U.S. duties, this broad and vague 
overview of the Beneficiary's responsibilities in South Korea does not establish that the Beneficiary 
was employed abroad for at least one year in a managerial capacity. Further, some of the claimed 
duties abroad reference but the role of that entity in the Petitioner's 
business in South Korea, and the Beneficiary's position with there, 
are unclear. 5 Specifics are 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 . Fedin Bros., 724 F. Supp . at 1108: 
With the petition, the Petitioner submitted an organizati?nal chart showing that the Beneficiary led 
its branch office in South Korea. is listed underneath the Beneficiru;-y on the 
chart , and the chart indicates that oversaw the sales & marketing division 
(managed by an assistant sales manager with two subordinates), the operation department (directed 
by a section chief with two subordinates) , and accounting & general affairs (directed by a section 
chief with no subordinates). It is not clear from the chart whether the Beneficiary directed those 
divisions on behalf of , and whether the Petitioner or 
employed and paid the subordinate employees. Given the ambiguities present in the record 
regarding the staff abroad and the general nature of the duties described, we cannot determine 
whether the Beneficiary was employed in a managerial capacity. 
IV. CONCLUSION 
The decision of the Director will be withdrawn . The matter is remanded to the Director for 
. consideration of whether the Beneficiary will be employed in a managerial or executive capacity in 
the United States, and whether the Beneficiary was employed abroad for at least one year in a 
managerial or executive capacity . The Director may request any additional evidence considered 
pertinent . Similarly, the Petitioner may provide additional evidence within a reasonable period of 
4 The Petitioner must resolve inconsistencies in the record with independent, objective evidence pointing to where the 
truth lies. Maller <lf Ho. 19 l&N Dec. at 591-92. 
5 The Petitioner's sole shareholder states that he owns I 00% of and that the Beneficiary 
was employed by the Petitioner in its branch office during the relevant period. He also asserts that 
. engages in sales and marketing activities that include directing consumers to the Petitioner's products , although 
there is no written agreement between the companies or other evidence in the record supporting this assertion . While the 
record establishes that the Beneficiary 's received a salary from the Petitioner 's branch office, it does not indicate if the 
Beneficiary also received a salary from for directing its management. Further, the record 
contains no evidence of any separate income, expenses, assets, or liabilities of the Petitioner's branch office. 
6 This entry appears to refer to a separate entity from the Petitioner . 
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Matter ofS-T- lnc. 
time to be determin1:d by the Director. Upon receipt of all the evidence, the Director will review the 
entire record and enter a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter(~( S-T- Inc., ID# 15668 I 3 (AAO Oct. 19, 2018) 
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