dismissed L-1A Case: Business Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-A-D-8- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 20, 2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a provider of administrative, financial, accounting, sales and tax services, seeks to 
continue the Beneficiary's temporary employment as its general manager 1 under the L-1 A 
nonimmigrant classification for intracompany transferees.2 Immigration and Nationality Act (the 
Act) section 101(a)(15)(L), 8 U.S.C. § I IOl(a)(IS)(L). The L-IA 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 a managerial or executive capacity. 
The Director of the Vermont Service Center revoked the approval of the petition, concluding that the 
record did not establish, as required, that: (1) the Beneficiary would be employed in a managerial or 
executive capacity under the-extended petition; and (2) the Petitioner is doing business as defined in 
the regulations. 
On appeal, the Petitioner asserts that the Director placed undue emphasis on an administrative site 
visit that resulted in the issuance of a notice of intent to revoke, and did not give proper weight to the 
documentary evidence in the record. The Petitioner maintains that it met its burden to establish that 
it is doing business and that the Beneficiary will be employed in a managerial capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
1 The Petitioner stated that the proffered position is "general manager" on the Form 1-129, Petition for a Non immigrant 
Worker, at part 5, and on the 1-129 L Classification Supplement in Section I. Subsequently, the Petitioner has identified 
the Beneficiary's position as vice president and financial director. 
2 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
September 29. 2015, until September 28. 2016. A "new office" is an organization that has been doing business in the 
United States through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(1)(1)(ii)(F). The 
regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office'' operation one year within the date of approval of the 
petition to support an executive or managerial position. 
Malter ofC-A-O-B- Corp 
admission into the United States. Section l0l(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 or executive capacity. Id. 
A petitioner seeking to extend an L-1 A petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). This evidence must demonstrate that the beneficiary will be employed in 
a managerial or executive capacity, as defined at sections 101(a)(44)(A) and (B) of the Act, under 
the extended petition. 
Under U.S. Citizenship and Immigration Services (USCIS) regulations, the approval of an L-1A 
petition may be revoked on notice under six specific circumstances. 8 C.F.R. § 214.2(l)(9)(iii)(A). To 
properly revoke the approval of a petition, a director must issue a notice of intent to revoke that 
. contains a detailed statement of the grounds for the revocation and the time period allowed for 
rebuttal. 8 C.F.R. § 214.2(1)(9)(iii)(B). 
II. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44){A) of the Act. 
The term "executive capacity" is defined as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(8) of the Act. 
Based on the definitions of managerial and executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
2 
Matter ofC-A-D-B- Corp 
lII. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director revoked the approval of the petition, in part, based on a finding that the Petitioner did 
not establish that the Beneficiary would be employed in a managerial' or executive capacity. The 
Petitioner initially characterized the position as executive in nature, but now claims on appeal that 
the Beneficiary will be employed in a managerial capacity, specifically as a function manager. We 
will address both claims. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required 
description of the job duties, we examine the company's organizational structure, the duties of a 
beneficiary's subordinate employees, the presence of other employees to relieve a beneficiary from 
performing operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. Accordingly, we will discuss 
evidence regarding the Beneficiary's job duties along with evidence of the nature of the Petitioner's 
business, its staffing levels, and its organizational structure. 
A. Duties 
At the time of filing in September 2016, the Petitioner stated that the Beneficiary would be 
employed as its general manager and provided a general description of her duties on the Form 1-129. 
The Petitioner noted that she would "be in charge of the overall and continued development of the 
company" and would be responsible for: coordinating financial and budget activities; conferring 
with board members officers and staff: analyzing operations to evaluate performance and determine 
areas for improvement or policy change; developing and implementing company strategy; 
supervising sales, operations; and administrative areas; developing policies for procurernent 
services; reviewing reports from staff members; and standing in for the president as necessary. 
The Petitioner also provided a cover letter which described the Beneficiary's position as executive in 
nature and emphasized that ~he formulates·policies, has "ultimate discretionary authority" to make 
necessary changes to the business and to reduce costs, and "performs only those executive 
functions." These initial descriptions of the role were overly broad, non-specific, and did not 
provide sufficient insight into how the Beneficiary would primarily spend her time on a day-to-day 
basis. The Petitioner did not provide examples of specific policies or strategies she was expected to 
develop and implement or explain any discretionary decisions she is expected to make. Moreover, 
given that the Beneficiary does not occupy the senior position in the company, it was unclear why 
the claimed executive-level duties would be assigned to her and not to the president of the company. 
Reciting the Beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the Beneficiary's daily job duties. The 
Petitioner did not provide any detail or explanation of the Beneficiary's activities in the course of her 
~ daily routine. 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), qfj"d, 905 F.2d 41 (2d. Cir. 1990). 
3 
Matter l?f C-A-D-B- Corp 
The Petitioner claimed five employees at the time of filing and stated that the Beneficiary Jett the 
daily non-executive tasks to "other employees," but did not provide an organizational chart or job 
titles and duties for her claimed subordinates in support of its claim that the new office had been 
sufficiently staffed during the first year of operations. See 8 C.F.R. § 214.2(1)(1)(14)(ii)(D). On the 
basis of this limited information and without a detailed position description or required evidence of 
staffing, the Director initially approved the petition for a two-year period. 
Subsequently, the petition was randomly selected for review through USCIS' Administrative Site 
Visit and Verification Program and an immigration officer visited the Petitioner's location in 
December 2016. The Director later issued a notice of intent to revoke in which she summarized the 
site visit, noting that no staff were present at the time the immigration officer was at the office. The 
Director also reviewed the existing record and found that it did not contain a sufficient description of 
the Beneficiary's duties, the Petitioner's staffing, or the duties performed by any subordinate 
employees. Accordingly, the Director provided a list of evidence that the Petitioner could provide in 
· support of its claim that the Beneficiary was employed in a managerial or executive capacity, 
including a detailed description of her specific duties and the percentage of time spent on each task, 
a description of specific discretionary decisions she has made, and any documentary evidence that 
demonstrates the scope of the Beneficiary's managerial or executive role and authority. 
In response to the NOIR, the Petitioner stated that the Beneficiary continues to hold "the managerial 
position of Vice President, Financial Director." The Petitioner stated that she spends 30% of her 
time (two to three hours daily) on "Financial Direction," but listed duties related to human resources 
and personnel management under this area of responsibility. Specifically, the Petitioner stated that 
the Beneficiary supervises a commercial director, is recruiting two professional consultants who will 
work under her supervision, has the authority to hire and fire personnel, and "accomplishes 
accounting human resource objectives by recruiting, selecting, orienting, training, assigning, 
scheduling, coaching, counseling, and disciplining employees." The Petitioner noted that the 
Beneficiary had terminated the employment of the company's former secretary, but did not provide 
documentation or additional examples in support of its claim that these human resources 
responsibilities would reasonably require 30% of the Beneficiary's time, particularly given the 
Petitioner's staffing levels. 
The Petitioner indicated that the Beneficiary spends an additional 20% of her time (up to two hours 
daily) on "Financial Management." The Petitioner stated that the Beneficiary's responsibilities in 
this regard range from paying bills and writing checks, to implementing productivity and customer 
service standards, to "contributing accounting information and recommendations to strategic plans 
and reviews prepared for clients." The Petitioner also noted that the Beneficiary reviews, edits, and 
approves all documentation prepared by "professional outsourced companies" and employees of the 
Petitioner's Colombian parent company. The Petitioner has not explained how these duties, which 
include contributing to and editing work products for customers and fairly routine administrative 
financial duties, qualify as managerial in nature, and it did not provide examples or documentation 
related to the customer service or quality standards she is claimed to have implemented. 
4 
Matter of C-A-D-B- Corp 
Finally, the Petitioner stated that the Beneficiary allocates a larger portion of her time (50% or four 
to five hours daily), to account management. The Petitioner stated that as "Financial Account 
Manager" the beneficiary is charged with: maintaining client relationships; reaching out to potential 
clients; serving as the primary company representative who communicates with clients, listens to 
each client to gain an understanding of their needs, and directs them to appropriate services; and 
managing client expectations during service delivery. In this regard, the Petitioner noted that the 
Beneficiary "spends a good portion of her time out of the office either recruiting new business, 
meeting with existing clients." The Petitioner further stated that she "represents the entire range of 
company products and services to assigned clients," and "'meets assigned targets for profitable sales 
volume," and "proactively assesses, clarifies, and validates clients' needs on an ongoing basis." 
Based on this description, the Beneficiary spends the majority of her time directly selling the 
Petitioner's services and serving as the primary customer relations contact within the company. 
While these duties are undoubtedly critical to the company's operations, the Petitioner has not 
established how these sales and customer service duties qualify as either managerial or executive in 
nature. Given that these operational activities would require at least half of the Beneficiary's time, 
the Petitioner did not meet its burden to establish that the actual duties of the position are primarily 
managerial or executiv~ in nature. 
The fact that the Beneficiary will manage or direct a business (or a function or component of a 
business) does not necessarily establish eligibility for classification as an intracompany transferee in 
a managerial or executive capacity within the meaning of section 10l(a)(44) of the Act. By statute, 
eligibility for this classification requires that the duties of a position be "primarily" executive or 
managerial in nature. Sections 101 (A)(44)(A) and (B) of the Act. While the Beneficiary may 
exercise discretion over some aspects of the Petitioner's day-to-day op~rations and possess the 
requisite level of authority with respecCto discretionary decision-making, the position description 
provided in response to the NOIR indicates that the Beneficiary's duties are primarily non­
managerial in nature. 
On appeal, the Petitioner claims that the Director mischaracterized the position by reterring to the 
Beneficiary as "general manager," asserting that the Petitioner "does not and has never employed the 
Beneficiary as a general manager." But, as noted, the Petitioner has in fact used the job titles of 
"general manager," "vice president" and "financial director" to refer to her position. The Petitioner 
also alleges that the Director "continues to harp on the office being closed on the site visit so the 
Beneficiary's job duties could not be verified." The Petitioner notes that the fact that the Beneficiary 
was not in the office at the time of the site visit is irrelevant, as her duties require her to meet with 
clients at their own locations. 
We emphasize that our finding that the Beneficiary's duties are primarily non-managerial and non­
executive in nature is based on the job duties as described by the Petitioner in response to the NOIR, 
and not on the fact that she was absent from the office at the time of the administrative site visit or 
based on her job title. As discussed, the Petitioner indicated that the Beneficiary spends at least half 
of her time on non-qualifying sales and customer service functions, and, as discussed further below, 
has not established that it has staff to relieve the senior employees from performing additional non­
qualifying functions required to provide financial and business consulting services to clients. 
5 
Matter of C-A-D-B- Corp 
Finally, we acknowledge that the Petitioner submits for the first time on appeal a copy of an offer 
letter signed by the Beneficiary for the position of "financial director/vice president," and a 
description of the "financial director" position. This description bears little resemblance to that 
provided for the same position in response to the NOIR. The Petitioner must resolve this 
inconsistency in the record with independent, objective evidence pointing to where the truth lies. 
Matter ~l Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). The new position description is not 
accompanied by any explanation that would account for the Petitioner's submission of two 
materially different position descriptions. 
The newly submitted list of duties is focused entirely on financial tasks, with no mention of client 
services or interactions, sales and business development, or oversight of subordinate stalI The 
description indicates that the Beneficiary develops financial statements and reports appropriate "for 
the users," develops internal financial and accounting policies, prepares supporting information for 
annual audits, documents and maintains records of financial transactions, maintains financial 
accounting systems, reconciles bank accounts, prepares budgets manages cash flow, maintains the 
general ledger payroll, and accounts payable and receivable, among other duties. 
After reviewing the totality of the evidence, and due to the lack of explanation for the submission of 
inconsistent position descriptions for the same job, we find that this newly-submitted description has 
limited probative value. Even if we determined that it accurately reflects the Beneficiary's actual 
duties, the duties described therein are not primarily managerial and appear to include tasks typically 
assigned to a professional accountant or financial analyst rather than to a managerial level employee. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act. 
The Petitioner states that it provides business and financial consulting services to small businesses 
and entrepreneurs. Its claimed services include preparing and reviewing bu.siness plans and cash 
flows, identifying and targeting new markets, identifying growth strategies, preparing for bank loans, 
analyzing financials, and providing other support services such as assisting with incorporation and 
start-up activities. At the time of filing in September 2016, it claimed to have five employees, 
including the Beneficiary, but it did not provide an organizational chart, employee job titles and job 
duties, or its latest payroll evidence. 3 The Petitioner indicated that it planned to hire four additional 
employees but did not provide any additional information regarding proposed staff. Further, the 
Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(1 ). 
3 The evidence submitted in response to the NOIR shows that the Petitioner actually had four employees at the time of 
filing. The fifth employee, who appears to have been employed as a secretary, earned $3000 in 2016 and was no longer 
employed in September of that year when the Petitioner filed this petition. 
6 
Matter ofC-A-D-B- Corp 
In the NOIR, the Director requested evidence of wages paid to employees, copies of employment 
agreements, and additional information regarding the nature of the employment for each current staff 
member. 
In response, the Petitioner submitted an organizational chart depicting the Beneficiary as 
"VP/Financial Director" reporting to the "General Manager/President." The chart depicts the 
Beneficiary's subordinates as a commercial director, three business consultants (employed by the 
Petitioner's parent company in Colombia), a marketing analyst (identified as an independent 
contractor), and a data analyst. The chart also shows a vacancy for a secretary position. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A) of the Act. Personnel managers are required to 
primarily supervise _and control the work of other supervisory, professional, or managerial 
employees. Contrary to the common understanding of the word "manager," the statute plainly states 
that a "first line supervisor is not considered to be acting in a managerial capacity merely by virtue 
of the supervisor's supervisory duties unless the employees supervised are professional." 4 Id. [fa 
beneficiary directly supervises other employees, the beneficiary must also have the authority to hire 
and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)(J). 
The submitted organizational chart did not depict any of the Beneficiary's subordinates as 
supervisory or managerial employees with their own subordinates. The Petitioner provided position 
descriptions for the commercial director and the part-time data analyst. The commercial director 
position description is not credible in light of the nature and scope of the Petitioner's business and its 
staffing structure. The submitted description describes the role as that of a "high level executive" 
responsible for directing marketing operations and overseeing "product development." The 
description states that this employee "maintains sales volume, product mix and selling price," 
'"implements national sales programs by developing field sales action plans," and "completes 
national sales operational requirements by scheduling and assigning employees." The Petitioner 
does not sell products and the record does not establish that it has a "national sales program," lower 
level sales employees, or any employees at all subordinate to the commercial director. 
4 To detennine whether a beneficiary manages professional employees. we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. CJ. 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 term pr(fession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
Therefore. we must focus on the level of education required by the position, rather than the degree held by subordinate 
employee. The possession of a bachelor"s degree by a subordinate employee does not automatically lead to the 
conclusion that an employee is employed in a professional capacity. 
7 
Matter ofC-A-D-B- Corp 
Therefore, while the record establishes that the Petitioner paid wages to the individual identified as 
its commercial director, it remains unclear what this employee actually does on a day-to-day basis . 
.The Petitioner did not show that she actually supervises subordinate staff or that her role is a 
professional position that requires completion of a bachelor's degree. As noted, the fact that the 
employee has a master of arts degree does not establish that she is employed in a professional 
capacity, and as discussed further below, the Petitioner did not provide sufficient information 
regarding the existence or roles of other subordinate employees and contractors to establish that the 
Beneficiary qualifies as a personnel manager based on her supervision of subordinate managers, 
supervisors, or professionals. 
The Petitioner provided a v~gue description for the "data analyst/entry operator" which provides 
insufficient infonnation regarding the employee's role with the Petitioner's financial and business 
consulting company. The Petitioner stated that he "prepares source data for entry by opening and 
sorting mail; verifying and logging receipt of data; obtaining missing data," and "records data by 
operating data entry equipment." The Petitioner did not establish that this employees holds a 
professional or supervisory position. 
The Petitioner claims that the Beneficiary has been supervising a marketing analyst who works as an 
independent contractor and is responsible for cold calling potential clients. As evidence of its 
engagement of this contractor, the Petitioner submitted a copy of a check for $67.50 paid to this 
individual as compensation for 4.5 hours of work. This single check is dated in April 2016 and does 
not support the Petitioner's claim that this contract position was part of its organizational structure at 
the time of filing or at the time of revocation. The Petitioner did not submit, for example, copies of 
IRS Forms l 099 issued to the marketing analyst which would support its claim that she is regularly 
engaged by the company. 
The Petitioner also claims that the Beneficiary's work is supported by two or three employees within 
.. the foreign parent company. The Petitioner submitted an organizational chart for the foreign entity 
and a letter from the foreign entity's representative stating that the company has "three full-time 
consultants which are bilingual in Spanish and English Language that assist in the preparation of 
business plans, agreement, and .financial documentation for the [Petitioner's] final review and 
approval." 
The Petitioner did not identify which foreign employees perform these duties, evidence of their 
interactions with the petitioning company, or evidence of any payments made to the foreign entity or 
its employees in exchange for these claimed services. Based on the submitted evidence, the foreign 
entity operates a call center with a manager who oversees three supervisors and three teams of 
telemarketing agents. Beyond the call center stan: the foreign entity has several administrative 
employees and a general accountant with two assistants. The evidence is insufficient to support the 
Petitioner's claim that any of these Colombia-based employees are actually dedicated to preparing 
business plans and other documents for its U.S. clients as claimed. The Petitioner has not submitted 
sufficient evidence to establish that the foreign staff assist the Petitioner with its day-to-day 
operations or remove the Beneficiary from involvement in non-executive duties required to provide 
the seJices of the company. 
8 
Maller of C-A-D-B- Corp 
The Petitioner also claims to engage "independent professional companies" as needed to undertake 
larger projects and prepare more complex reports and evaluations. The Petitioner emphasized that 
its tax returns show substantial expenses for professional and legal fees, but stated that it could not 
provide evidence such as "formal work contracts between the relative companies." It did not further 
explain why no contracts could be provided and did not submit additional evidence, such as copies 
of invoices, checks, wire transfers, or IRS Forms I 099 showing p.:_tyments to independent 
contractors. We acknowledge that the Petitioner's 20 I 6 tax returns shows $ I 55,726 paid in "legal 
and professional fees," but without additional evidence, we cannot determine who received these 
payments or what specific services they provided to the Petitioner. Further, we note that tax return 
was not signed and it is unclear that the copy submitted was a final version that was filed with the 
IRS. In fact; at the time of filing, the Petitioner had submitted a profit and loss statement which 
showed that the company had spent $ I 88,509 on professional fees in the first six months of the year, 
a number that is inconsistent with what the Petitioner indicated on its tax return. While the record 
contains partial copies of the Petitioner's bank statements for the same period of time, the pages 
submitted do not corroborate the large withdrawals for contractor or professional fee expenses. 
Notably, the Petitioner has not mentioned these "independent professional companies" on appeal and 
instead emphasizes that the foreign parent's employees prepare all business plans and other 
paperwork for the Petitioqer's clients. 
The Petitioner also claims that the Beneficiary "manages the essential functions of client and 
business development, personnel management and financial review of sophisticated legal documents 
in the Americas." The term "function manager" applies generally when· a beneficiary does not 
supervise or control the work of a subordinate staff but instead is primarily responsible for managing 
an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. If a 
petitioner claims that a beneficiary will manage an essential function, it must clearly describe the 
duties to be performed in managing the essential function. In addition, the petitioner must 
demonstrate that "(I) the function is a clearly defined activity; (2) the function is 'essential,' i.e., 
core to the organization; (3) the beneficiary will primarily manage, as opposed to per.fhrm, the 
function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with 
respect to the function managed; and (5) the beneficiary will exercise discretion over the function's 
day-to-day operations." Matter <~lG- Jnc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
As noted above, the Beneficiary's duties, as described in response to the NOIR, were not primarily 
managerial in nature. Even though she may perform critical duties with respect to business 
development, selling the company's services, handling client relationships, and contributing to the 
work product prepared for clients, the Petitioner has not shown that she primarily performs 
managerial duties in these areas rather than directly performing the non-managerial operational 
tasks. 
We reiterate that this finding is .not based on the observations made during the administrative site 
visit. Even if the Petitioner's full staff of four people had been on-site, this would not lead to a 
conclusion that the ·Beneficiary relies on subordinates or other employees to relieve her from 
performing non-managerial duties. One of the Petitioner's employees is senior to the Beneficiary, 
one is a part-time data entry employee, and one is a commercial director whose duties have not been 
9 
Matter of C-A-D-B- Corp 
sufficiently explained. The presence of these employees would not lead to a conclusion that the 
Beneficiary has staff to support her management of multiple essential functions of the business. 
As discussed, the Petitioner claims that the services it provides are performed by foreign consultants 
and "independent professional companies" under the Beneficiary's supervision, but it has not 
sufficiently documented the existence of this staff or the work they perform. The Petitioner also 
indicated that the Beneficiary spends at least half of her time on account management 
responsibilities, most of which are not managerial in nature. While performing non-qualifying tasks 
necessary to produce a product or service will not automatically disqualify a beneficiary as long as 
those tasks are not the majority of a beneficiary's duties, a petitioner still has the burden of 
establishing that a beneficiary will "primarily" perform managerial or executive duties. See section 
101(a)(44) of the Act. Whether a beneficiary is an "activity" or "function" manager turns in part on 
whether the Petitioner has sustained its burden of proving that their duties are "primarily" 
managerial. See Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
The Petitioner initially claimed that the Beneficiary performs solely executive duties. 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 101(a)(44)(B) of the Act. Under the statute, a 
beneficiary must have the ability to "direct the management" and "e.stablish 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 they 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. 
Here, while the Petitioner originally stated that the Beneficiary's position is executive in nature an·d 
described the role in broad terms that borrowed from the statutory definition of executive capacity, 
its· subsequent descriptions of the position did not include responsibilities for developing the 
company's policies and strategies, and the Petitioner ultimately claimed that t~e position is 
managerial rather than executive. The Petitioner's initial claim was not sufficiently supported and 
because the Petitioner has since altered its claim, we will not address it further. 
As required by section 10l(a)(44)(C) of the Act, if staffing levels are used as a factor in detennining 
whether an individual is acting in a managerial or executive capacity, we take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. However, it is appropriate 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. Family Inc. v. USCJS, 469 F.3d 1313 
(9th Cir. 2006); Systronics Cotp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a 
company may be especially relevant when we note discrepancies in the record. See Systronics, 153 
F. Supp. 2d at 15. 
10 
_Malter ofC-A-D-B- Corp 
The Petitioner states that it provides "administrative, financial, accounting, sales and tax advice" to 
its clients. It attributes responsibility for the creation of clients' business plans to consultants 
employed by the foreign entity and states that "independent professional companies" also contribute 
· to the provision of services to its clients. Neither of these claimed resources is adequately 
documented in the record and thus it remains unclear who actually creates the company's work 
product for clients and provides its services. Further, the Petitioner did not provide copies of its 
contracts with clients and, without a detailed description of services, it did not establish that it is 
feasible for external staff to perform all services the Petitioner claims to provide. The submitted 
invoices include charges for development of business plans, but the Petitioner also bills clients for 
services such as administrative outsourcing, bookkeeping, strategic planning, organizational 
diagnosis, process standardization, and preparation of financial statements. None of the company's 
four employees is claimed to actually provide any of these services, although the Petitioner has 
stated that the Beneficiary reviews documents prepared for clients and contributes information to 
these documents. The Petitioner has not shown that it has a reasonable need for the Beneficiary to 
perform primarily managerial or executive duties with respect to the provision of services. 
We have interpreted the statute to prohibit discrimination against small or medium-size businesses. 
However, we have also consistently interpreted that Act to require pe_titioners to establish that the 
beneficiary's position "primarily" consists of managerial or executive duties, and that it has 
sufficient personnel to relieve a beneficiary from. performing operational and administrative tasks. 
The reasonable needs of a petitioner will not supersede the requirement that a beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. Brazil 
Quality Stones v. Cherto.ff, 531 F.3d 1063, I 070 n. IO (9th Cir. 2008). 
Based on the nature of the company and its documented staffing levels, the Petitioner has not shown 
that it requires the Beneficiary to primarily perform the higher level planning, policy-making and 
business development duties attributed to her in the Petitioner's initial statement. Rather, she would 
more likely than not be required to perform a variety of non-qualifying duties necessary for the day­
to-day operations of the company. Accordingly, the Petitioner has not established that the 
Beneficiary will be employed in a managerial or executive capacity, and the Director properly 
revoked the approval of the petition. 
IV. DOING BUSINESS 
The remaining issue in this matter is whether the Petitioner established that it is doing business in the 
United States. "Doing business" means the regular, systematic, and continuous provision of goods 
and/or services by a qualifying organization and does not include the mere presence of an agent or 
office. 8 C.F .R. § 214.2(1)(1 )(ii)(H). 
At the time of filing, the Petitioner stated that it had gross annual income of $210, I 35 and provided 
supporting evidence that included: (1) partial copies of its Bank of America account statements for 
the period August 2015 through June 2016; (2) copies of invoices it issued during this same period; 
(3) copy of its 2015 federal tax return reflecting $210,135 in gross receipts or sales; and (4) a profit 
and loss statement for the first six months of 2016 showing $323,347 in "service income." 
11 
.
Maller of C-A-D-B- Corp 
In the NOIR, the Director advised the Petitioner that "the site visit was not able to observe or verify 
the business activity" of the company as there were no employees on the premises on the day of the 
visit. The Director also reviewed the evidence of record, noting that the Petitioner had issued a total 
of 13 invoices for the preparation of business plans for the same three clients. The Director observed 
that "the preparation of multiple business plans for each small client company seems unusual 
practice." The Director further noted that some of the invoices were incomplete and that the 
Petitioner had not provided supporting evidence such as copies of agreements with clients. Finally, 
the Director acknowledged the Petitioner's bank statements but observed that they reflected 
primarily non-business related transactions. Accordingly, the Director asked the Petitioner to submit 
additional objective evidence of its business activities including recent tax returns , mvo1ces, 
. executed contracts, detailed activity reports, and evidence of wages paid to employees. 
In response the Petitioner submitted : a copy of its 20 I 6 federal and state tax returns showing 
$394,237 in gross receipts or sales ; evidence of wages paid to employees in 2016, including IRS 
Forms W-2 and quarterly tax filings; copies of business plans prepared for its client 
copy of a financial report prepared for client and a letter from 
another client stating that .it paid the Petitioner $1 ,870 in May 2016 for the provision of services. 
The Petitioner explained that it has had a working relationship with since 
October 2015 and has in fact prepared several business plans for that client. The Petitioner also 
· noted that some of the irregularities in the invoices can be attributed to its former secretary , who was 
terminated for poor performance . 
In the revocation decision , the Director found that the evidence was insufficient establish that the 
Petitioner was doing business . The Director noted that one of the business plans that the Petitioner 
had allegedly prepared for had been copied verbatim from a publicly 
available business tools website , and that the submission of this evidence cast doubt on the reliability 
of other evidence offered in support of the petition . The Director further emphasized that the 
Petitioner did not explain why there were not employees at its location at the time of the site visit. 
On appeal , the Petitioner asserts that the Director ignored "overwhelming evidence" that the 
Petitioner is doing business and "misapplied the law by focusing the crux of its argument on the site 
visit." 
The Petitioner submits a letter from its commercial director , who states that the immigration officer 
visited the office early in the workday and notes that the Petitioner's office "is rarely opened at 9:00 
am sharp, " She states that both the Beneficiary and the company president were meeting with clients 
at the time of the visit and she is nomrnlly in the office by 10:00 a.m. She also explains that the 
business plan submitted in response to the NOIR was actually a sample that the Petitioner had sent to 
its overseas consultant to use as a model , and was not the business plan that was ultimately provided 
to its client. The Petitioner submits a letter from president, who states that 
his company has worked with the petitioner since September 20 I 5. He provides a different version 
of the previously submitted business plan, which he states is the version the Petitioner provided to 
his company . 
12 
.
Maller ofC-A-D-B- Corp 
Upon review, we find insufficient evidence to establish that the Petitioner was doing business as 
defined in the regulations at the time of filing and at the time of the site visit. 
The Petitioner emphasizes that the Director did not give sufficient weight to the documentary 
evidence in the record, including the tax returns, invoices, and bank statements. We have reviewed 
and compared the invoices and bank statements and find that some of the invoices are corroborated 
by the Petitioner's bank records. However, there are some unexplained discrepancies. 
For example, for the month of June 2016, the Petitioner's checking account statement shows that it 
received total deposits of $44,757. The Petitioner's financial statement shows that it generated 
service income of $57,166 during the same month. The Petitioner submitted only 1\-\'.0 invoices paid 
in June 2016 - one for $6,668 .67 and one for $600.00 . The bank statement reflects mobile deposits 
in these amounts, but almost all other deposits and credits to the account were online banking 
transfers from two other checking accounts and we cannot determine the source of those funds. The 
bank statement does not corroborate the claimed $57,000 in income. 
In reviewing invoices and bank statements from earlier months, we note that there are some wire 
· transfers from a client, some additional mobile deposits that match the amounts 
indicated on invoices, and some additional "online banking transfers" that also coincide with 
invoices. Again, we cannot determine the source of the funds for these online transfers, and the total 
deposits in each month fall short of what is stated on the Petitioner's financial statements. 
We also note that the Petitioner submitted a 2016 mid-year profit and loss statement showing gross 
service income of $323,247, with monthly income in the range of $55,000 to $65,000 in most 
months. However, the year-end income reported on the Petitioner's tax return for 20 I 6 was 
$394,237, which would tend to indicate that the Petitioner experienced a significant downturn in 
monthly income in the latter part of the year. 
The Petitioner has submitted explanations regarding its repeated billing of the same few clients and 
its submission of a business plan that appeared to be copied verbatim from a business tools website. 
The Petitioner's explanation that it simply provided that business plan as a model or sample to its 
overseas consultant is lacking credibility as the Petitioner has not submitted sufficient evidence that 
it actually relies on the services of overseas consultants. Moreover, if the Petitioner were providing 
the online sample to its claimed contractors, it is unclear why they would not simply provide the 
website link to its overseas staff, rather than printing a business plan in which someone had taken the 
time to include the client's name throughout. 
Again, the Petitioner must resolve inconsistencies with independent, objective evidence pointing to 
where the truth lies. I-lo, 19 l&N Dec. at 591-92. Here, there are enough ambiguities in the record 
to warrant additional objective evidence of the Petitioner's business activities such as copies of 
signed service contracts with clients, evidence of correspondence between the Petitioner, its claimed 
contractors and its clients, finalized tax returns that were received by the IRS, copies of canceled 
checks received from clients, evidence of payments to the claimed overseas workers and other 
contractors, and evidence of ongoing business activities in the second hat f of 2016 and beyond. The 
13 
Maller ofC-A-D-B- C0171 
Petitioner has not submitted sufficient evidence to establish that ii continues do business as defined 
in the regulations at the time of filing or at the time of the site visit and revocation. 
V. CONCLUSION 
The Director properly revoked the approval of the petition as the Petitioner did not establish that it 
would employ the Beneficiary in a managerial or executive capacity, or that it continued to do 
business as defined in the regulations. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-A-D-B- Corp, ID# 1495724 (AAO Nov. 20, 2018) 
14