dismissed L-1A Case: Agriculture

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF K-S-A-CORP. DATE: NOV. 29, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a breeder, producer, and marketer of seeds and cultivars, seeks extend the Beneficiary's 
temporary employment as its chief executive officer under the L-1A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 
8 U.S.C. § 1101(a)(l5)(L). The L-1A classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to 
work temporarily in an executive or managerial capacity. 
The Director, California Service Center, denied the petition concluding that: (1) the Petitioner did 
not establish that it has a qualifying relationship with the Beneficiary's employer abroad; and (2) the 
Beneficiary would not be employed in the United States in a managerial or executive capacity. 
The matter is now before us on appeal. In support of its appeal, the Petitioner disputes the Director's 
grounds for denial, asserting that the Director's decision was factually and legally incorrect. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge 
capacity. ld. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) ofthis section. 
Matter of K-S-A-Corp. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the 
opening of a new office, may be extended by filing a new Form I-129, accompanied by the 
following: 
(A) Evidence that the United States and foreign entitles are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l )(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a 
management or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
II. QUALIFYING RELATIONSHIP 
The first issue to be addressed in this decision is whether the Petitioner established that it has a 
qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, the Petitioner must show 
that the Beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. 
2 
(b)(6)
Matter of K-S-A-Corp. 
one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 10l(a)(l5)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
The pertinent regulations at 8 C.F.R. § 214.2(l)(l)(ii) define the term "qualifying organization" and 
related terms as follows: 
(G) QualffYing organization means a United States or for_s.ign firm , corporation, or 
other legal entity which: 
(1) Meets exactlr one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (1)( I )(ii) of this section; 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization housed 
in a different location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent 
owns, directly or indirectly, more than half of the entity and controls the 
entity; or owns, directly or indirectly, half of the entity and controls the entity; 
or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has 
equal control and veto power over the entity; or owns , directly or indirectly, 
less than half of the entity, but in fact controls the entity. 
(L) Affiliate means 
(1) One of two subsidiaries both of which are owned and controlled by 
the same parent or individual, or 
(2) One of two legal entities owned and controlled by the same group 
of individuals , each individual owning and controlling 
approximately the same share or proportion of each entity. 
A. Evidence of Record 
The Petitioner filed the petition on December 2, 2015. On the L Classification Supplement to 
Form I-129, the Petitioner identified the Beneficiary's last foreign employer as 
a Taiwan entity, and stated that the U.S. entity is an affiliate of the foreign entity based on 
the following description of the stock ownership and control of each company: 
3 
(b)(6)
Matter of K-S-A-Corp . 
[The Petitioner] is [a] 100% wholly owned and controlled subsidiary of 
In which is in turn a legal entity owned and controlled by the same 
group of [eight] individuals as [.] 
In support of the petition , the Petitioner provided a cover letter signed by its 
human resources manager , explaining that the same eight shareholders who own more than 50% of 
the equity interest and who control the foreign entity also own and control more than 50% of 
which owns and controls 100% of the Petitioner. 1 In other words, the Petitioner 
claims that by virtue of its parent entity and the Beneficiary's foreign employer being owned and 
controlled by the same eight people, the foreign employer and the Petitioner are also affiliates. In 
support of this claim, the Petitioner provided the following evidence: 
1. The foreign employer's translated registration form of changes of stock corporation, 
showing , in part, that the foreign entity issued all 16,200,000 of its authorized shares. 
2. The foreign entity ' s list of directors , supervisors, and officers. The document listed a 
total of ten shareholders owning a total of I 0,386,986 shares. The Petitioner did not 
explain or provide evidence to show who owns the remaining 5,813,014 shares, 
which, together with the 10,386,986 shares issued to ten shareholders, would total the 
16,200,000 issued shares. 
3. register of shareholders naming a total of 13 shareholders - nine 
corporate shareholders and their respective representative~ and three individual 
shareholders. The register also lists the number of shares assigned to each 
shareholder and the percentage of ownership held. Of the nine named shareholder 
representatives, six were named shareholders on the foreign entity's "List of 
Directors , Supervisors , and other Officers. " 
4. A self-generated chart diagram naming the eight shareholders that .are claimed to be 
common to the Petitioner's foreign parent entity and the Beneficiary's foreign 
employer. The chart shows that the eight shareholders, together , own 50.81% of the 
latter entity and 55.14% of 
5. One "Certificate of Incumbency" and five "Register of Members " listing ownerships 
for six out of nine of corporate shareholders. It is noted that the 
named shareholder representative for each of these six corporate shareholders is a 
direct owner ofthe entity owing shares in 
6. The Petitioner ' s 2014 corporate tax return, complete with Schedule G, identifying the 
Beneficiary ' s foreign employer- - as owner of 100% of 
the Petitioner ' s voting stock. 
After reviewing the record, the Director issued a request for evidence (RFE), stating that the 
evidence submitted does not establish that a qualifying relationship exists between the Petitioner and 
the Beneficiary's foreign employer. The Director noted that the Petitioner ' s submissions do not 
establish that the Beneficiary ' s foreign and U.S. employers are owned and controlled by a common 
1 We note that the Petitioner submitted evidence of its ownership by 
4 
Matter of K-S-A-Corp. 
parent entity, as required to meet the first prong of the definition for the term "affiliate." The 
Director further noted that the Petitioner does not meet the second prong of the definition because 
the Beneficiary's foreign and U.S. employers are not owned and controlled by the same group of 
shareholders, as the Petitioner claims. 
In response to the RFE, the Petitioner provided a statement claiming that the Petitioner fits the 
second prong of the definition for "affiliate" by virtue of being majority owned and controlled by the 
same shareholders who it claimed ultimately own and control over 50% of the equity shares in the 
Beneficiary's foreign employer. The Petitioner cited case law to support its reasoning and further 
referred to a legal memorandum to support the contention that the Director should defer to the prior 
determination, which was made with regard to the Petitioner's previously filed L-1 petition and was 
premised on facts similar to those proposed in the matter at hand. 
The Director denied the petition, concluding that the Petitioner did not submit sufficient evidence to 
establish that it meets either prong in the definition of the term "affiliate." The Director rejected the 
Petitioner's claim that its indirect ownership by the same eight individuals who directly own and 
control the Beneficiary's foreign employer can result in an affiliate relationship between the two 
entities, given that second prong of the definition of "affiliate" does not provide for indirect 
ownership. The Director went on to say that even if indirect ownership was an acceptable means of 
establishing an affiliate relationship, the Petitioner would still fall short of meeting the regulatory 
definition because the foreign entity has ten shareholders while the petitioning entity has 14 indirect 
shareholders by virtue of being a wholly-owned subsidiary of an entity that is directly owned by 14 
shareholders. The Director concluded that where one entity has ten shareholders and the other entity 
has 14 shareholders, despite any shareholders the two·. entities may have in common, such two 
different ownership schemes would not result in an affiliate relationship. 
On appeal, the Petitioner maintains its prior claim, asserting that it is an affiliate of the Beneficiary's 
foreign employer by virtue of being majority owned and controlled by the same group of individuals. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the ·appeal, we conclude that the Petitioner has not established that it has a qualifying relationship 
with the Beneficiary's foreign employer. 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. See Matter of Church Scientology Int '1, 19 l&N Dec. 
593 (BIA 1988); see also Matter of Siemens Med. Syss., Inc., 19 I&N Dec. 362 (BIA 1986); Matter 
of Hughes, 18 I&N Dec. 289 (Comm'r. 1982). In the context of this visa petition, ownership refers 
to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the 
establishment, management, and operations of an entity. Matter of Church Scientology Int 'l, 19 I&N 
Dec. at 595. 
5 
(b)(6)
Matter of K-S-A-Corp. 
As a preliminary matter, we hereby withdraw the portion of the Director's analysis that focuses on 
the distinction between direct and indirect ownership as a dispositive factor in determining whether 
an affiliate relationship exists between the Petitioner and the Beneficiary's foreign employer. Given 
that the regulation at 8 C.F.R. § 214.2(l)(l)(ii)(L)(2) is silent as to the issue of direct versus indirect 
ownership, we find that, if properly documented, a qualifying relationship may be established based 
on a claim of indirect ownership. In other words, an affiliate relationship can result from an 
ownership scheme where the same individuals who directly own and control the shares of one entity 
ultimately own and control approximately the same share of the other entity through indirect 
ownership. 
In light of the above, we will focus on the second part of the Director's analysis, where he expressly 
addressed the ownership schemes of the Beneficiary's foreign and U.S. employers and determined 
that the two entities do not have an affiliate relationship because they are not ultimately owned by 
the same group of individuals with each individual owning and controlling approximately the same 
share or proportion of each entity. See id. Namely, the Director observed that while the Petitioner 
provided evidence that shows the foreign entity as being owned by ten shareholders, the evidence 
regarding the Petitioner's ownership shows that it has 13 shareholders with indirect ownership of the 
Petitioner by virtue of their ownership of the parent entity that wholly owns the Petitioner.2 
As demonstrated in the Petitioner's originally submitted documents, the Petitioner and the 
Beneficiary's foreign employer do not have the same number of shareholders. In fact, according to 
the information reflected in the foreign employer's registration form of changes of stock corporation 
the foreign entity issued a total of 16,200,000 shares of its stock, of which only 10,386,986 shares 
were accounted for in its list of directors, supervisors, and officers, thereby indicating that the 
remaining 5,813,014 shares were issued to an unknown number of additional shareholders, whose 
respective identities (if multiple shareholders) or identity (if a single shareholder) are/is unknown as 
this information was not included in the foreign entity's list of directors, supervisors, and officers. 
Further, as indicated in register of shareholders, the Petitioner's parent entity has 
nine corporate and four individual shareholders, for a total of 13 direct shareholders. The Petitioner 
provided additional documents that identify the owners of six of the nine corporate shareholders. 
Further review of the additional documents that pertain to the ownership breakdown of the s1x 
corporate shareholders shows that there are at least sixteen known individual shareholders3 (in 
2 It appears that the Director detennined that the Petitioner has 14 shareholders on the basis of 
"Registry of Shareholders:' which lists the shareholders in numerical order with the first shareholder listed as No. I and 
the last shareholder listed as No. 14. However, a more in-depth review of the document shows that No. I 0 was skipped 
in the numerical order, thereby resulting in what appears to be a typographical error, as the list seemingly indicates that 
there are 14 shareholders even though only 13 shareholders were actually listed. As this error does not alter the outcome 
of our decision, it is merely noted for the record and need not be further addressed. 
3 The Petitioner provided a "Register of Members" for 
showing two shareholders; 
showing six shareholders; 
showing two shareholders. 
6 
showing two shareholders; 
showing two shareholders; 
showing two shareholders; and 
(b)(6)
Matter of K-S-A-Corp. 
addition to the four direct individual shareholders) who indirectly have respective ownership 
interests in the Petitioner's parent entity, and thereby also have indirect ownership 
interests in the Petitioner. This further increases the number of shareholders who indirectly own the 
Petitioner; only seven of the individual shareholders who have ownership in one of 
corporate shareholders are common to both and the Beneficiary's foreign employer. 
Given that the Petitioner did not provide ownership documents for three remaining 
corporate shareholders - and 
-or for,the owner(s) of the remaining 5,813,014 shares of the 
foreign entity, the actual degree of common ownership between the Petitioner and the Beneficiary's 
foreign employer is ultimately unknown. Without full disclosure of this critical information, we 
cannot make a final determination as to who actually owns and controls the Beneficiary's two 
employers, either directly or indirectly. We are therefore precluded from affirmatively finding that 
the degree of common ownership between the Petitioner and the Beneficiary's employer abroad rises 
to the level of an affiliate relationship. See 8 C.F.R. § 214.2(l)(l)(ii)(L)(2). While the Petitioner 
generated a chart listing the eight owners that it claims to be common to both entities, the chart in 
itself cannot be deemed as sufficient evidence, particularly when the information it offers is 
inconsistent with other evidence on record. If USCIS finds reason to believe that a fact stated in the 
petition is not true, USGIS may reject that fact. See, e.g., Section 204(b) of the Act, 8 U.S.C. 
§ 1154(b); Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop. Inc. v. 
Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). 
We further point to the added inconsistency between the Petitioner's claims regarding its ownership 
and Schedule G of the Petitioner's 2014 tax return, which indicates that the Beneficiary's foreign 
employer is the Petitioner's sole owner and thereby indicates that the foreign employer and the 
Petitioner have a parent-subsidiary relationship, rather than the affiliate relationship described in the 
Petitioner's cover letters and other supporting documents. The Petitioner has not resolved this 
inconsistency with independent, objective evidence pointing to where the truth lies. See, Matter (~l 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
On appeal, the Petitioner cites Sun Moon Star Advanced Power, Inc. v. Chappel, 773 F. Supp. 1373 
(N.D. Cal 1990), asserting that two companies may be affiliated even though they are not owned by 
the exact same individuals. In the Sun Moon Star decision, the Immigration and Naturalization 
Service (now USCIS) refused to recognize the indirect ownership of the petitioner by three brothers 
owning shares of the company as individuals through a holding company. The decision stated that 
the two claimed affiliates were not owned by the same group of individuals. The court found that 
the original decision was inconsistent with previous interpretations of the term "affiliate" and 
contrary to congressional intent because the decision did not recognize indirect ownership. Prior to 
the adjudication of the Sun Moon Star petition, legacy Immigration and Naturalization Service 
amended the regulations so that the definition of"subsidiary" recognized indirect ownership. See 52 
Fed. Reg. 5738, 5741-2 (February 26, 1987). Accordingly, the basis for the court's decision has 
been incorporated into the regulations. Further, aside from the amended regulation and the decision 
in Sun Moon Star, neither legacy Immigration and Naturalization Service nor USCIS has accepted a 
combination of individual shareholders as a single entity, so that the group may claim majority 
7 
\. 
Matter of K-S-A-Corp. 
ownership, unless the group members have been shown to be legally bound together as a unit within 
the company by voting agreements or proxies. Such evidence has not been provided to support the 
instant petition. 
To establish eligibility in this case, the Petitioner must show that it and the foreign employer share 
common ownership and control. As the Petitioner states in its appeal brief, control may be "de jure" 
by reason of ownership of 51 percent of outstanding stocks of the other entity or it may be "de facto" 
by reason of control of voting shares through partial ownership and possession of proxy votes. 
Matter of Hughes, 18 I&N Dec. 289. 
In this case the record does not provide evidence disclosing all of the shareholders who have 
interests in the foreign employer and the Petitioner. As such, the record lacks the fundamental 
information necessary to compare the ownership of the two entities in question and determine 
whether the Sun Moon Star decision is applicable to the matter at hand. In light of the incomplete 
record, which lacks relevant evidence pertaining to the ownership of the Beneficiary's foreign and 
U.S. employers, we cannot conclude that the companies are affiliates as the Petitioner claims. 
In addition, while the Petitioner argues that we must defer to the decision made with regard to its 
previously filed L-1 petition, which the Petitioner claims was approved based on the same set of 
circumstances and factual assertions, we note that each nonimmigrant and immigrant petition is a 
separate record of proceeding with a separate burden of proof; each petition must stand on its own 
individual merits. USCIS is not required to assume the burden of searching through previously 
provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. Further, prior nonimmigrant approvals do not preclude USCJS 
from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 
2004 WL 1240482 (5th Cir. 2004). 
Moreover, if the previous nonimmigrant petition was approved based on the same unsupported 
assertions that are contained in the current record, the approval would constitute material and gross 
error on the part of the Director. 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, e.g. Matter of Church Scientology International, 19 J&N Dec. 593, 597 (Corum. 
1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
Finally, our authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the Beneficiary, we would not be bound to follow the contradictory decision of 
a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), a.ff'd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Therefore, based on the deficiencies and inconsistencies discussed above, the Petitioner has not 
established that it has a qualifying relationship with the foreign entity. 
Matter of K-S-A-Corp. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The other issue to be addressed in this decision is whether the Petitioner provided sufficient evidence 
to establish that the Beneficiary would be employed in the United States in a managerial or executive 
capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
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 if no 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. 
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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "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 and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
9 
Matter of K-S-A-Corp. 
In the present matter, the Petitioner's initial cover letter included a description of the Beneficiary's 
proposed position, indicating that the Beneficiary would manage existing contracts and develop new 
business consistent with the business plan, oversee the operation of the organization, s.erve as the 
Petitioner's representative, recruit and train employees as necessary, maintain customer 
relationships, increase the Petitioner's market share through brand exposure, develop and implement 
a marketing plan, and track market trends for the purpose of expanding the company. The Petitioner 
also provided an organizational chart depicting the Beneficiary at the top of the hierarchy with four 
employees - a bookkeeper, a warehouse specialist, and two account executives - as his direct 
subordinates. The chart also shows that the Petitioner is looking to fill two additional account 
executive positions. Directly below the organizational chart, the Petitioner provided a list naming all 
employees, their respective salaries, and educational levels. The Petitioner indicated that the 
position of "Assistant to President/Human Resource Manager/Bookkeeper" would be assigned to a 
single individual. 
In the RFE, the Director informed the Petitioner that additional evidence was needed to establish that 
the Beneficiary's proposed position in the United States would be in a managerial or executive 
capacity. The Director asked the Petitioner to specify what managerial or executive job duties the 
Beneficiary would perform daily and the percentage of time he would allocate to each job duty. 
In response, the Petitioner provided a statement claiming that the Beneficiary "is responsible for 
creating, communicating, and implementing the vision, mission and direction ofthe U.S. company." 
The Petitioner also provided the following list of job duties and time constraints: 
75% OVERSEE/DIRECT U.S. SUBSIDIARY BUSINESS DEVELOPMENT 
ACTIVITIES 
• Organize meetings with board· of directors in connection with business 
development matters aimed at the North America region[.] 
• Act as Chief Liaison with International Sales Department regarding North 
America regional sales activity[.] 
• Oversee the review and analysis of market trend information ·and preparation of 
related reports[.] 
• Analyze sales trends and oversee preparation of related reports to company 
executives[.] 
• Work with a team of professional sales and marketing personnel in connection 
with developing and implementing complex product promotion programs for 
specific U.S. customer base[.] 
• Manage budgeting activities including ratio of expenses to revenue to fund new 
U.S. subsidiary operations in North America Region[.] 
• Develop business model for creation of U.S. subsidiary business operations[.] 
• Direct market background research and analysis to identify potential North 
America region customers[.] 
• Monitor product sales performance in North America region to ensure compliance 
with [the Petitioner's] financial goals[.] 
10 
Matter of K-S-A-Corp. 
15% MANAGE INVESTMENT RISK AND PROFIT ASSESSMENT 
• Assess and evaluate worldwide market trends, new market development costs and 
returns[.] 
• Select distributor sponsorship plans, select trial seeds[.] 
• Coordinate important field visits and provide product field technical support to 
distributors[.] 
• Oversee field data regarding distributor compliance with company distribution 
policies[.] 
• Recommend action against distributor not in compliance with company policies to 
ensure stable distribution network worldwide[.] 
10% NAFTA REGIONAL TRADE CONFERENCE REPRESENTATION 
• Attend trade conferences to represent [the foreign entity and the Petitioner]lin 
North America region[.] 
• Direct Marketing Department in the development of innovative marketing 
materials for North America regional trade presentation[.] 
• Coordinate presentation materials and act as Chief Liaison with attendees in 
connection with new and existing business development in the North America 
regional market[.] 
The record shows that the Petitioner provided the same job description in its original supporting 
statement indicating that the Beneficiary performed the same set of job duties from April 2014, the 
year the Petitioner was established, to January 2016, thereby indicating that the Beneficiary has 
performed the same job duties from the time of the Petitioner's initial phase of operation through the 
present time, making no distinction between the beginning phase of operation and the current phase. 
We also note that the Petitioner did not comply with the RFE, which expressly asked the Petitioner 
to assign time constraints to the Beneficiary's individual tasks. Instead, the Petitioner assigned a 
percentage of time to each of three broad categories - oversee/direct U.S. subsidiary business 
development activities, manage investment risk and profit assessment, and NAFTA regional trade 
conference representation - without indicating how much time the Beneficiary would allocate to 
individual job duties, some of which cannot be readily deemed as executive. For instance, while the 
Petitioner claimed that the Beneficiary would "[ w ]ork with a team of professional sales and 
marketing personnel," the Petitioner has not established that any of the Beneficiary's direct 
subordinates warrant the classification of a professional employee. As the Director properly noted, 
the Petitioner has not established that baccalaureate degrees are actually required for any of the 
positions within the Petitioner's organization. Even though both of the Petitioner's account 
executives have baccalaureate degrees, the Petitioner has not established that such degrees are 
11 
Matter of K-S-A-Corp. 
necessary for either individual to carry out their assigned tasks.4 We further note that neither of the 
Beneficiary's two remaining subordinates- the bookkeeper and the warehouse specialist- possesses 
a baccalaureate degree, thus indicating that neither is a professional employee. As no time 
constraints have been assigned to any of the Beneficiary's individual job duties, it is unclear what 
percentage of his time the Beneficiary would allocate to overseeing nonprofessional subordinates. 
The Petitioner also indicated that the Beneficiary would attend trade conferences, which, on its face, 
appears to be an operational marketing task designed to promote the Petitioner's products. Given 
that the Petitioner has not identified any employees who would carry out marketing-related tasks, it 
is reasonable to assume that the Beneficiary would be directly involved in meeting the Petitioner's 
marketing needs. That said, despite the claim that the Beneficiary would oversee the development of 
marketing materials, the Petitioner provided no evidence to establish that it has a marketing 
department to perform the marketing tasks. A petitioner's unsupported statements are of very 
limited weight and normally will be insufficient to carry its burden of proof~ particularly when 
supporting documentary evidence would reasonably be available. See Matter of So.ffici, 22 I&N 
Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft o_(Cal., 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)); see also Matter o_(Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Matter o_(Chawathe, 
25 I&N Dec. at 376. 
Further, a number of the items listed within each of the three categories are overly vague and lack 
the degree of detail necessary to convey a meaningful understanding of the specific task performed 
and the nature of that task. 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), aff'd, 905 F.2d 41 (2d. Cir. 
1990). For instance, the Petitioner stated that the Beneficiary would "[ o ]versee the review and 
analysis of market trend information and preparation of related reports." Given that the Beneficiary 
is only tasked with oversight of the review and analysis process, it stands to reason that someone 
other than the Beneficiary would be tasked with actually conducting the review and analysis. Here, 
the Petitioner did not identify who would carry out either of these activities or who would create the 
"related reports." Similarly, while the Petitioner stated that the Beneficiary would "[a]nalyze sales 
trends and oversee preparation of related reports to company executives," it did not identify which 
"company executives" are involved in such review. This statement is particularly confusing, given 
that the Petitioner has not claimed anyone other than the Beneficiary as a company executive. The 
Petitioner also did not clarify who would actually conduct the research to establish the sales trends or 
specify who would create the "related reports" conveying such information. 
4 In evaluating whether the Beneficiary's subordinates are professional employees, we must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. 
§ 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate degree or its 
foreign equivalent is the minimum requirement for entry into the occupation"). Section IOI(a)(32) of the Act, 8 U.S.C. 
§ II 0 I (a)(32), 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." 
12 
Matter of K-S-A-Corp. 
Next, while the Petitioner claimed that the Beneficiary would develop a business model for 
conducting business, it is unclear how this represents a daily task. Rather, it appears that this general 
job responsibility is comprised of various components or tasks that the Beneficiary would perform 
daily in an effort to devise a business plan; the Petitioner did not clarify what those underlying tasks 
would be such that would establish their executive nature. The Petitioner also did not specify the 
means by which the Beneficiary would "[m]onitor product sales performance," how he would 
"[a]ssess and evaluate" regional market trends, or what underlying considerations and actions are 
involved in the Beneficiary's selection of distributor sponsorship plans and trial seeds. With regard 
to the latter responsibility, it is unclear how the information is gathered in order for the Beneficiary 
to make his selection as to distributor sponsorships and trial seeds or what specific role the 
Beneficiary assumes with regard to the unknown tasks. 
After reviewing the Petitioner's submissions, the Director concluded that the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity. In denying 
the petition, the Director found that the Petitioner did not establish that the Beneficiary's 
subordinates are professional employees or that the Petitioner has the organizational complexity to 
'support the Beneficiary in an executive position. 
In general, when examining the managerial or executive capacity of the Beneficiary, we will look 
first to the Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's 
description of the job duties must clearly describe the duties to be performed by the Beneficiary and 
indicate whether such duties are in a managerial or executive capacity. !d. 
The definitions of managerial and executive capacity each have 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 managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCJS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World. Inc. v. INS, 940 F.2d 1533. 
Further, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 1 01 (a)( 44 )(C) of the Act. 
As discussed above, the Beneficiary's job description is deficient in that it is comprised, in part, of 
vague claims that do not specify the Beneficiary's actual daily tasks or clarify who, if not the 
Beneficiary, would actually carry out operational tasks, such as marketing, tracking marketing and 
sales trends, or compiling reports reflecting those trends. The Petitioner's statements regarding the 
Beneficiary's job duties indicate that rather than directing the management of the organization, the 
Beneficiary would be required to directly perform certain underlying operational tasks based on the 
needs of an understaffed organization. As indicated above, the Petitioner has not provided a 
percentage breakdown specifying how much time the Beneficiary plans to allocate to individual job 
duties and establishing that the Beneficiary's time would primarily involve the performance of 
13 
Matter of K-S-A-Corp. 
managerial- or executive-level tasks; nor does the record indicate that the Petitioner was adequately 
staffed at the time of filing to relieve the Beneficiary from having to allocate his time primarily to 
operational tasks. 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 or executive 
capacity. See also, sections 101(a)(44)(A) and (B) ofthe Act (requiring that one "primarily" perform 
the enumerated managerial or executive duties); Matter of Church Scientology International, 19 
I&N Dec. 593, 604 (Comm'r 1988). 
Further, the statutory definition of the term "executive capacity" focuses on a person's elevated 
position within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 10l(a)(44)(B) of the 
Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate level of managerial employees for a beneficiary to direct 
and a beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as the 
owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization." !d. 
In the instant matter, the Petitioner's organizational chart, the Beneficiary's job description, and the 
L 
job descriptions and educational levels of the Beneficiary's subordinates indicate that the Petitioner's 
organization lacks the tiers of personnel that would elevate the Beneficiary's proposed position to an 
executive level. Despite the subordinate employees depicted in the Petitioner's organizational chart, 
this evidence does not establish that the Beneficiary's position is within a complex organizational 
hierarchy with a subordinate level of managerial employees for the Beneficiary to direct. In other 
words, the Petitioner has not provided sufficient evidence to show that it has the infrastructure to 
support the Beneficiary in an executive capacity. As noted earlier, the Petitioner's references to 
"company executives," "a team <;>f professional sales and marketing personnel," and a marketing 
department are not corroborated by the evidence of record. As stated previously, a petitioner's 
unsupported statements are of very limited weight and normally will be insufficient to carry its 
burden of proof, particularly when supporting documentary evidence would reasonably be 
available. See Matter of So.ffici, 22 I&N Dec. at 165. 
On appeal, the Petitioner points to the Beneficiary's direction of business development, his 
management "of the entire U.S. operation," and his discretionary authority over matters concerning 
the Petitioner's personnel and its daily business activities. We find that these assertions are not 
supported by the evidence of record as discussed in the above analysis. 
The Petitioner also offers an alternate claim that was not previously raised, indicating that the 
Beneficiary's position meets the statutory criteria of managerial capacity. The Petitioner asserts that 
"high level Human Resources personnel obtain a business degree in human resources as a 
14 
Matter of K-S-A-Corp. 
prerequisite to employment." We note, however, that based on the information that the Petitioner 
provided, the Petitioner's human resources employee does not possess a degree in human resources 
and in fact does not possess educational credentials beyond a high school diploma. Similarly, while 
the Petitioner claims that its warehouse specialist is employed in a "technical and delicate" industry, 
there is no evidence to establish that the job duties to be performed by this individual are those of a 
professional employee. The Petitioner has not established that a baccalaureate degree is required to 
perform the job duties of any of the Beneficiary's subordinates. Moreover, the record shows that 
two of those subordinates do not possess such degrees, despite the Petitioner's claim that positions 
within its organization require a degree in agriculture. 
In general, the same rational we used to dismiss the Petitioner's claim based on the definition of 
executive capacity can be similarly applied to the Petitioner's new claim, which is based on the 
statutory definition of managerial capacity. As discussed above, the Petitioner has not provided an 
adequate job description or supporting evidence of an adequate support staff to establish that it 
currently has the need and ability to relieve the Beneficiary from having to perform primarily 
operational tasks. Neither the job descriptions of the Beneficiary and his subordinates, nor the 
Petitioner's staffing structure indicate that the Beneficiary would devote his time primarily to tasks 
within a managerial capacity. We acknowledge that 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 petition for classification as a multinational manager or executive. See section 101(a)(44)(C) of 
the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for USCIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as the absence of employees 
who would perform the non-managerial or non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See, e.g. Family Inc. 
v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d at 15. 
Furthermore, the Petitioner's reasonable needs, which may be driven by its lack of sufficient support 
personnel, will not supersede the Petitioner's burden of having to establish that it has the ability to 
support the Beneficiary in a managerial capacity such that the primary portion of his time would be 
spent performing managerial, rather than operational, tasks. 
Therefore, despite the Petitioner's new claim on appeal, which relies on the definition of managerial 
capacity, the Petitioner has not submitted sufficient evidence to establish that the Beneficiary meets 
the four prongs of either the definition of managerial or executive capacity and for this additional 
reason the instant petition cannot be approved. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 
2013 ). Here, that burden has not been met. 
15 
Matter of K-S-A-Corp. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-S-A-Corp., ID# 59735 (AAO Nov. 29, 2016) 
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