dismissed L-1A Case: Daycare

U.S. Citizenship 
and Immigration 
Services 
In Re: 11853029 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : NOV . 27, 2020 
Form 1-129, Nonimmigrant Petition for an Intracompany Transferee 
The Petitioner, a daycare business, seeks to continue the Beneficiary's temporary employment as its 
president/chief executive officer (CEO) under the L-1 A nonirnmigrant classification for intracompany 
transferees . Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S .C. 
§ l 101(a)(15)(L). The L-lA 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 California Service Center denied the petition on the grounds that the Petitioner did 
not establish (1) that the Beneficiary would be employed in a managerial or executive capacity in the 
United States or (2) that the Petitioner had been and still was doing business. 
On appeal the Petitioner submits additional evidence and asserts that the record establishes that the 
Beneficiary will continue to be employed in an executive capacity I in the United States and that the 
Petitioner is still doing business in the United States . 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act. 8 U.S.C. § 1361. Upon de nova review , we will dismiss the 
appeal because the Petitioner has not established that the Beneficiary will be employed in an executive 
capacity in the United States. As this is a fundamental element of eligibility which the Petitioner has 
not satisfied , we will reserve the remaining issue of whether the Petitioner is still doing business in the 
United States. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA 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 
admission into the United States . Section 10l(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 capacity that is managerial, executive , or involves 
1 The Petitioner does not assert that the Beneficiary will be employed in a managerial capacity the United States. 
specialized knowledge. Id. The petitioner must also establish that the beneficiary's prior education, 
training, and employment qualify him or her to perform the intended services in the United States. 
8 C.F.R. § 214.2(1)(3). 
As defined in section 101(a)(44)(A) of the Act, the term "managerial capacity" means 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. 
As defined in section 10l(a)(44)(B) of the Act, the term "executive capacity" means 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. 
Section 101(a)(44)(C) of the Act farther provides that: 
If staffing levels are used as a factor in determining whether an individual is acting in 
a managerial or executive capacity, [U.S. Citizenship and Immigration Services] shall 
take into account the reasonable needs of the organization, component, or function in 
light of the overall purpose and stage of development of the organization, component, 
or function. An individual shall not be considered to be acting in a managerial or 
executive capacity ( as previously defined) merely on the basis of the number of 
employees that the individual supervises or has supervised or directs or has directed. 
To be eligible for L-lA nonimmigrant visa classification as a manager or an executive, a petitioner 
must show that the beneficiary will perform the high-level responsibilities set forth in the statutory 
definitions at sections 10l(a)(44)(A)(i)-(iv) and 10l(a)(44)(B)(i)-(iv) of the Act, each of which has 
four elements. If the record does not establish that the offered position meets all four elements of the 
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pertinent statutory definition, we cannot conclude that it is a qualifying managerial or executive 
position. If a petitioner establishes that the offered position meets all four elements of the applicable 
statutory definition, it 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). In determining whether 
a beneficiary's duties will be primarily managerial or executive, we consider the petitioner's 
description of the job duties, the company's organizational structure, the duties of the beneficiary's 
subordinate employees, the presence of other employees to relieve the beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding the beneficiary's actual duties and role in the business. Also, it is the duties actually 
performed, not the job title, which determine the nature of the employment. See 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). 
II. ANALYSIS 
The Petitioner, incorporated inD 2016, is the wholly owned subsidiary of.__ _______ __. 
I I located in I I Philippines. The record indicates 
that the Beneficiary was a founding member of the Philippine organization in 1998, served in two 
high-level positions until March 2018, and then transferred to the United States with an L-lA visa to 
serve as the Petitioner's president/CEO following the approval of the Petitioner's initial Form 1-129 
("new office") petition. 2 In March 2019 the instant petition was filed seeking to continue the 
Beneficiary's temporary employment in the United States based on his alleged "executive capacity" 
as the Petitioner's president/CEO. 
A. Employment in the United States 
In the Form 1-129 petition (page 23, item 7) the Beneficiary's proposed duties in the United States 
were described as follows: 
[The Petitioner] continues to require the foll-time services of a President/Chief 
Executive Officer (CEO) in order to guide, oversee and control the entity's overall 
operations, specifically, the U.S. marketing and business side. The President/CEO will 
be responsible for the essential functions of the Company, such as proactively 
developing and executing marketing pitches, managing the organization and creating 
plans for business growth and productivity. 
With its initial evidence and in response to the Director's request for evidence (RFE) the Petitioner 
provided a more expansive description of the president/CEO position, seeking to link specific job 
duties and the percentage of time spent on each to the four definitional elements of "executive 
capacity" in section 101(a)(44)(B) of the Act. Thus, the Beneficiary's job duties were presented as 
follows: 
2 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(l)(l)(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. 
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1. Directs the management of the organization or a maJor component or function of the 
organization ( 60%) 
• Serve as the face and voice of the company in dealing with vendors and parents (12%) 
• Streamline operations for maximum efficiency while upholding customer satisfaction 
and maintaining an excellent standard of quality (14%) 
• Develop relationship with the community in order to build a customer base and ensure 
the profitability of the organization (10%) 
• Analyze operations to evaluate performance of the organization and its staff in meeting 
objectives and determine areas of potential cost reduction, program improvement, or 
policy change (16%) 
• Establish budgets and marketing objectives (8%) 
As an example of the Beneficiary directing the management of the daycare business, the 
Petitioner cited the Beneficiary's hiring of a child care director, who must be a licensed 
professional under Texas law. 
2. Establish the goals and policies of the organization, component or function of the organization 
(20%) 
• Maintain total customer contentment by focusing on their requirements and preferences 
above all else (100%) 
• Oversee operations enduring [sic] employees provide clients with close personal 
attention and quality child care services (100%) 
• Hiring, and if necessary, firing of managers and upper level managements [sic] (5%) 
• Oversee director and examine sales reports frequently and make decisions accordingly 
based on the performance of the company against its pro-forma sales and profit & loss 
projections (15%) 
As examples of establishing the goals and policies of the daycare business the Petitioner 
asserted that the Beneficiary "attends meetings with banks, potential investors, vendors, 
and other strategic partners," in which the Beneficiary "negotiates terms, decides whether 
to execute agreements and partnerships, accept or reject business proposals, and take 
investment risks." The Beneficiary has sole authority to purchase or lease property and 
sign financial documents on behalf of the Petitioner. He oversees company operations with 
the help of "reports from his management team" and determines "how to improve sales 
through marketing." 
3. Exercise wide latitude in discretionary decision-making (10%) 
• Report only to foreign parent company board of trustees (10%) 
• Exercise all powers given by the corporate bylaws in acting on behalf of the parent 
company ( 100%) 
The Petitioner stated that the Beneficiary's broad decision-making authority as president 
and CEO is enshrined in the company bylaws as well as state law in Texas. 
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4. Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization (10%) 
• Develop and implement management reporting systems and processes (4%) 
• Oversee preparation and communication of monthly and annual reporting (2%) 
• Periodically review and check the performance of upper level management team and 
recommend remedial action and improvements where necessary (2%) 
• Develop, in coordination with the upper level management team, an integrated business 
plan that optimizes operational activities, and efficiency and profitability of existing 
and new property management operations (2%) 
• Ensure development of an effective organizational structure and promotion of a 
positive internal climate in which management development for succession is nurtured 
(100%) 
The Petitioner stated that the Beneficiary has complete authority in personnel matters and 
broad authority from the parent company's board of trustees to operate the U.S. business. 
We note that the total percentages of time assigned to the job duties listed under the second, third, and 
fourth elements of "executive capacity" far exceed the percentages of time the Beneficiary allegedly 
spends overall on those respective elements of "executive capacity." It is incumbent upon a petitioner 
to resolve any inconsistencies in the record by independent objective evidence. Attempts to explain 
or reconcile such inconsistencies will not suffice without competent evidence pointing to where the 
truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the 
petitioner's evidence also reflects on the reliability of the petitioner's remaining evidence. See id. The 
Petitioner has provided no explanation for the inconsistencies discussed above concerning the 
percentages of time spent by the Beneficiary on his various job duties. The inconsistent allocation of 
timeframes makes it difficult to understand the true nature of the duties and to determine the extent to 
which they may, or may not, demonstrate that the position is executive in nature. 
The Petitioner also provided organizational charts of the U.S. company, which at the time of the RFE 
response in November 2019 identified eight employees including the Beneficiary. The chart shows 
two positions directly subordinate to the president/CEO, including an assistant administrator and a 
child care director. Directly subordinate to the child care director are an assistant director and a "head 
teacher/coordinator," and beneath this latter position are a caregiver and two teachers. 
The job duties of the Petitioner's staff positions, along with applicable educational and experience 
requirements, were described as follows in the RFE response: 
Child Care Director -
Responsible for managing the curriculum, overseeing the physical facility, hiring staff 
and managing the overall image of the center. She will ensure compliance with all 
local and federal laws governing child care facilities, both regarding the physical 
environment and the staff on a daily basis, interact with the surrounding community, 
as well as teachers, students and current and interested families. 
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By law must have at least a bachelor's degree, two years of experience, and proper 
certification from the State of Texas. 
Assistant Director -
Responsible for a variety of front office responsibilities, including managing the staff: 
working with parents and interacting with children. She will assist in the hiring of new 
staff: provide training, and constantly monitor staff members to ensure they are 
performing assigned duties and responsibilities. She will constantly interact with 
parents, making themselves [sic] readily available to listen to their comments and/or 
concerns, and keep them informed of any new developments within the school. She 
will ensure that all children have appropriate paperwork on file, as required by the state, 
including health insurance information, allergies, medical details, and authorization 
from parents to administer any medicines and who may pick up their child from school. 
She will be in charge of giving tours to prospective clients, and hosting open houses 
for the current students and parents. The Assistant Director will be the "right hand" 
of the Child Care Director and will assist in creating budgets for the facility, submitting 
payroll and making sure the school has the necessary inventory or places an order when 
needed for school supplies (i.e. crayons, paper, glitter, paint, etc.), cleaning supplies, 
food, etc. 
Should have at least an associate's degree in applied science in child development or a 
closely related field. 
Teachers and Care Staff-
Responsible for implementing the already designed curriculum for their appropriate 
age group and following a full schedule of activities. They will balance their time 
between logical and social exercises. They will provide basic care and caregiving 
activities. They will evaluate children's performance to make sure they are on the right 
learning track. They will remain in constant communication with parents and update 
them on the progress of their child. They will observe children's interaction and 
promote "spirit of concord." The Teachers and Care Staff will identify behavioral 
problems and determine the right course of action to discipline. They will adhere with 
teaching standards and safety regulations as established by the school. 
In denying the petition the Director noted the Petitioner's contention that 60% of the Beneficiary's 
time is spent on activities that involve "directing the management" of the organization - the first 
element of "executive capacity" - but indicated that the job duties were too vaguely described, 
insufficiently explained, and devoid of documentary evidence to support a finding that these activities 
were primarily executive in nature. Nor did the Beneficiary's hiring of the child care director, in and 
of itself: indicate that he was directing the management of the organization. As for the job duties 
categorized under the other three elements of "executive capacity," the Director determined that they 
were likewise too vague, short on details, and lacking in documentary evidence to show that these 
activities were primarily executive in nature. The Director also noted that pay records submitted by 
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the Petitioner indicated that the daycare business suffered from frequent turnover, did not have as 
many employees as intended when the Petitioner filed its initial "new office" petition, and did not 
appear to have retained even the eight employees identified on the organizational chart submitted with 
the RFE response. 3 In the Director's view the staffing shortfall suggested that the Beneficiary would 
be required to perform non-executive duties to keep the child care business in operation, and thus, 
would not primarily be engaged in an executive capacity. For all of these reasons the Director 
concluded that Petitioner did not establish that the Beneficiary would be employed in an executive ( or 
managerial) 4 capacity in the United States. 
On appeal the Petitioner submits an "expert opinion evaluation" from a professor at the Stem School 
of Business at New York University (NYU evaluation), who asserts that the Beneficiary's position of 
president/CEO with the Petitioner is "one of executive nature." The evaluation lists the job duties 
exactly as presented by the Petitioner in this proceeding and concludes that: 
By performing the above-mentioned duties, [the Beneficiary] would be acting in an 
executive capacity, as his responsibilities would require him to direct the functions of 
major business efforts and to formulate and oversee the implementation by 
management of company-wide strategic planning and long-term and short-term 
business objectives. [The Beneficiary] will be fully responsible for duties that are 
executive in nature and involve setting company-wide policies and goals. Specifically, 
[ the Beneficiary] will direct the management of the organization, oversee operations, 
oversee the Director position, and examine sales reports frequently. His duties, as 
detailed above, in conjunction with his advanced standing in the company's hierarchy, 
attest to the fact that [ the Beneficiary's] role as President/CEO most definitely involves 
executive-level responsibilities and expectations. 
The NYU evaluation offers even less detail and analysis of the Beneficiary's job duties than the 
Petitioner did in its previous submissions. Thus, the evaluation provides no concrete examples of 
specific policies and goals established by the Beneficiary or of the Beneficiary's strategic and business 
planning. Nor does the evaluation provide any concrete examples of how the Beneficiary oversees 
the Director's position and business operations generally, except to state that he frequently examines 
sales reports (without even explaining what such reports entail for a daycare operation). Furthermore, 
the evaluation does not address the Petitioner's thin staffing level and does not explain how the staffing 
would be sufficient to allow the Beneficiary to focus primarily on executive duties. In short, the NYU 
evaluation has little evidentiary weight in support of the Petitioner's claim that the Beneficiary is 
employed in an "executive capacity." 
The Petitioner asserts that the regulations of the Texas Department of Family and Protective Services 
prescribe that the Beneficiary, as the daycare center's permit holder, has the following responsibilities 
under 40 TAC (Texas Administrative Code)§ 746/20-1: 
(1) Developing and implementing your child-care center's operational policies, which must 
comply with or exceed the minimum standards specified in this subchapter; 
3 The Petitioner's federal income tax return for 2019 recorded a total expenditure of $74,947 for salaries and wages that 
year. (Form 1120, page 1, line 13.) The total wages paid would not seem to reflect eight full-time employees. 
4 The Petitioner does not assert that the Beneficiary was or will be employed in a managerial capacity. 
7 
(2) Developing written personnel policies, including job descriptions, job responsibilities, and 
requirements; ... 
(3) Designating a child-care center director who meets minimum standard qualifications; ... 
(9) Complying with the child-care licensing law found in Chapter 42 of the Human 
Resources Code, the applicable minimum standards, and other applicable rules in the Texas 
Administrative Code. 
According to the Petitioner these duties are similar to the four elements of "executive capacity" in 
section 10l(a)(44)(B) of the Act. The Petitioner also claims that the four elements of "executive 
capacity" are reflected in the TAC's definition of a child care operation's "controlling person" which 
40 TAC§ 745.901 states is any person who: 
( 1) Is the owner of the operation or member of the governing body of the operation, including, 
as applicable, an executive, an officer, a board member, a partner, a sole proprietor and the 
sole proprietor's spouse, or the primary caregiver at a child-care home and the primary 
caregiver' s spouse; 
(2) Manages, administers, or directs the operation or its governing body, including a child care 
director or a licensed administrator; or 
(3) Either alone or in connection with others has the ability to influence or direct the 
management, expenditures, or policies of the operation. For example, a person may have 
influence over the operation because of a personal, familial, or other relationship with the 
governing body, manager, or other controlling person of the operation. 
As the Beneficiary is recognized as the "controlling person" of the Petitioner's day care business with 
the authority to manage, administer or "direct the operation" or the ability to influence or "direct the 
management, expenditures, and policies of the operation," the Petitioner contends that the Beneficiary 
is employed in an "executive capacity" under Texas law, consistent with the definition of "executive 
capacity" under section 10l(a)(44)(B) of the Act. The Petitioner also asserts that the Beneficiary is 
relieved of performing day-to-day operational tasks by his immediate subordinate, the child care 
director. As prescribed at 40 TAC§ 745.1003, a child care director must ensure: 
(1) The child-care center's daily operation is administered in compliance with the minimum 
standards specified in the chapter; 
(2) All employees comply with the minimum standards; 
(3) All employees have assignments that match their skills, abilities, and training; 
(4) All employees are supervised. Supervision includes, but is not limited to, knowing what 
the employees are doing and ensuring that they fulfill their assignments and 
responsibilities. 
Since the child care director allegedly relieves the Beneficiary of performing the operational duties 
listed in the above regulation and, according to the Petitioner, must have a bachelor's degree under 
Texas law, the Petitioner asserts that the Beneficiary directs the work of a degreed professional. The 
Petitioner's claim that under Texas law a child care director must have at least a bachelor's degree is 
not correct. The pertinent regulation at 26 TAC § 746.1015 provides that "the director of a child-care 
center licensed for 13 or more children must be at least 21 years of age, have a high school diploma 
or its equivalent, and meet one of the following combinations of education and experience .... " An 
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attached graphic lists seven different combinations of education and experience, the first of which is 
a bachelor's degree with at least one year of experience and the next six of which specify various 
educational credentials that are less than a bachelor's degree with experience of two or three years. 5 
Thus, an individual in Texas may qualify for a position as child care director with educational 
credentials of less than a bachelor's degree. Since the minimum educational requirement for a 
professional is generally a bachelor's degree, a child care director in Texas is not a professional 
position, regardless of whether a given day care employer may require such a degree. Thus, in 
overseeing the work of his direct subordinate, the child care director, the Beneficiary is not directing 
the work of a professional, as claimed by the Petitioner. 
Nor does the record show that any of the subordinate positions are primarily managerial or supervisory 
in nature. The statutory definition of the term "executive capacity" focuses on a person's elevated 
position. Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of an organization or major component or function thereof Section 
10l(a)(44)(B) of the Act. To show that a beneficiary will "direct the management" of an organization 
or a major component or function of that organization, a petitioner must show how the organization, 
major component, or function is managed and demonstrate that the beneficiary primarily focuses on 
its broad goals and policies, rather than the day-to-day operations of such. 
The teachers and care staff positions, as described by the Petitioner, are exclusively devoted to 
providing the daily services of child care. The duties of the Beneficiary's assistant administrator are 
not specifically described, but there is no indication they include managerial or supervisory activities 
since the position has no subordinates and provides direct assistance to the president/CEO. As for the 
child care director, the duties of this position do appear to encompass some management or supervisory 
activities with respect to staff and curriculum oversight, but the bulk of the duties, as described by the 
Petitioner, involve day-to-day tasks of running the daycare operation. Finally, the assistant director, 
subordinate to the child care director, has some staff management responsibilities but the vast majority 
of the duties of this position involve day-to-day operational tasks of the business. In sum, all seven 
positions subordinate to the Beneficiary are either exclusively or primarily involved with providing 
the daily services of the child care center and completing the day-to-day operational tasks of the 
business. Thus, whatever direction the Beneficiary provides to his subordinates does not involve any 
employees whose duties are primarily supervisory or managerial in nature to allow the beneficiary to 
primarily focus on executive duties. 
The definition of "executive capacity" contains four elements, as previously indicated, and the 
Petitioner must show that the position of president/CEO meets each of the four elements. The evidence 
of record does not show that the Beneficiary meets the first definitional element of "executive 
capacity" at section 101(a)(44)(B)(i) of the Act, which requires that he "direct[] the management of 
[the daycare operation] or a major component or function of the organization." As discussed above, 
the evidence ofrecord does not indicate that any of the Beneficiary's subordinates perform primarily 
managerial or supervisory tasks in the performance of their jobs. Since the record does not show that 
any positions subordinate to the Beneficiary are primarily managerial or supervisory in nature, the 
Petitioner has not demonstrated that the Beneficiary "directs the management" of the organization or 
5 See casetext. com/regulation/texas-administrative-code/title- 26-heal th-and-human-services/part-1- health-and-human­
services-commission/ chapter- 7 46-minimum-standards- for-child-care-centers/ subchapter-6-personnel/ division 
(last visited Oct. 21, 2020). 
9 
of any component or function of the daycare operation. In fact, the Petitioner has not explained how 
any of the five job duties listed for the Beneficiary under the category of "directs the management of 
the organization" - which allegedly comprise 60% of the Beneficiary's time - actually fit under that 
category since none of the five duties incorporates a discernible management direction component. 
Executive capacity requires that the Petitioner show that the Beneficiary will perform certain high­
level responsibilities, and that the Beneficiary will be primarily engaged in 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). An individual will not be deemed a multinational 
executive under the statute simply because they have an executive title or because they direct the 
enterprise as a co-owner or senior management employee. 
In this case the Petitioner has not established that the Beneficiary has an elevated position in an 
organization with subordinate management or supervisory level employees to allow the Beneficiary 
to focus primarily on executive functions. Therefore, the Petitioner has not established that the 
Beneficiary will "direct the management" of its organization, as required to meet the first definitional 
element of"executive capacity" at section 10l(a)(44)(B)(i) of the Act. Since the Beneficiary does not 
meet all four elements of "executive capacity" he is not eligible for L-lA nonimmigrant visa 
classification as an intracompany transferee. 
As previously indicated, the burden is on the petitioner in visa petition proceedings to establish 
eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). To meet this 
burden, the petitioner must prove by a preponderance of the evidence that it and the beneficiary are 
qualified for that benefit. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The 
"preponderance of the evidence" standard requires that the evidence demonstrate that the petitioner's 
claim is "probably true," where the determination of "truth" is made based on the factual circumstances 
of each individual case. Id. (quoting Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In 
evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its 
quality. Id. Thus, in adjudicating the petition pursuant to the preponderance of the evidence standard, 
USCIS must examine each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to determine whether the fact to be 
proven is probably true. In accord with the foregoing analysis, we conclude that the Petitioner has not 
met its burden of proof that the Beneficiary will be employed in an "executive capacity." 
B. Doing Business in the United States 
As previously indicated, we reserve the issue of whether the Petitioner is still doing business in the 
United States. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary will be employed in an "executive capacity" in 
the United States. The appeal will be dismissed for this reason. 
ORDER: The appeal is dismissed. 
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