dismissed L-1A Case: Construction / Import & Export

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
- MATTER OF H-USA LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 26, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner describes itself as a "Remodeling and Construction; Import & Export" business. It 
seeks to continue to employ the Beneficiary as its vice president/ general manager 1 under the L-1 A 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) § 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(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 initially approved this petition and granted the Beneficiary the requested extension of 
L-1A classification for the period February 13, 2010 through February 12, 2012. Following the 
approval, the Embassy of the in Venezuela, notified the United 
States Citizenship and Immigration Services (USCIS) of derogatory information regarding the 
Beneficiary's eligibility for classification under section 101(a)(15)(L) of the Act. The Director 
issued a notice of intent to revoke the approval (NOIR) and gave the Petitioner an opportunity to 
submit additional evidence in support of the petition, in accordance with 8 C.F .R. · § 
214.2(1)(9)(iii)(B). Upon review of the Petitioner's response, the Director revoked the approval of 
the petition on June 3, 2011 based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed by the U.S. entity in a managerial or executive capacity. 
The Petitioner asserts on appeal that the Director made numerous errors of fact and claims that the 
evidence on record establishes that the Beneficiary will be employed in the United States in a 
managerial or executive capacity. The Petitioner submits a brief statement and additional evidence 
in support of the appeal. 
Upon de novo review, we will dismiss the appeal? We find that the Petitioner has not met its burden 
to establish that the Beneficiary will be employed in a managerial or executive position. 
Furthermore, even if the Petitioner were to overcome the deficiencies in the record with regard to the 
1 The Petitioner has also referred to the Beneficiary's title as the managing director/general manager. 
2 The Petitioner filed three 1-129 petitions that are currently before the AAO on appeal. We reviewed the instant petition 
for the vice president/general manager, along with the L-1 A visa petitions for the president and managing director, 
and the vice president of organizational development, 
Matter of H-USA LLC 
Beneficiary's managerial or executive position, we would need to remand the case to the Vermont 
Service Center to address additional deficiencies in the record. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA 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)(l5)(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. !d. 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) 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 entities 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 (1)( 1 )(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 
managerial or executive capacity; and 
(E) Evidence ofthe financial status of the United States operation. 
Finally, the regulation at 8 C.F.R. § 214.2(1)(9)(iii)(A) provides that the Director may revoke the 
approval of a petition on notice at any time, even after the expiration of the petition, under certain 
circumstances. To properly revoke the approval of a petition, the Director must first issue a notice 
of intent to revoke that contains a detailed statement of the grounds for the revocation. 8 C.F.R. § 
214.2(1)(19)(iii)(B). 
II. ISSUES ON APPEAL 
A. Managerial or Executive Capacity in the United States 
The primary issue addressed by the Director is whether the Beneficiary will be employed in the 
United States in managerial or executive capacity. 
2 
(b)(6)
Matter of H-USA LLC 
Section 101(a)(44)(A) of the 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 of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or 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. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) ofthe 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. 
1. Evidence of Record 
The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, on January 6, 2010. The 
Petitioner is a corporation established in 2008 under the laws of the state of Florida. The Petitioner 
claims on the Form I-129 that it is a joint venture of two Venezuelan companies: 
and The Petitioner indicated that it is a remodeling/ construction and 
3 
(b)(6)
Matter of H- USA LLC 
import/export company with ten employees and gross annual mcome of $448,741.60 as of 
September 30, 2009. 
The Beneficiary was initially granted a one-year period in L-1 A status to open a new office in the 
United States. USCIS subsequently approved the instant petition granting the Beneficiary an 
extension of stay in L-1 A status. The Director later revoked this petition extension, and the 
Petitioner now appeals the revocation. 
In a letter dated December 30, 2009, and submitted in support of the initial petition, the Petitioner 
stated that the purpose of the United States business is to provide "services and products to the U.S. 
construction industry, with spec~al emphasis on the business of construction and remodeling." The 
Petitioner further noted that it engaged in "small and medium scale remodeling, construction, repair, 
and alteration of projects focusing on residential and commercial contracting." The Petitioner 
provided a corporate organizational chart showing the four subsidiary entities: 
and 
The Petitioner stated that the Beneficiary, as the "Managing Director/General Manager," will perform 
the following duties: 
[C]ontinue to negotiate and/or approve contracts and agreements with clients, i.e. 
suppliers, distributors, federal and state agencies and private entities. He will continue 
to prepare the company's budgets. He will continue td monitor the work of subordinate 
managers and professionals to ensure that they efficiently and effectively provide 
needed services, while staying within the company's budgetary limits. He will continue 
to confer with the owners of the Joint Venture partner on matters that have a material 
effect on fundamental corporate issues, such as pricing and profitability. 
The Petitioner further explained that all questions relating to the business and its assets with be 
"determined 
by mutual agreement" of both the Beneficiary and the other partner in the 
joint venture. 
Regarding staffing, the Petitioner stated that the Beneficiary will directly oversee the work of two 
employees and indirectly other six employees. The Petitioner, however, did not specify in the letter 
what two employees the Beneficiary would directly oversee. The Petitioner provided a position 
description and title for the following positions: V.P. food division, V.P. organizational development, 
export coordinator, sales manager, assistant to the CEO and general manager, and external accountant. 
The organizational chart initially submitted with the Form 1-129 indicates that the Beneficiary's 
subordinate employees are: vice president-food division, and vice president-
organizational development, The vice president-organizational development has a 
subordinate sales manager, identified as and an export coordinator identified as 
Reporting to the president/managing director are: assistant to the CEO and general manager, 
vice president of marketing and sales, and vice president of logistics, 
4 
(b)(6)
Matter of H- USA LLC 
An administration and finance employee, is placed under the vice 
~ president of logistics. The chart with regard to the Beneficiary's subordinate organizational structure is 
as follows: 
General Manager/VIce 
President 
I 
I I 
VP-Organizational 
VP- Food Division Development 
- Sales Manager 
- Export Coordinator 
The Petitioner submitted its IRS Form 941, Employer's Quarterly Federal Tax Returns, Florida 
Employer's Quarterly Reports, New Jersey Employer's Quarterly Reports, and payroll documents in 
support of the petition, among other items. 
The Director approved the instant petition on January 11, 2010.3 Subsequent to the approval, the 
Embassy of the in Venezuela, notified USCIS of derogatory 
information regarding the Beneficiary's eligibility for the classification under section 101(a)(15)(L) 
of the Act. The derogatory information was based, in part, upon statements made by the 
president/managing director to embassy officials that the U.S. business "had never gotten off the 
ground" and that it was changing its focus to import and export various other lines of business. 
Further, the president/managing director provided conflicting information about the number of 
employees the Petitioner employed. The domestic entity was also found to have no internet presence 
and the company's telephone numbers were from residential addresses. Finally, the embassy 
officials indicated that repeated telephone calls to the purported affiliated business in Venezuela, 
went unanswered. · 
3 Although the petitiOn requested an extension of three years, the approval extended the Beneficiary's L-1 A 
classification for a two year period. See 8 CTR. § 214.2(1)(15)(ii) (limiting an extension of authorized stay in L-IA 
status to "increments of up to two years"). 
5 
(b)(6)
Matter of H- USA LLC 
On December 1, 2010, the Director issued a NOIR. In this notice, the Director advised the Petitioner 
of the embassy's findings. The Director stated that, based on the information supplied by the 
embassy in it appears that the "instant petitioning entity has not and cannot provide the 
qualifying employment" and instructed the Petitioner to submit additional evidence to establish the 
Beneficiary will be employed in a managerial/executive capacity in the United States. 
The Petitioner submitted a timely response to the NOIR on December 30, 2010,including following 
documents: (1) an affidavit from the president/managing director; (2) a corporate diagram; (3) another 
position description for the Beneficiary, including the percentage of time spent on each duty; (4) 
employer state quarterly tax returns for the third and fourth quarters of 2009 and the first three quarters 
of 2010; (5) education credentials for the Beneficiary; (6) resumes and position descriptions for U.S. 
employees, including the percentage of time spent on each duty; (7) IRS Forms 941, Employer's 
Quarterly Federal Tax Return, for the third and fourth quarters of 2009 and the first, second, and third 
quarters of2010; (8) IRS Forms W-2 and Form W-3 for 2009; (9) photographs of its physical premises; 
(10) its U.S. bank account information; (11) business invoices for the purchase of heavy machinery and 
machine parts; and (12) its 2009 IRS Form 1120, U.S. Corporation 
Income Tax Return. 
A revised organization chart indicates that the Beneficiary directly oversees vice 
president of business development, who in turn supervises a subordinate assistant identified as 
and a sales assistant that has not yet been hired. The president/CEO overseas a logistics 
manager identified as who in turn oversees export coordinator, 
and marketing and sales supervisor, The updated organization chart indicates that 
warehouse/shipping assistant, is subordinate to the marketing and sales supervisor. 
The Petitioner alsorprovided a revised position description for the Beneficiary including percentage of 
time spent on each duty. The Petitioner added two additional duties to the prior description, including 
participating in personnel decisions and taking part in overseeing growth. 
After reviewing the response to the NOIR, the Director found inconsistencies in the evidence 
regarding staffing levels and the vague position description provided for the Beneficiary. On this basis, 
the Director concluded that the Petitioner did not establish that the Beneficiary will be employed in a 
qualifying managerial or executive capacity in the United States and revoked the approval of the 
petition. 
On appeal, the Petitioner provides additional evidence and asserts that the Director based his decision to 
revoke the approval of the petition on "several factual and legal errors." More specifically, the 
Petitioner asserts that the Beneficiary supervises subordinate managerial and professional employees 
and therefore the Director erred in finding that the Beneficiary will not be employed in a managerial or 
executive capacity. 
( 
6 
Matter of H-USA LLC 
2. Employment in a Managerial Capacity 
Upon review of the petition and the evidence, and for the reasons discussed herein, the Petitioner has 
not established that that it will employ the Beneficiary in a primarily managerial or executive 
capacity. 
When examining the executive or managerial capacity of the beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.P.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 either in an executive or managerial capacity. !d. 
We also review the totality of the record, including descriptions of a beneficiary's subordinate 
employees, the nature of the petitioner's business, the employment and remuneration of employees, 
and any other facts contributing to understanding a beneficiary's actual role in a business. 
a. The Nature ofthe Petitioner's Business 
As a preliminary matter, the Petitioner's description of the Beneficiary's duties is severely restricted by 
the fact that the Petitioner has not provided clear and credible evidence of the nature of its business. 
The December 30, 2009 support letter states that the Petitioner was established with the purpose of 
providing services and products to the U.S. construction industry with a special emphasis on the 
business of construction and remodeling. In response to the NOIR, the president/managing director 
submitted an affidavit stating that after being denied the proper permits for the day care center, the 
company shifted its business focus to the importation of crabmeat to the U.S. and export heavy 
machinery and parts to Venezuela. On appeal, the Petitioner states that after being denied the day 
care permits, the Petitioner's focus shifted to "purchasing and exporting U.S.-made heavy 
equipment, _machinery and parts for large civil engineering and construction projects in Venezuela." 4 
The Petitioner must resolve inconsistencies or discrepancies in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Without a Clear understanding of the nature of the Petitioner's underlying business, we are unable to 
make a determination regarding the Beneficiary's claimed managerial or executive duties within that 
business. The Petitioner's subordinate employees, daily duties, sales structure, and business model 
are factors used to determine whether the Beneficiary will be relieved of non-qualifying duties or 
whether the company is of sufficient size to support a managerial or executive level position. The 
4 We note that the Petitioner has not provided a copy of a Construction Industry License as required for the State of 
Florida. Furthennore, the Director requested a copy of the U.S. company's current valid business licenses for city, 
county, state and federal authorities. In response, the Petitioner provided a copy of its Business Tax Receipt for 2010-
2011 showing a classification of"IMPORT/EXPORT." 
7 
(b)(6)
Matter of H- USA LLC 
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). 
b. The Beneficiary's Job Duties 
Regarding the Petitioner's description of the Beneficiary's job duties, the Petitioner repeatedly 
provides an overly broad description of those duties both in the initial submission, in response to the 
NOIR, and on appeal. For example, the Petitioner states that the Beneficiary will "[p]repare and 
coordinate the company's budget and activities related to fund operations;" "monitor the work of 
subordinate managers and professionals;" confer with owners on "matters that have a material effect 
on fundamental corporate issues;" and "take part in overseeing growth of the petitioner." While 
these broad and generalized responsibilities suggest that the Beneficiary has authority over the 
company's policies and activities, they offer no insight into what he will actually do on a day-to-day 
basis as the vice president and general manager of a remodeling/construction and import/export 
company. Specifics are clearly an important indication of whether a beneficiary's duties involve 
specialized knowledge, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v .. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajj'd, 905 F. 
2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
We note that, in response to the NOIR, the Petitioner provided percentages for each of the Beneficiary's 
described duties provided in the initial petition. Due to the initial job description's lack of sufficient 
detail, however, the percentages did not provide any additional insight into what the Beneficiary does or 
would do on a day-to-day basis. As such, the Petitioner's description of the Beneficiary's job duties 
does not sufficiently establish what proportion of the Beneficiary's duties is managerial in nature, and 
what proportion is actually non-managerial. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. 
Cir. 1991). 
In response to the NOIR and on appeal, the Petitioner appears to be expanding the Beneficiary's 
duties to include some oversight or management of claimed subordinate entities, including 
The Petitioner, however, has not provided sufficient evidence to establish its ownership or 
control over these separate business entities.5 As each company is a distinct entity, with no 
5 The record does not include any documentation demonstrating the claimed ownership of the petitioner's claimed 
subsidiaries. The electronic articles of incorporation for indicate that the corporation is 
authorized to issue I ,000 shares; however, the record is void of evidence to establish the actual number of shares issued 
and the ownership of those shares. Similarly, the evidence submitted in the initial filing does not demonstrate that the 
Petitioner has a qualifying relationship with its other claimed subsidiaries. Specifically, the articles of incorporation for 
indicate that the company's officers are and and that 
the issuance of I 00 shares of company stock is authorized, but there is no evidence to indicate the actual ownership. 
Additionally, the record contains inconsistent information regarding the ownership of and 
The Petitioner's 2009 Form 1120 indicates that the Petitioner owns 66% of and I 00% of however, the 
company relationship chart and December 8, 2009 letter in support of the petition indicate that the Petitioner owns 90% 
of and that is owned by and individually. A Form I 065 
provided for also indicates his ownership, in an individual capacity, of 33.333% of Again, it is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Doubt 
8 
(b)(6)
Matter of H- USA LLC 
documentation to establish ownership and control, the Petitioner has not established that the time the 
Beneficiary spends or would spend on the management of the Petitioner's claimed affiliates, 
including and can be considered in determining the 
Beneficiary's employment in a managerial or executive capacity for the Petitioner. There is also 
insufficient evidence that the Petitioner has been compensated for such services in the past by these 
other entities or that the Beneficiary was authorized to be employed by them pursuant to an 
individual or blanket petition. 
c. The Employment and Remuneration of Employees 
On appeal, the Petitioner claims that the Beneficiary supervises professional and managerial level 
employees and that the Petitioner was sufficiently staffed at the time of filing to relieve the Beneficiary 
from performing non-qualifying duties. Specifically, the Petitioner claims that the vice president of 
business development is a managerial level position reporting to the Beneficiary. The Petitioner also 
claims that the logistics manager and marketing and sales supervisor are professional and managerial 
positions reporting both to the president/managing director and the Beneficiary. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). 
Personnel managers are required to supervise and control the work of other supervisory, professional, or 
managerial employees. 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." Section 101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 
214.2(1)(1 )(ii)(B)(2). If a 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(l)(l)(ii)(B)(3). 
The Petitioner has not provided clear and credible evidence to show its staffing structure, and more 
specifically, whom the Beneficiary's supervised at the time of filing. First, the Petitioner provided 
differing organizational charts for the United States entity. The chart submitted in the initial petition 
shows the Beneficiary with two subordinate vice presidents, one of which supervises a sales manager 
and an export coordinator. The organizational chart submitted in response to the NOIR, however, show 
that the Beneficiary only supervises the V.P. of business development and a subordinate assistant. 
Based on the federal and state employer quarterly tax returns, the V.P. food division, the sales 
manager, and the subordinate assistant were not employed as of the date of filing. Therefore, the 
Florida state quarterly tax returns only document that the V.P. organizational development and an 
export coordinator were employed as ofthe date of filing. The Petitioner must establish eligibility at 
the time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit 
through adjudication. 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved at a future date 
cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec, 582, 591-592 (BIA 1988). 
9 
Matter of H-USA LLC 
after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin 
Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
We also note inconsistencies in the submitted evidence related to the Petitioner',s staffing levels and 
wages paid. For instance, the Petitioner's IRS Form 941 for the first quarter of 2010 shows that 11 
employees were compensated total wages of $64,758.02 in this quarter. The Florida Department of 
Revenue Employer's Quarterly report, however, shows that eight to nine employees were 
compensated a total of $44,387.21 during that same quarter. Further, the Petitioner attests on the 
Form I-129 (also filed in this same quarter) that it employs ten employees. Again, the Petitioner 
must resolve inconsistencies or discrepancies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 l&N Dec. at 591-92. 
Additionally, the IRS Form W-3 states that the Petitioner issued a total of 10 IRS Forms W-2 in 2009. 
The IRS Form W-3 and corresponding IRS Forms W-2 represent that the company paid $110,649.49 in 
wages, tips, and other compensation in 2009. The company's 2009 IRS Form 1120, however, indicates 
that the Petitioner paid $66,583 in salaries and wages and $38,000 for the compensation of officers, 
totaling $1 06,5 83. 
On appeal, the Petitioner claimed that the inconsistencies in the wages reported on tax documents 
were the result of an accounting error and, in support of this assertion, it submitted an IRS Form 
1120X, Amended U.S. Corporation Income Tax Return reflecting $72,648 in salaries and wages and 
$38,000 in officer compensation. There is no evidence, however, that the amended tax return was 
actually filed with the Internal Revenue Service (IRS), .and the return has not been signed by an 
officer of the company. Absent such documentation, there is insufficient independent and objective 
evidence in the record to show that the reported wages were an accounting error. Again, the 
Petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and 
objective evidence. Matter of Ho, 19 I&N Dec. at 591-92. · 
The inconsistent evidence in conjunction with the differing organizational charts do not provide a 
sufficient understanding of whom the Petitioner employed and what employees will be subordinate 
to the Beneficiary. 
Moreover, as discussed, the Petitioner has not provided a consistent description of the nature of its 
business activities. Of the Petitioner's three iterations of its business model, the organizational chart 
does not show how any of these business lines are supported by sufficient staffing. First, if the 
Petitioner performs construction work, there is no staff tasked with performing construction services. 
If the Petitioner imports crabmeat, there are no subordinate staff to perform warehousing, sales,/ 
importation of the goods, or marketing duties, among others. If the Petitioner exports construction 
equipment, there are no sales staff, warehouse staff, purchasing staff, or marketing staff. Thus, the 
Petitioner has not demonstrated that it has sufficient staff to relieve the Beneficiary from performing 
non-managerial or non-executive duties. An employee who primarily performs the tasks necessary 
10 
Matter of H-USA LLC 
to produce a product or to provide services is not considered to be employed in a managerial or 
executive capacity. Matter of Church Scientology Int '!, 19 I&N Dec. 593, 604 (Comm'r 1988). 6 
d. Subordinate Employees Are Not Employed in Professional, Managerial, or Supervisory 
Positions 
Even if the Petitioner had established that it had staff available to relieve the Benefi~iary from 
performing non-managerial or executive duties, which it did not, the Petitioner has not demonstrated 
that the Beneficiary's claimed subordinates are employed in professional, managerial, or supervisory 
positions. 
When examining the managerial or executive capacity of a beneficiary, we review the totality of the 
record, including evidence to substantiate that the duties of the beneficiary and his or her 
subordinates correspond to their placement in an organization's structural hierarchy. Artificial tiers 
of subordinate employees and inflated job titles are not probative and will not establish that an 
organization is sufficiently complex to support an executive or managerial capacity position. An 
individual whose primary duties are those of a first-line supervisor will not be considered to be 
acting in a managerial capacity merely by virtue of his or her supervisory duties unless the 
employees supervised are professional. Section 10l(a)(44)(A)(iv) ofthe Act. 
On appeal the Petitioner claims that the logistics manager, marketing/sales supervisor, and vice 
president of business development are professional and managerial level positions. First, the 
logistics manager does not report to the Beneficiary on either of the organizational charts provided. 
Second, as stated above, the sales manager was not employed as of the time of filing. This leaves 
the V.P. of business development as the only potential professional or managerial level position 
supervised directly by the Beneficiary. 
The position description for the V.P. of business development 7 does not support a finding that this 
position qualifies as a managerial or supervisory level position. The initial description of this 
position is vague, with duties such as "[r]esponsible for reviewing and revising, as necessary the 
organizational structure of the business," directing all financial activities of the organization, and 
determining the scope of business operations to meet customer demand." Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. 
6 We agree with counsel, however, that the seemingly low wages reported on IRS Form W-2 for 2009 did not reflect a 
full year of payments to the Petitioner's employees. We therefore withdraw the Director's finding that the wages paid 
during that part of2009 were not commensurate with that of bone fide managerial, executive, or professional employees. 
We do not, however, find that this factual error was,material. That is, it does not change the fact that the record failed to 
demonstrate that the Beneficiary would continue to be employed in a managerial or executive capacity. Specifically and 
as discussed in greater detail herein, the Petitioner did not provide a detailed description of the Beneficiary's actual 
duties and did not resolve apparent inconsistencies in the record with respect to its staffing levels. 
7 The position title for the V.P. of business development was listed as V.P. of organizational development on the 
organizational chart submitted with the initial petition. 
1 I 
(b)(6)
Matter of H- USA LLC 
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). Furthermore, the description stated that the position would be responsible for overseeing 
lower level financial work, including the preparation of financial reports and financial goals. The 
Petitioner, however, did not state who will be responsible for this financial work, whether it is 
external or an employee of the Petitioner. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. 15 8, 165 (Comm "r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm"r 1972)). 
Additionally, the Petitioner stated that the V.P. organizational development will supervise the export 
coordinator. The Petitioner, however, does not provide any further detail or additional duties related 
to the supervision of this claimed subordinate position. 
In response to the NOIR and on appeal, the Petitioner provided a similar explanation of the duties for 
the position of V.P. of business development, adding percentages of time spent on each duty. The 
Petitioner, however, added a number of duties that do not appear to be managerial in nature such as: 
attending U.S. and international conferences, conducting cost analysis, and keeping abreast of trends 
in the crabmeat industry. Again, none of the listed duties for the V.P. of business development relate 
to the supervision of the export coordinator. Accordingly, the Petitioner has not provided sufficient 
evidence to support a finding that the V .P. of business development is a subordinate supervisory or 
managerial position to the Beneficiary at the time of filing. 
Next, we will evaluate whether the claimed subordinate position qualifies as a professional. 8 As 
stated above, the only claimed professional level position supervised by the Beneficiary shown to be 
employed at the time of filing is the V.P. of organizational development. First, the duties provided 
for the V.P. of organizational development, in the initial submission or in response to the NOIR, do 
not support a finding that the position is a professional level position. Second, the Petitioner did not 
provide the level of education required to perform the duties of the position. The Petitioner provided 
the resume of the employee, noting that she studied pedagogy at the 
but it is not clear whether she actually obtained a baccalaureate 
degree. Nor did the Petitioner provide a copy of the degree. Thus, the petitioner has not established 
that this employee possessed a baccalaureate degrees and that her position requires a degree, such 
that we can consider her to be a professional level employee. 
Overall, the Petitioner 
has not demonstrated that the Beneficiary's subordinates' duties are professional, 
managerial, or supervisory in nature. Based on the lack of evidence presented as well as the position 
8 In evaluating whether the Beneficiary manages professional level 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 requ,irement for entry into the occupation"). Section I 0 I (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 H- USA LLC 
descriptions and inconsistencies in the record telated to the Petitioner's staffing, we find the record does 
not contain sufficient, credible evidence of an existing organizational structure that would elevate the 
Beneficiary's supervisory duties to those that are higher than a supervisor of non-professional, non­
managerial, or non-supervisory employees. Therefore, the Petitioner has not demonstrated that the 
Beneficiary would continue to act in a qualifying managerial capacity. 
3. Employment in an Executive Capacity 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
an organizational hierarchy, including major components or functions of the organization, and his or her 
authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
Under the statute, a beneficiary must primarily spend his or her time directing the management and 
establishing the goals and policies of that organization. !d. Inherent to the definition, the organization 
must have a subordinate level of employees for the beneficiary to direct and the beneficiary must 
primarily focus on establishing the broad goals and policies of the organization rather than performing 
or directly supervising 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. The 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. Due to the overall lack of 
evidence as well as the inconsistencies in the Beneficiary's position description and subordinate staffing 
described above, the Petitioner has not shown that its organization is of sufficient size and structure to 
support an executive level position. 
4. Conclusion 
Due to the Petitioner's inconsistent description of its business operations, vague position 
descriptions, and insufficient and contradictory information regarding staffing levels, the Petitioner 
has not met its burden to show that the Beneficiary will be employed in a managerial or executive 
capacity position as defined by the Act and its implementing regulations. 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. Here, that burden has not been met. 
Accordingly, the appeal will be dismissed. 
III. ADDITIONAL ISSUES 
Even if the Petitioner were to overcome the deficiencies in the record with regard to the 
Beneficiary's managerial or executive position, we would need to remand the case to the Vermont 
Service Center to address additional deficiencies in the record, specifically with respect to: (1) 
whether (a) the Petitioner has demonstrated that it has been doing business for the year prior to filing 
the extension and whether (b) the United States entity continues to do business as required; (2) 
whether the Petitioner (a) has a qualifying relationship with a foreign entity and (b) continues to 
13 
Matter of H-USA LLC 
conduct business abroad; and (3) the Beneficiary's qualifying managerial or executive employment 
with the foreign entity. 
A. Doing Business in the United States 
At the time of filing a petition to open a "new office," a petitioner must affirmatively demonstrate 
that it has acquired sufficient physical premises to commence business, that it· has the financial 
ability to commence doing business in the United States, and that it will support the beneficiary in a 
managerial or executive position within one year of approval of the petition. See generally 8 C.F.R. 
§ 214.2(1)(3)(v). If approved, the beneficiary is granted a one-year period of stay to open the "new 
office." 8 C.F.R. § 214.2(1)(7)(i)(A)(3). At the end ofthe one-year period, when the petitioner seeks 
an extension of the "new office" petition, the regulation at 8 C.F.R. § 214.2(1)(14)(ii)(B) requires the 
petitioner to demonstrate that it has been doing business "for the previous year" through the regular, 
systematic, and continuous provision of goods and/or services. See 8 C.F .R. § 214.2(1)(1 )(ii)(H) 
(defining the term "doing business"). The mere presence of an agent or office of the qualifying 
organization will /not suffice. Id. Therefore, when a petitioner indicates that a beneficiary is coming 
to the United States to open a "new office," it must show that it is ready to commence doing business 
immediately upon approval. 
The record supports a finding that the Petitioner has not sustained operations for the required one 
year prior to filing the new office extension petition on January 6, 2010. The Petitioner claims that it 
did not commence business operations until approximately June of 2009, six months prior to the 
filing date of the petition. The Petitioner states in its brief on appeal that it launched in the "latter 
part of2009" as well as stating that it began operations in "June of2009." 
The evidence of record shows no business activity earlier than May of 2009: the earliest 
documentation of business by the Petitioning entity is a purchase order from May 20, 2009. 
Additionally, the Petitioner did not appear to have any employees on staff earlier than the third 
quarter of 2009. For instance, the Petitioner submitted quarterly payroll reports for the last two 
quarters of 2009, but states in response to the NOIR that it did not have any employees for the first 
two quarters of 2009. We note that the Petitioner submitted tax returns and consolidated financial 
statements showing income for 2010, but the statements do not show what month the entity began 
sales. The Petitioner's IRS Form 1120, U.S. Corporate. Income Tax Return, for 2008 shows $0 in 
total income. Again, at the time the petitioner seeks an extension of the new office petition, the 
regulation at 8 C.F.R. § 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been 
doing business for the previous year. We recognize the Petitioner's assertions that it had problems 
obtaining the required day-care permits and consequently switched business models. There is no 
provision in the regulations, however, allowing for the extension of this one-year period. If the 
business has not been sufficiently operational for the previous year, the petitioner is ineligible for an 
extension by regulation. In the instant matter, the petitioner has provided evidence of a mere six 
months of operations, falling short of the one year requirement. 
14 
(b)(6)
Matter of H- USA LLC 
Furthermore, despite claims that it began operating in June of 2009, the Petitioner has not provided 
sufficient evidence to show that it has been doing business, as that term is defined in the regulations, 
since June of 2009 and continues to do so to date. The minimal documentation of the Petitioner's 
business operations raises the issue of whether the Petitioner is a qualifying organization engaged in 
the regular, systematic, and continuous provision of goods or services and does not represent the 
mere presence of an agent or office in the United States." 8 C.F.R. § 214.2(l)(l)(ii)(G)(2). 
As stated above, the first issue is that the Petitioner has not provided a consistent and credible 
description of their current business. The Petitioner has claimed the following throughout the 
duration of this petition and appeal: (1) the provision of construction services and products to the 
United States, including engaging in the construction business and offering remodeling services; (2) 
the exportation of heavy equipment to Venezuela and importation of crabmeat to the United States; 
and (3) the exportation of construction equipment. 
We note that the Petitioner has submitted numerous invoices for the purchase of heavy equipment 
and machinery as well as shipping statements to the foreign parent company. The Petitioner, 
however, has not provided any bill of sale or shown payment made by the parent company, or any 
other end-client, to the United States Petitioner. In addition, the Petitioner provided many bank 
statements from its account. The' statements, however, show checks cashed and 
some other minimal activity, but do not provide further information regarding what other entities are 
making payments and providing income to the Petitioner. 
The Director noted in the revocation decision that the Petitioner's photos cast doubt on the validity 
of the United States operations. Specifically, the Director noted the following with respect to the 
submitted photographs: 
The interior warehouse photos show automobiles, an almost empty work area, and a 
person who appears to be cleaning up the same space using a forklift. Two other 
unidentified people are shown at work at counters along a side wall of the warehouse, 
but no clearly discernible product is highlighted. The office photographs show three 
people at work at computer desks. No properly identified workers or customers are 
pictured, as requested. 
On appeal, the Petitioner states that the NOIR did not request the Petitioner to identify the workers in 
the photographs. The Petitioner generally states that the photos show "employees, products, 
activities" in the office and the warehouse. 
We agree with the Petitioner's assertion that the NOIR did not requesfthe Petitioner to identify the 
workers in the submitted photographs. We note, however, that the photographs do not provide any 
detail regarding the Petitioner's business operations. The photographs show minimal equipment 
which is purportedly the Petitioner's basis of business operations. Furthermore, it is not clear how 
the automobiles fit into the Petitioner's business model of exporting heavy machinery. The 
Petitioner has not responded to the Director's comments in this regard. 
15 
(b)(6)
Matter of H-USA LLC 
Due to the Petitioner's minimal evidence of ongoing operations, inconsistent business description, 
and photographs depicting little to no business operations, the record does not establish (a) the 
Petitioner has been doing business for the year prior to filing the extension; and (b) it is currently 
doing business as required. For this reason, even if the Petitioner were to overcome the deficiencies 
in the record with regard to the Beneficiary's managerial or executive position, we would need to 
remand the case to the Vermont Service Center to address this deficiency in the record. 
B. Qualifying Relationship and Doing Business Abroad 
"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 of the 
qualifying organization in the United States and abroad. 8 C.F.R. § 214.2(l)(l)(ii)(H). To qualify 
for an L classification, the foreign entity must continue to actively engage in the regular, systematic, 
and continuous provision of goods while the beneficiary is temporarily assigned to work in the 
United States. Here, the Petitioner has not established that the foreign entity continues to do 
business abroad. 
On the Form 1-129, the Petitioner asserts that it is a joint venture between the Beneficiary's foreign 
employer, and another entity, The record establishes the 
Petitioner's relationship with the foreign employer as asserted. The question raised by the Director 
in the NOIR, however, is whether the Beneficiary's foreign employer continues to do business as 
claimed, noting that attempted calls to the claimed "affiliated" entity in Venezuela went 
unanswered. 9 
The Petitioner, however, asserts in response to the NOIR and on appeal that it continues to do 
business through an affiliated entity which has a civil construction project valued 
at $20 million USD to build the But the Petitioner must show that it has a qualifying 
relationship with the claimed affiliated venture, and that this venture continues to 
do business as required. As explained below; the Petitioner does not establish that the foreign 
employer continues to do business as required through the affiliated entity, 
Accordingly, the record does not establish that the Petitioner's foreign employer, 
continues to do business as required. 
9 In the NOIR, the Director notified the Petitioner that attempts to call the foreign "affiliate" during normal business 
hours were unsuccessful.· We note that the Director did not specify the name of the "affiliated" entity in the NOIR and 
that the Petitioner did not specify what entity it was referring to when responding to the Director's comments regarding 
the "affiliated" entity in the response to the NOIR or on appeal. 
16 
(b)(6)
Matter of H- USA LLC 
1. Record of Evidence 
With the Form I-129, the Petitioner provided evidence of business 
operations including: Venezuelan tax documents from 2006 to 2008; reference letters from business 
associates and banks attesting to the foreign entity's business operations; translated copies of the 
opening and closing balances of its bank accounts; payroll documents; and copies of assigned 
contracts; and copies of photographs of the premises. 
1 
The five contracts submitted in the initial 1-129 are for work to be performed by an entity, 
One of the contracts, dated July 14, 2009, stated that and 
have formed a "consortium known as The Petitioner, however, 
did not provide any further evidence regarding this consortium. Furthermore, the Petitioner only 
provided a single page translation for contracts ranging from 33 to 34 pages in length without a 
certificate of translation. 
In response to the NOIR, the Petitioner submitted an affidavit from the president/managing director 
claiming that at the time of the consular interview in Venezuela in February 2010, the foreign 
"affiliate" continued to do business through a joint venture called consisting of 
and the Beneficiary's foreign employer, The 
president/managing director claimed that the joint venture has a $20 million construction contract for 
the in state, and although the foreign entity's original office remains open, the 
foreign entity was in the process of relocating the majority of its staff to state. The 
president/managing director stated that the new address is ' 
Venezuela." 
The Petitioner submitted a partial translation of a document purporting to form as 
a joint venture between in his capacity as Managing Director of 
and in his capacity as president of It appears that 
only a portion of the original document is included as the document ends mid-sentence on page 
three. The translation provided is less than a half page, and does not include the responsibilities and 
liabilities of the parties. The contract and a registration of fiscal information indicate that the 
company's address is 
The Petitioner also submitted a subcontract 
agreement from identifying 
as the subcontractor. The original contract is forty pages in length, however, the 
translation provided is less than one page. The partial translation of the contract does not include 
any dates for work to be completed. 
The Director noted in the revocation that evidence of the "alleged presence and operation of the 
foreign entity is in the Spanish language with no translations." The Director also noted that 
photographs of the foreign company do not show specific business signs, employees, or customers to 
17 
(b)(6)
Matter of H-USA LLC 
) 
identify the business and that no probative evidence was submitted affirming the operation of the 
foreign entity. 
The Petitioner asserts that the NOIR did not request that the Petitioner submit photos of the foreign 
affiliate, and that the photos were submitted to show the presence of the foreign affiliate at the 
construction site. 
2. Analysis 
Upon review of the petition and the evidence, and for the reasons discussed herein, the record does 
not establish that the foreign entity is doing business abroad, or otherwise doing business through 
any claimed joint venture. 
As a preliminary matter, the evidence of record does not support a finding that the foreign entity is 
doing business as the Beneficiary's claimed foreign employer on the Form 
I-129. As stated above, the Petitioner has not provided any valid contracts or invoices for the period 
requested in the name of nor has it otherwise shown how it will continue 
to do business as this entity. Furthermore , the most recent lease the Petitioner submitted for this 
entity ended July 21 , 2010, approximately six months after the filing date. 
The only evidence of continued foreign business operations is through the claimed joint ventures. 
As an initial matter, the Petitioner has submitted documents relating to two different entities. In the 
initial submission, the Petitioner submitted contracts and documents relating to a joint venture 
named In response to the NOIR, however, the Petitioner submitted information 
relating to a joint venture named It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Again, the Petitioner must 
resolve inconsistencies or discrepancies in the re~ord with independent , objective' evidence pointing 
to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92 (BIA 1988). 
Furthermore, the Petitioner has not established that either joint venture, or 
is a valid, legal entity and has a qualifying relationship with the Petitioner. First, 
the Petitioner did not submit any documentation evidencing ownership of the "consortium " 
The record 
only contains a reference to the organization in a partially translated 
contract for construction services. 
In response to the NOIR , the Petitioner submitted a partial translation of a document purporting to 
form The Petitioner's partial translation of the documents is insufficient for the 
purposes of these proceedings. The regulation requires that "[a]ny document containing foreign 
language submitted to USCIS shall be accompanied by a full English language translation which the 
translator has certified as complete and accurate ... " 8 C.F.R. § 103.2(b)(3) (emphasis added). 
Without a full translation of a document establishing the ownership or nature of the "consortium, " or 
of the joint-venture , we are not able to determine the nature, scope, parties, and terms of the joint 
venture or "consortium. " In the case of a 50-50 joint venture, where each of two corporations 
18 
(b)(6)\ 
Matter of H- USA LLC 
(parents) owns and controls 50 percent of a third corporation (joint venture), a subsidiary 
relationship is created for purposes of section 10l(a)(15)(L) ofthe Act under certain conditions. See 
Matter of Siemens Medical Systems, Inc., 19 I. & N. Dec. 362, 364 (BIA 1986); Matter of Hughes, 
18 I&N Dec. 289 (Comm. 1982); 8 C.F.R. § 214.2(l)(l)(ii)(K). Without a full translation of the 
document, we are unable to determine if the joint venture meets the definition of a qualifying 
organization. 
Even if the Pe.titioner could -show a qualifying relationship with either joint venture, the Petitioner 
ha.s not provided sufficient evidence to show that entities are doing business as required. 
Specifically, a number of contracts for work to be performed by are unsigned or 
undated by representatives of the other party, and do not appear to be valid contracts. Furthermore, 
without dates, we are unable to tell if the work is to be performed for the period requested. 
Furthermore, the Petitioner claims on appeal that the "vital aspects" of the contract for 
work on the have been translated; however, certified translations have not 
been provided for parts of the contract. The Petitioner also submitted a subcontract agreement from 
identifying as the subcontractor. The original contract is 
forty pages in length, but the translation provided is less than one page. As stated above, the 
regulation requires that "[a]ny document containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation which the translator has certified as complete 
and accurate ... " 8 C.F.R. § 103.2(b)(3) (emphasis added). 
The Petitioner has not demonstrated that it has a qualifying relationship with a foreign entity. In 
addition, even if it had documented a qualifying relationship with a foreign entity, the Petitioner has 
not established that either of the claimed foreign entities continues to do business as required. For 
this additional reason, even if the Petitioner were to overcome the deficiencies in the record with 
regard to the Beneficiary's managerial or executive position, we would need to remand the case to 
the Vermont Service Center to address this additional deficiency in the record. 
C. Managerial or Executive Capacity with the Foreign Employer 
The Petitioner failed to establish that the foreign entity employed the Beneficiary in a primarily 
managerial or executive capacity. The only description of the Beneficiary 's duties abroad was 
provided in a letter in support of the initial petition . The description was vague and provided 
minimal specifics on what the Beneficiary did on a day to 'day basis in his position as the foreign 
entity's General Manager. The duties provided merely paraphrased the applicable statue and 
regulations including duties such as: "managed the operations of the business and supervi~ed the 
senior personnel;" "set and reviewed all policies and procedures of the business;" and "conferred 
with management 
personnel" to establish "product and quality control standards, develop budget and 
cost controls." Conclusory assertions regarding the Beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner 's burden of proof. See Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afl'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at * 5 
19 
(b)(6)
Matter of H-USA LLC 
(S.D.N.Y.). Furthermore, the Petitioner has not provided any of the Beneficiary's subordinates' 
position description or educational requirements to show that the Beneficiary supervised and 
controlled the work of other supervisory, professional, or managerial employees. 
We also note that the Petitioner has not submitted evidence to establish that the Beneficiary 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. See 8 C.}t.R. § 214.2(1)(3)(iii). On the Form I-129, 
the Petitioner claims that the Beneficiary 
was employed with the foreign entity, 
from 1997 to 2009 without any interruptions. The Petitioner submitted payroll 
documents with partial translations intermittently covering the period from February of 2008 uritil 
the January of2009. The documents show one payment to the Beneficiary for the period of January 
7, 2009 to January 13, 2009 for a total of $47,113.00. Although the Beneficiary was paid a large 
sum for on pay period, the Petitioner's only additional evidence to show the actual period of 
employment is a letter from an accountant. The Petitioner also provided a letter of employment, 
dated October 16, 2008, from Public Accountant, on 
letterhead. The letter stated that the Beneficiary has been employed at "this company" since 
September 1997 as General Manager. It is unclear whether the accountant is employed by the 
foreign entity, or otherwise authorized to submit a letter verifying the Beneficiary's period of 
employment. 
Due to the vague position description provided for the Beneficiary's employment abroad, lack of 
evidence regarding subordinate employees, and contradictory payroll documents, the Petitioner has 
not shown that the Beneficiary was employed for at least one continuous year of full-time 
employment in a managerial or executive position with the foreign employer. For this additional 
reason, even if the Petitioner were to overcome the deficiencies in the record with regard to the 
Beneficiary's managerial or executive position, we would need to remand the case to the Vermont 
Service Center to address this additional deficiency in the record. 
IV. CONCLUSION 
Based on the foregoing discussion and in light of the unresolved discrepancies noted above, the 
Petitioner has not established that the Beneficiary will been employed in a managerial or executive 
capacity in the United States. Accordingly, we find that the Director appropriately revoked the 
approval of the petition, pursuant to 8 C.F.R. § 214.2(1)(9)(iii)(A)(5): "Approval of the petition involved 
gross error." 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. 
ORDER: The appeal is dismissed 
Cite as Matter of H-USA LLC, ID# 123565 (AAO Sept. 26, 2016) 
20 
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