dismissed L-1A Case: Gemstones

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
) 
MATTER OF P-G- LLC DATE: SEPT. 9, 2016 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a gemstones seller, seeks to extend the Beneficiary's temporary employment as its 
"executive operations" under the L-1 A nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner had not established: (1) a qualifying relationship with the Beneficiary's claimed foreign 
employer; (2) that it was doing business; (3) that it had sufficient physical premises to accommodate 
its claimed employees; (4) that the Beneficiary had one continuous year of full-time employment 
with a qualifying foreign employer prior to his admission to the United States; and (5) that the 
Beneficiary will be employed in a managerial or executive capacity for the U.S. entity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record demonstrates by a preponderance of the evidence that the 
Petitioner and Beneficiary qualify under the pertinent regulations. 1 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the proposed beneficiary in a managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. Section 101 ( a)(15)(L) of the Act. In addition, the 
beneficiary must seek to enter the United States temporarily to continue rendering his or her services 
1 
The Petitioner submitted documentation to support the L-1 A petition, including evidence regarding the proffered 
position, its proposed employees, and business operations as well as the foreign entity and its operations and 
employees. While we may not discuss every document submitted, we have reviewed and considered each one. 
Matter of P-G- LLC 
to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized 
knowledge capacity. Id. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
(i) Evidence that the petitioner and the organizat~on which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) ofthis section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the 
opening of a new office, may be extended by filing a new Form 1-129, accompanied by the 
following: ' 
(A) Evidence that the United States and foreign entitles are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (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/ 
management or executive capacity; and 
(E) Evidence ofthe financial status ofthe United States operation. 
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Matter of P-G- LLC 
II. QUALIFYING RELATIONSHIP 
The Director denied the petition, in part, based on a finding that the Petitioner did not establish that it 
has a qualifying relationship with the Beneficiary's foreign employer. To establish a "qualifying 
relationship" under the Act and the regulations, a petitioner must show that a beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" 
offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 
101(a)(15)(L) ofthe Act; 8 C.P.R. § 214.2(1). 
The pertinent regulations at 8 C.P.R. § 214.2(1)(1)(ii) define the term "qualifying organization" and 
related terms as follows: 
(G) QualifYing organization means a United States or foreign firm, corporation, or 
other legal entity which: 
(I) 
(J) 
(K) 
(L) 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) ofthis section; 
Parent means a firm, corporation, or other legal entity which has subsidiaries. 
Branch means an operating division or office of the same organization housed 
in a different location. 
Subsidiary means a firm, corporation, or other legal entity of which a parent 
' 
owns, directly or indirectly, more than half of the entity and controls the 
entity; or owns, directly or indirectly, half of the entity and controls the entity; 
or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has 
equal control and veto power over the entity; or owns, directly or indirectly, 
less than half of the entity, but in fact controls the entity. 
Affiliate means 
(1) One of two subsidiaries both of which are owned and controlled by 
the same parent or individual, or 
(2) One of two legal entities owned and controlled by the samd group of 
individuals, each individual owning and controlling approximately 
the same share or proportion of each entity. 
3 
(b)(6)
Matter of P-G- LLC 
A. Evidence of Record 
The Petitioner 
filed the Form I-129 on October 8, 2015. On the Form I-129, the Petitioner indicated 
that it has five current employees in the United States and a projected gross annual income of 
$200,000. On the L Classification Supplement to Form I-129, the Petitioner identified its parent 
company as a company organized in Thailand, and stated that it is a 
wholly-owned subsidiary of this foreign company. The Petitioner claimed the Beneficiary was 
employed at from April2009 to August 2012. 
The initial evidence also included the Petitioner's business plan, which stated that the Petitioner is 
the wholly-owned subsidiary of the foreign entity. The record further included a list of the foreign 
entity's seven shareholders and the number of shares owned by each of the shareholders. This list 
identified five individual Thai shareholders holding a total of 20,400 shares and two individual 
foreigners holding a totaJ of 19,600 shares. One of the individuals identified as a foreigner, 
is shown owning 19,200 shares ofthe total40,000 shares issued. 
In response to the Director's request for evidence (RFE) on this issue, the Petitioner submitted a 
copy of the foreign entity's independent auditor's report, dated April 5, 2015. The report did not 
refer to the foreign entity's ownership of the Petitioner or provide any other information relevant to 
the claimed qualifying relationship. ) 
Based on the lack of supporting evidence, the Director denied the petition concluding, in part, that 
the Petitioner had not established a qualifying relationship with the Beneficiary's foreign employer. 
On appeal, the Petitioner asserts that its "Certificate of Formation " shows two managing members: 
(1) who is a 49 percent shareholder in the U.S. entity; and (2) the Beneficiary who 
is a 51 percent shareholder in the U.S. entity. The Petitioner also submits its "Certificate of Filing" 
filed on May 12, 2014, and a "Certificate of Correction" filed on September 19, 2014, both filed 
with the Texas Secretary of State. The one-page Certificate of Filing does not identify the members 
of the Petitioner's limited liability company. The Certificate of Correction indicates that the 
registered agent and the registered office address are inaccurate and submits corrected information. 
The Certificate of Correction also adds as a member, but does not identify the 
proportion of shares he holds in the Petitioner. The Certificate of Correction also deletes ' 
' as a member of the limited liability company. Finally, the Petitioner claims on appeal 
that "is the 97% shareholder " of the foreign entity, 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that it has a qualifying relationship 
with the foreign entity. 
4 
(b)(6)
Matter of P-G- LLC 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. See Matter of Church Scientology Int 'l, 19 I&N Dec. 
593 (BIA 1988); see also Matter of Siemens Me d. Sys., Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm'r. 1982). In the context of this visa petition, ownership refers to 
the direct or indirect legal right of possession of the assets of an entity with full power and authority 
to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matfer of Church Scientology Int'l, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, a certificate of formation or 
organization of a limited liability company (LLC) alone is not sufficient to establish ownership or 
control of an LLC. LLCs are generally obligated by the jurisdiction of formation to maintain records 
identifying membe~s by name, address, and percentage of ownership and written statements of the 
contributions made by each member, the times at which additional contributions are to be made, 
events requiring the dissolution of the limited liability company, and the dates on which each 
member became a member. These membership records, along with the LLC' s operating agreement, 
certificates of membership interest, and minutes of membership and management meetings, must be 
examined to determine the total number of members, the percentage of each member's ownership 
interest, the appointment of managers, and the degree of control ceded to the managers by the 
members. Additionally, a petitioning company must disclose all agreements relating to the voting of 
interests, the distribution of profit, the management and direction of the entity, and any other factor 
affecting actual control of the entity. See Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 
(Comm'r 1986). Without full disclosure of all relevant documents, U.S. Citizenship and 
Immigration Services (USCIS) is unable to determine the elements of ownership and control. 
Here, the Petitioner identifies itself as a limited liability company and provides conflicting and 
unsubstantiated information regarding its ownership.2 The record does not include a copy of the 
initial certification of formation for the Petitioner, its operating agreement, or any record identifying 
the Petitioner's members and the proportion of their ownership claim. "[G]oing 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. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Even if we considered the 
Petitioner's claim that the Beneficiary owns a 51 percent interest in the Petitioner, the record shows 
that he does not own any interest in the foreign entity. Thus, the Petitioner and the foreign entity are 
not affiliates through the Beneficiary's claimed interest in the Petitioner. 
While the Petitioner continues to assert on appeal that it is a wholly-owned subsidiary of the 
Beneficiary's foreign employer, it submits a certificate of correction which adds 
2 On appeal, the Petitioner claims that the foreign parent company and the Beneficiary are each 50 percent shareholders 
of the Petitioner and also asserts that two individuals, and the Beneficiary, own 49 percent and 
51 percent, respectively of the Petitioner. The Petitioner does has not resolved this inconsistency with independent, 
objective evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
5 
(b)(6)
Matter of P-G- LLC 
an individual, as a member with an unspecified ownership share. The Petitioner also incorrectly 
states that this claimed minority shareholder is the majority shareholder of the foreign entity. The 
record, however, shows that is a minority shareholder in the foreign entity, owning 
48 percent, or 19,200 shares out of 40,000 shares, of the foreign entity. Accordingly, 
does not own a controlling share of the foreign entity and the Petitioner has not 
substantiated that he owns a 49 percent interest in the Petitioner. The Petitioner has not established 
that owns and controls the Petitioner or the foreign entity; the Petitioner has not 
established that it and the foreign entity are affiliates through the minority ownership of 
The record does not include evidence that the Petitioner is one of two subsidiaries, both of which are -, 
owned and controlled by the same parent or individual. Even if the Beneficiary and 
are the only two owners of the Petitioner, this same two-person group does not own and 
control the foreign entity. The Petitioner has not provided evidence establishing that the Petitioner 
and the foreign entity are affiliates owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each entity. 
Likewise, the Petitioner has not corroborated its claim that it is a wholly-owned subsidiary of the 
foreign entity. The record does not include corroborating documentary evidence that the 
Beneficiary's claimed foreign employer owns, directly or indirectly, more than half of the Petitioner 
and also controls the Petitioner. 
As the Petitioner emphasized on appeal, it must establish by a preponderance of evidence that it and 
the Beneficiary are qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 2010). In evaluating the evidence, eligibility is to be determined not by the quantity of 
evidence alone but by its quality. !d. The Petitioner has not submitted consistent, probative 
evidence establishing that it has a qualifying relationship with the Beneficiary's foreign employer. 
III. NEW OFFICE 
EXTENSION 
A. Doing Business 
The Director denied the petition, in part, based on a finding that the Petitioner did not establish that it 
was doing business. 
The Petitioner here is seeking an extension of its new office petition.3 Accordingly, the regulation at 
8 C.P.R. § 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing business 
for the previous year. The term "doing business" is defined in the regulations as "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 
3 The Petitioner received approval for a new office petition granting the Beneficiary L-1 A status on October 9, 2014, to 
October 8, 2015. 
6 
Matter of P-G- LLC 
States and abroad." 8 C.F.R. § 214.2(1)(1)(ii)(H). There is no provision in the regulations allowing 
for the extension of this one-year period. If the business is not sufficiently operational after one 
year, a petitioner is ineligible for an extension by regulation. 
The Petitioner claimed that it did not start its business until November 2014, when the Beneficiary 
arrived in the United States. To establish that it had been doing business since that time, the 
Petitioner submitted copies of four receipts for funds it claimed were received in February and 
March 2015, ten purchase orders/invoices for orders during the February through August 2015 time 
frame, and bank statements for the time period between May and August 2015. The Petitioner also 
submitted an unsigned copy of a Texas Franchise Tax No Tax Information Report for the 2014 year 
(Texas Franchise Tax form) and an accountant's compilation report with the Petitioner's statement 
of income and expenses, balance sheet, and a copy of the Petitioner's five-page single-entry 
handwritten ledger attached. The record does not include evidence that the Texas Franchise Tax 
form was filed with the appropriate government agency and the accountant's compilation report 
specifically states that the attached financial statelllents were not audited or reviewed. 
The Director determined that the receipts and invoices submitted did not correspond with the 
Petitioner's bank statements and that the unsigned Texas Franchise Tax form and the accountant's 
compilation report were insufficient to establish that the Petitioner was doing business. 
On appeal, the Petitioner submits some of the same information and a copy of a photograph of the 
Petitioner's booth at an exhibition. The Petitioner did not address the deficiencies in the record 
pointed out by the Director but asserts that the sales and receipts of sale establish that it is doing 
business. 
Upon review of the totality of the evidence in the record, we do not find sufficient probative 
evidence demonstrating that the Petitioner is engaged in the regular, systematic, and continuous 
provision of goods and/or services. First, the Petitioner did not submit any evidence or explanation 
regarding its bank statements and why the bank statements do not reflect the Petitioner's claimed 
receipt of funds for its goods. The Petitioner did not submit a copy of its Texas Franchise Tax form 
showing that it was filed with the appropriate Texas agency. The photograph of the Petitioner's 
booth at an exhibition is not accompanied by the name of the exhibition event, the date of the 
exhibition, a catalogue showingthe Petitioner's participation at the event, or any other information 
corroborating the Petitioner's attendance. Even when considering the Petitioner's receipts, purchase 
orders, and invoices, the limited number of these documents over a one-year period establishes at 
best that the Petitioner operates on an intermittent basis. We note, for example, that the Petitioner 
submits the same limited number of receipts, purchase orders, and invoices in support of the petition, 
in response to the Director's RFE, and on appeal. Upon review of the totality of the record, the 
Petitioner has not established that it is doing business in a regular, systematic, and continuous 
manner. 
7 
Matter of P-G- LLC 
B. Physical Premises 
The Director also denied the petition, in part, based on a finding that the evidence of record did not 
establish that the Petitioner maintained sufficient physical premises to operate its business. 
\ 
The Petitioner initially submitted a one-year lease for an office of undetermined size expiring on 
July 31, 2015, and an amendment to the lease extending the expiration date to July 31, 2016. The 
lease indicates that rent for the office space is $400 per month. In response to the Director's RFE, 
requesting information on the size of the office, the Petitioner resubmitted the lease with a 
handwritten note indicating the square footage of the office is 225 feet. The record also included 
copies of handwritten receipts for rent paid. Some of the receipts are illegible, however it appears 
the Petitioner paid a total of $6,400 in rent.4 
Upon review of the totality of the evidence of record, the Director found that the record did not 
include any information from the landlord confirming the Petitioner's handwritten notation 
regarding the square footage of the rented office. The Director recognized that the Petitioner had 
submitted receipts showing payment of rent but found that the record did not include any supporting 
·evidence showing that a monetary transaction had occurred, such as bank statements, processed 
checks, or a statement from the landlord. The Director also determined that the photographs 
submitted did not establish that the office space could support the Petitioner's five claimed current 
employees or the 18 employees listed on the Petitioner's organizational chart. 
The Petitioner does not address these deficiencies on appeal, and resubmits copies of the lease, the 
amendment to the lease, and the same rental receipts. 
A petitioner is not absolved of the requirement to maintain "sufficient physical premises" simply 
because it has been in existence for more than one year. In order· to be considered a qualifying 
organization, a petitioner must be doing business in a regular, systematic, and continuous manner. 
See 8 C.F.R. §§ 214.2(1)(1)(ii)(G) and (H). Inherent to that requirement, a petitioner must possess 
sufficient physical premises to conduct business. 
In this case, the Petitioner does not address the insufficiency of its claimed office space to 
accommodate its number of current or proposed employees. The Petitioner does not explain the lack 
of evidence corroborating the handwritten rental receipts, such as its bank statements, processed 
checks, or a statement from the landlord on letterhead. Additionally, the information on the receipts 
that is legible does not include all the months the Petitioner claims to have occupied the premises. 
Upon review, the record does not include sufficient probative evidence substantiating that the 
Petitioner has sufficient physical premises to conduct its business. 
4 It is not possible to determine the time period covered by the rent paid as the receipts are not all legible and appear to 
include duplicate months. · 
8 
Matter of P-G- LLC 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition, in part, based on a finding that the Petitioner did not establish that: 
the Beneficiary will be employed in a managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component 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) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the empl'oyee 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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS must take into account the reasonable needs of the organization, in 
9 
(b)(6)
Matter of P-G- LLC 
light of the overall purpose and stage of development of the organization. See section 101(a)(44)(C) 
ofthe Act. 
A. Evidence of Record 
The Petitioner states on the Form I-129 that it is in the business of manufacturing, selling, and 
finishing diamonds and gemstones. The Petitioner claims that 1t employs five individuals in the 
United States. A letter signed by managing director of the foreign entity, provided 
a list of the Beneficiary's duties as "executive operations" for the Petitioner as follows: 
• Directs the execution [sic] of the organization, and oversee[s] the overall 
operations of the corporation involved in the sales, marketing, customer 
relation[ s ], distribution, and wholesale operations. 
• Involvement in the expansion of the product offering and efforts in expansion of 
additional future venture. 
• Establishes the goals and policies of the organization, component, or function. 
Involvement in the expansion of the product offering and efforts in expansion of 
future ventures. 
• Exercises wide latitude in discretionary decision-making aboyt the business deals. 
• Will be coordinating across organization and with external entities, to support the 
president in its [sic] endeavors to interface with professional experts to accurately 
reflect the fine deals. 
• Further, in this capacity, you will ensure availability of funds for expansion of the 
business. 
• You will be directly dealing with the banks and financial institutes, and 
intermediaries for establishing business line of credit, and smooth financial 
operations ofthe company. 
• Will be involved in the corporate representation by attending meetings, seminars, 
visits, and participation in other industry events. 
• , Will be in direct coordination with the management team to handle challenges of 
the business. 
• Will be providing logistic and analytic support to improve the operational 
efficiency in terms of working capital, and overall cost of the business. 
The Petitioner submitted a proposed organizational chart identifying the Beneficiary in the position 
of Executive Operations and depicting the positions of sales manager, marketing 'manager, 
accountant, office manager, shipment supervisor, and exhibition coordinator reporting directly to the 
Beneficiary. The chart also showed three salespersons reporting to the sales manager and marketing 
manager positions, as well as seven staff persons reporting to the office manager, shipment 
supervisor, and exhibition coordinator. The Beneficiary was the only individual identified by name 
on the chart. The Petitioner also submitted copies of the driver's licenses of four individuals and 
identified them as subtontractors. 
10 
Matter of P-G- LLC 
In response to the Director's RFE on this issue, the Petitioner submitted four undated commission 
agreements signed by four individuals to represent the Petitioner in selling goods. 5 The Petitioner 
also updated its organizational chart to show these four individuals as the salespersons reporting to 
the Petitioner's sales manager. 
Upon review of the record, the Director determined that the Petitioner had not provided a detailed 
description of the Beneficiary's proposed duties for the Petitioner, had not substantiated the 
employment of ~ny of the employees claimed on the organizational chart, and had not submitted 
evidence that it had paid any of the individuals identified as subcontractors. 
On appeal, the Petitioner emphasizes that the Beneficiary is performing in an executive capacity and 
asserts that the Director erred when determining that it had not submitted a detailed job description. 
The Petitioner contends that the Director ignored the documents submitted and resubmits the 
commission contracts and its updated organizational chart. 
B. Analysis 
Upon review of the petition and the evidence of record, including the Petitioner's assertions on 
appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed in a 
managerial or executive capacity under the extended petition. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description 
of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate 
whether such duties are in a managerial or executive capacity. Id. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir: 2006); Champion World, 940 F.2d 1533. 
The Petitioner here has submitted a broad overview of the Beneficiary's duties. For example, the 
Petitioner indicated that the Beneficiary would direct the organization and oversee the operations of 
the company, establish the goals and policies of the organization, component, or function, and 
exercise wide latitude in discretionary decision making about business deals. This portion of the 
description does not convey the actual tasks the Beneficiary will perform but rather paraphrases the 
regulations. 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 
5 The four individuals who signed the commission agreements appear to be the same individuals whose driver's licenses 
were initially submitted and identified as subcontractors. 
1 1 
Matter of P-G- LLC 
matter of reiterating the regulations. 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). 
The Petitioner continues by indicating that the Beneficiary will attend meetings, seminars, and 
participate in industry events, will direct the coordination of the management team, and will be 
involved in product expansion and future ventures. The Petitioner, however, does not describe what 
the Beneficiary will be doing when carrying out these vague job responsibilities and broadly-cast 
business objectives. We cannot ascertain if these duties encompass primarily managerial or 
executive duties or whether they are ordinary operational tasks to continue the Petitioner's routine 
operations. The actual duties themselves reveal the true nature of the employment. !d. 
The Petitioner also stated that the Beneficiary will ensure the availability of funds for business 
expansion and reiterates that the Beneficiary will deal directly with banks to establish lines of credit 
and the smooth operations of the company. Again, however the Petitioner does not describe the 
Beneficiary's daily tasks associated with banking, with expanding the business, or what he will be 
doing to ensure the smooth operations of the company. The Petitioner also claims that the 
Beneficiary "[w]ill be coordinating across organization and with external entities, to support the 
president in its [sic] endeavors to interface with professional experts to accurately reflect the fine 
deals." It is not clear who the Beneficiary will be coordinating with, what president he will be 
supporting, or the Beneficiary's involvement in accurately reflecting fine deals. Again, it is not 
possible to ascertain the tangible duties that will engage the Beneficiary from the general description 
provided. There is insufficient detail and supporting documentation to conclude that he will 
primarily perform executive or managerial duties. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 101 (a)( 44) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" of an executive or managerial nature. Sections 
101(A)(44)(A) and (B) of the Act. While the Beneficiary may exercise discretion over the 
Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, the position descriptions alone are insufficient to establish that his 
actual duties are primarily managerial or executive in nature. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees tQ relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
The Petitioner claims that the Beneficiary will perform primarily in an executive capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and 
12 
Matter of P-G- LLC 
that person's authority to direct the organization. See section 101(a)(44)(B) of the Act, 8 U.S.C. 
§ 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" 
and "establish the goals and policies" of that organization. Inherent to the definition, the 
organization must have a subordinate level of managerial employees for a beneficiary to direct and a 
beneficiary must primarily focus on the broad goals and policies of the organization rather than the 
day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as an 
owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization." !d. 
A review of the totality of the record reveals that the Beneficiary does not have a subordinate level 
of managerial employees to direct. We have reviewed the Petitioner's organizational chart and note 
that it includes three managers, a supervisor, a coordinator, and an accountant all reporting directly 
to the Beneficiary. However, the record does not include probative evidence that the Petitioner 
employs individuals in any of these positions. 6 As there are no other employees in these or other 
proposed departments, it is reasonable that the Beneficiary is the individual performing the 
marketing, banking, operational, first-line supervisory duties, and the administrative tasks of the 
business. If the Petitioner is still in the process of developing a management team, the Beneficiary is 
not yet managing or directing management employees. 
Upon review, the Petitioner has not provided a detailed description of the Beneficiary's duties 
demonstrating that he will perform tasks primarily in an executive capacity. The Petitioner has not 
credibly identified a subordinate level of managerial employees for the Beneficiary to direct. The 
record does not demonstrate that the Beneficiary will primarily focus on the broad goals and policies 
of the organization rather than the day-to-day operations of the enterprise 
Although the Petitioner does not claim that the Beneficiary will perform primarily in a managerial 
capacity, we will review the record on this issue. The statutory definition of "managerial capacity" 
allows for both "personnel managers" and "function managers." See sections 101(a)(44)(A)(i) and 
(ii) of the Act. Personnel managers are required to primarily 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(l)(l)(ii)(B)(4). If a petitioner claims that a 
beneficiary directly supervises other employees, those subordinate employees must be supervisory, 
professional, or managerial, and the beneficiary must have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. Sections 
, 101(a)(44)(A)(ii)-(iii) ofthe Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(3). 
6 - The Petitioner also claims to employ four salespersons, individuals previously identified as commissioned 
subcontractors. 
13 
Matter of P-G- LLC 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a 
United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation"). Section 10l(a)(32) ofthe Act, 8 U.S.C. § 1101(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." 
Here, the Petitioner has not submitted probative evidence demonstrating that it employs anyone. 
The record does not include evidence that wages have been paid. We have reviewed the four 
undated commission agreements and find that these documents do not establish that the Petitioner 
employs these individuals. While these individuals may work as commissioned subcontractors, the 
record does not include evidence of when these individuals began to sell gems on the Petitioner's 
behalf, if they have actually sold any gems and if so in what capacity, or if they are continuing to do 
so. The record does not include evidence that commissions or salaries were ever paid. ·The 
Petitioner has not established that it has any employees or subcontractors subordinate to the 
Beneficiary's position. The record does not include sufficient probative evidence to establish that 
the Beneficiary is primarily supervising and controlling the work of other supervisory, professional, 
or managerial employees. 
The Petitioner has not established, in the alternative, that the Beneficiary will be employed primarily 
as a "function manager." The term "function manager" applie·s generally when a beneficiary does 
not supervise or control the work of a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See section 101 (a)( 44 )(A)(ii) of the Act. 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that a 
beneficiary will manage an essential function, a petitioner must clearly .describe the duties to be 
performed in managing the essential function, i.e., identify the function with specificity, articulate 
the essential nature of the function, and establish the proportion of a beneficiary's daily duties 
dedicated to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a 
petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will 
manage the function rather than perform the duties related to the function. 
Here, the Petitioner's general descriptions of the Beneficiary's duties do not include sufficient 
information regarding what the Beneficiary will actually do, such that we may conclude that the 
Beneficiary will manage a specific function. The Petitioner does not articulate the specific function 
the Beneficiary will manage and how it relates to the Petitioner's gem sales. Of most significance is 
the lack of evidence in the record regarding who will perform any duties necessary to implement the 
Petitioner's objectives regarding its marketing, shipping, and expansion other than the Beneficiary. 
The Petitioner has not provided an allocation of the Beneficiary's time to daily duties attributed to 
managing an essential function. Based on the current record, the Petitioner has not submitted a 
detailed description of the ~duties and the time the Beneficiary ·spends on those specific defined 
duties. Thus, ~e cannot ascertain . what proportion of duties would be managqjal and 
14 
(b)(6)
Matter of P-G- LLC 
non-managerial. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Accordingly, 
we cannot conclude that the Beneficiary primarily performs managerial duties. 
We note that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa petition for classification as a 
multinational manager or executive.7 See section 101(a)(44)(C) of the Act, 8 U.S.C. 
§ 1101(a)(44)(C). However, it is appropriate for USCIS to consider the size of the petitioning 
Qompany in conjunction with other relevant factors, such as the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that 
does not conduct business in a regular and continuous manner. See, e.g, Family Inc., 469 F.3d 
1313; Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be 
especially relevant when USCIS notes discrepancies in the record and fails to believe that the facts 
asserted are true. See Systronics, 153 F. Supp. 2d at 15. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
will be employed in a managerial or executive capacity under the extended petition. 
V. FOREIGNEMPLOYMENT 
The Director denied the petition, in part, based on a finding that the Petitioner did not establish that 
the Beneficiary had one continuous year of full-time employment with a qualifying foreign employer 
prior to his admission to the United States. 
A. Evidence ofRecord 
On the Form I-129, the Petitioner claimed the Beneficiary was employed at 
in Thailand from April 2009 to August 2012. In a letter signed by the managing director of the 
foreign entity, stated that the Beneficiary spent 35 percent of his 
time directing the sales management of the organization, 35 percent of his time establishing goals 
and policies of the organization in the sales sector, and 30 percent of his time exercising wide 
latitude in discretionary decision-making. provided a narrative of the Beneficiary's 
duties associated with each of these responsibilities. noted that the Beneficiary, in the 
position of "Sales Executive," was independent in making decisions, setting goals for the company, 
staff selection, correspondence with customers and retail clients to expand the business, and received 
7 We acknowledge the Petitioner's reference to Young China Daily v. Chappell, 742 'F. Supp. 552 (N.D. Cal. 1989), 
when asserting that the Director erroneously focused on the size of the Petitioner in reviewing the petition and reaching 
her decision. While we concur that USCIS should not limit its review to the size of a petitioner and must consider the 
actual responsibilities of the proffered position, we find that it is reasonable to assume that the size of an employer's 
business has or could have an impact on the claimed duties of a particular position. See EG Enters., Inc. v. Dep 't of 
Homeland Sec., 467 F. Supp. 2d 728 (E. D. Mich. 2006). In this matter, the record includes a generic job description for 
the Beneficiary, an organizational chart that depicts potential employees, and insufficient evidence that the Petitioner 
employs anyone to carry out the operational and administrative duties of the operation relieving the Beneficiary from 
performing primarily non-qualifying duties. 
15 
(b)(6)
Matter of P-G- LLC 
only general supervlSlon from the board of directors. stated that during the 
Beneficiary's stay in the United States, his responsibilities would be handled by the heads of the 
management team and that upon his completion of duties in the United States would resume his 
responsibilities as a sales executive with 
The Director, in an RFE to the Petitioner, noted that the Beneficiary had submitted an online 
nonimmigrant visa application to the U.S. Department of State on September 17, 2012. And that in 
the visa application, the Beneficiary listed his present employer as "Self-Employed," and described 
his employment as: "I am commission agent for precious stones buyers from other countries. My 
primary object is to fulfill their orders." The Beneficiary also responded "no" to the question 
regarding any previous employment. The Director pointed out that the information on the 
Beneficiary's visa application conflicted with the Petitioner's claim regarding the Beneficiary's 
foreign employment. In the RFE, the Director instructed the Petitioner to provide an explanation for 
the conflict and corroborating evidence, such as copies of the Beneficiary's foreign pay (records, 
personnel records, training records, and tax records, to corroborate his claimed employment with 
In response to the RFE, the Petitioner claimed that when the Beneficiary applied for his 
nonimmigrant visa, on September 17, 2012, he was no longer employed with 
and that he had been engaged by the company who paid for his trip, as a 
gem consultant. The Petitioner claimed further that the Beneficiary understood the previous 
employment question on the visa application to pertain to previous employment with 
and because he had not been previously employed by this company, responded in the 
negative. 
The Director acknowledged the Petitioner's explanation, but found that the Petitioner had not 
submitted any corroborating evidence to establish the Beneficiary's employment with 
The Director determined that the significant discrepancy in the record had not been 
resolved and concluded that the Petitioner had not established that the Beneficiary had at least one 
year of full-time employment abroad with a qualifying organization. 
On appeal, the Petitioner reiterated its previous explanation and asserts that the Beneficiary was 
employed by the foreign company for more than one year within the last three years preceding his 
application for admission. 
B. Analysis 
Upon review of the petition and the evidence of record, including the Petitioner's assertions on 
appeal, we conclude that the Petitioner has not established that the Beneficiary was employed by a 
qualifying organization abroad. 
The Petitioner's explanation that the Beneficiary was no longer employed at the foreign entity when 
he applied for his nonimmigrant visa conflicts with the foreign entity's initial letter describing the 
16 
(b)(6)
Matter of P-G- LLC 
Beneficiary's duties while working at the foreign entity. The managing director stated specifically 
that the Beneficiary's 'job responsibilities will be temporarily be [sic] handled by the heads of the 
management team" and that the Beneficiary upon completion ofhis duties for the Petitioner in the 
United States "will return to Thailand and will resume his job responsibilities, as Sales Executive in 
It is unclear why the managing director would arrange for someone to 
handle the Beneficiary's responsibilities temporarily, if the Beneficiary was no longer employed at 
the foreign entity. It is also unclear why the managing director would indicate that the Beneficiary 
would "resume his job responsibilities" at the foreign entity if he was no longer employed there. 
With the inconsistencies in the record regarding the Beneficiary's foreign employment, the Director 
properly requested corroborating evidence of the Beneficiary's employment with 
The regulation at 8 C.P.R. § 214.2(1)(3)(viii) states that the Director may request additional 
evidence in appropriate cases. The Petitioner is obligated to clarify the inconsistent and conflicting 
testimony by independent and objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Although specifically and clearly requested by the Director, the Petitioner declined to 
provide any corroborating evidence of the Beneficiary's foreign employment. The Beneficiary's 
foreign payroll records would assist in confirming the Beneficiary's employment, especially if these 
records corresponded to the Beneficiary's Thai tax. returns and/or bank statements. The Petitioner's 
inability to submit these documents, without explanation, leaves material questions as to whether the 
Beneficiary actually worked for the foreign entity as claimed. The failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 
8 C.P.R.§ 103.2(b)(14). 
As the Petitioner has not established that the Beneficiary was employed by 
it is unnecessary to review the foreign entity's descriptions ofthe Beneficiary's claimed duties. 
Accordingly, we will not further address the nature of the Beneficiary's claimed foreign position, or 
whether the c~aimed position was in a managerial or executive capacity. 
Based on the deficienci~s and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary had one continuous year of full-time employment with a qualifying foreign employer 
prior to his admission to the United States. 
I 
VI. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. The burden is on the Petitioner 
to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-G-LLC, ID# 18145 (AAO Sept. 9, 2016) 
17