dismissed L-1A Case: Import/Export & Restaurant Operations

U.S. Citizenship 
and Immigration 
Services 
In Re: 9731747 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 31, 2020 
The Petitioner, which states that it is engaged in the import and export of off-road equipment and 
operation of a restaurant, seeks to continue the Beneficiary's temporary employment as its general 
manager under the L-lA nonimmigrant classification for intracompany transferees. Immigration and 
Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition concluding the Petitioner did not 
establish, as required, that (1) it has a qualifying relationship with the Beneficiary's foreign employer 
and (2) it will employ the Beneficiary in a managerial or executive capacity under the extended 
petition. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, the Petitioner has not met this burden. 
Accordingly, we will dismiss the appeal. 
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 for one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
§ 214.2(I)(3)(v)(B). In addition, the beneficiary must seek to enter the United States temporarily to 
continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a 
managerial or executive capacity. Id. 
II. QUALIFYING RELATIONSHIP 
The first issue we will address is whether the Petitioner established that it has a qualifying relationship 
with the Beneficiary's former foreign employer. 
To establish a "qualifying relationship," the Petitioner must show that the 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 "affi I iates." See section 101(a)(15)(L) of the Act; see also 
8 C.F.R. § 214.2(1)(1)(ii) (providing definitions of the terms "parent," "branch," "subsidiary," and 
"affi I iate"). 
Here, the Petitioner claims to have an affiliate relationship with the Beneficiary's foreign employer. 
The regulation at 8 C.F.R. § 214.2(1)(1)(ii)(L) defines the term "affiliate" as: (1) one of two 
subsidiaries both of which are owned and controlled by the same parent or individual, or (2) one of 
two legal entities owned and controlled by the same group of individuals, each individual owning and 
controlling approximately the same share or proportion of each entity. 
In determining whether a petitioner has established a qualifying relationship, we also look to relevant 
case law which confirms that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Matter of Church Scientology lnt'I, 19 l&N Dec. 593 (Comm'r 1988); Matter of Siemens Med. 
Sys., Inc., 19 l&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 l&N Dec. 289 (Comm'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Matter of Church Scientology lnt'I, 19 
l&N Dec. at 595. 
The Petitioner submitted supporting evidence demonstrating that the Beneficiary owns a 95% interest 
in the Brazilian company that employed him abroad, and his spouse owns the remaining 5% of that 
company. The Petitioner stated that the Beneficiary owns 40% of the U.S. limited liability company, 
while his spouse owns the remaining 60%. The Petitioner submitted the following evidence related 
to its ownership and control: 
I Certificate of Organization which identifies the Petitioner and his spouse as the company's 
members as of August 2015 but does not identify the percentage of membership interest owned 
by each member. 
I An undated letter from I C.P.A., who states that the Petitioning company was 
established in August 2015 and states that the Beneficiary owns 40% of the company while his 
spouse owns 60%. 
I Proxy agreement (dated July 2016) between the Beneficiary and his spouse in which she 
appoints him as her proxy "with full power of substitution to exercise on [her] behalf all its 
voting and other rights at any Member meeting." The agreement has a term of 10 years and 
can be terminated at any time and for any reason by the Beneficiary's spouse. 
In a request for evidence (RFE), the Director advised the Petitioner that the letter from .... l ____ _. 
was insufficient to establish the company's ownership. The Director provided a list of evidence the 
Petitioner could provide, including its articles of organization, operating agreement, membership 
certificates, membership certificate ledger, equity purchase agreements, meeting minutes, evidence of 
capital contributions, and most recent federal income tax return with all attachments and schedules. 
The Petitioner opted to submit only its 2018 IRS Form 1065, U.S. Return of Partnership Income, in 
response to the RFE. The accompanying Schedules K-1, Partner's Share of Income, Deductions, 
Credits, Etc., indicate that the Beneficiary's spouse owns 60% of the company, while he owns the 
remaining 40%. 
2 
In denying the petition, the Director acknowledged the Petitioner's submission of its tax return, but 
noted that it was dated five months after the filing of the petition, was not signed, and was not 
accompanied by evidence that it was actually submitted to the IRS. Accordingly, the Director 
determined that the Petitioner submitted insufficient evidence of its ownership and did not establish 
its claimed qualifying relationship with the foreign entity. 
On appeal, the Petitioner asserts that the Director did not review all the evidence and asserts that it 
was sufficient to establish the required qualifying relationship. Upon review, we conclude that the 
Petitioner has not established that the U.S. and foreign entities share the requisite common ownership 
and control. 
First, we agree with the Director's determination that the CPA letter and the 2018 tax return alone 
provide insufficient evidence of the Petitioner's ownership. The Petitioner emphasizes that it also 
submitted its certificate of organization executed by the Beneficiary and his spouse as sole members. 
However, 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 members 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 control of the entity. Matter of Siemens Med. Sys., Inc., 19 l&N Dec. 362 
(Comm'r 1986). Without full disclosure of all relevant documents, USCIS is unable to determine the 
elements of ownership and control. 
Further, even if we determined that the Petitioner had provided adequate evidence supporting its 
claimed ownership, the evidence is insufficient to establish that the two entities are qualifying 
affiliates. Although both entities are owned by the same two individuals the record does not establish 
that each individual owns and controls approximately the same share or proportion of each entity. See 
8 C.F.R. § 214.2(1)(1)(ii)(L)(2). Rather, the Petitioner claims that the Beneficiary owns and control 
both entities pursuant to 8 C.F.R. § 214.2(1)(1)(ii)(L)(1). 
Control may be "de jure" by reason of majority ownership of outstanding stocks of the other entity or 
it may be "de facto" by reason of control of voting shares through partial ownership and possession of 
proxy votes. Matter of Hughes, 18 l&N Dec. 289 (Comm'r 1982). Here, the Petitioner states that the 
Beneficiary controls the foreign entity based on his ownership of 95% of the foreign entity. It also 
claims that he controls the U.S. company based on his minority (40%) ownership interest and his 
possession of proxy votes under the proxy agreement executed between the Beneficiary and his 
spouse. 
3 
Although the Petitioner seeks to rely on Matter of Hughes to establish the Beneficiary's de facto 
control of the U.S. entity through a proxy agreement, a 2017 policy memorandum clarifies Matter of 
Hughes and provides additional guidance on adjudication of L-1 qualifying relationship issues 
involving proxy votes.1 
Generally, a proxy can be revoked at any time, unless it is coupled with an interest or made expressly 
irrevocable. 2 To establish a qualifying relationship in situations where a petitioner has submitted 
documentation of control by proxy votes, the petitioner must show that the proxy votes are irrevocable 
from the time of filing the L-1 petition through the time of adjudication.3 Here, the Petitioner relies 
on a proxy agreement which contains provisions allowing the Beneficiary's spouse to terminate the 
agreement at any time and for any reason, and allowing the Beneficiary to resign as proxy at any time 
and for any reason. Since the proxy agreement is not irrevocable, the Petitioner cannot rely on it to 
establish that the Beneficiary exercises de facto control over the U.S. company. 
For the foregoing reasons, the Petitioner has not established that it has a qualifying affi I iate relationship 
with the Beneficiary's foreign employer. 
Ill. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also denied the petition based on a determination that the Petitioner did not establish that 
it would employ the Beneficiary in a managerial or executive capacity under an extended petition. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude in 
discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101(a)(44)(B) of the Act. 
1 USCIS Policy Memorandum PM-602-0155, L-1 Qualifying Relationships and Proxy Votes (Dec. 29, 2017), 
https://www.uscis.gov/legal-resources/policy-memoranda 
2 Id. at 2. 
3 The documentation needed to establish an irrevocable proxy may include relevant evidence regarding the legal framework 
under which the proxy was granted (such as the laws of the jurisdiction in which the entity is organized and the jurisdiction 
in which any agreements were executed), the organizational documents of the entity, irrevocable proxy agreements, official 
meeting minutes detailing the irrevocable proxy, an affidavit from the proxy-granting equity holder with sufficient 
specificity regarding the details of the irrevocable proxy, etc. Id. at 4. 
4 
To be eligible for L-1A nonimmigrant visa classification as a manager or executive, the Petitioner 
must show that the Beneficiary will perform the high-level responsibilities set forth in the statutory 
definitions at sections 101(a)(44)(A) or (B) of the Act. If the record does not establish that the offered 
position meets al I four of elements of one of these definitions, we cannot conclude that it is a qualifying 
managerial or executive position. If the Petitioner establishes that the offered position meets all 
elements set forth in either statutory definition, 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). 
In determining whether a given 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 a 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 a beneficiary's actual duties and role in a business. 
A. Job Duties 
The Petitioner stated on its petition that it operates a restaurant and is an importer and exporter of off­
road equipment. It also submitted a "Company Organizational Chart" in which it identified a medical 
devices business called I I' as a third business venture. The Petitioner states on the chart that it 
directly controls the import-export business and medical devices business, while the restaurant, D I I· is operated by its wholly owned subsidiary! I 
The Petitioner stated that the Beneficiary would serve as the "President, CEO and Manager" of the 
business as a whole and provided the following breakdown of his duties: 
1. Business development (25%) 
2. Marketing (25%) 
3. Food and packaging supply chain (20%) 
4. Operations (15%) 
5. Procurement of equipment and uniforms (5%) 
6. Legal compliance (5%) 
7. Merchant and credit card processing (5%) 
The Petitioner indicated that the Beneficiary's "business development" duties include reviewing and 
analyzing data on customer demographics and preferences, data on competitors, reviewing and 
analyzing reports, researching new business opportunities, and preparing and implementing new 
business initiatives. With respect to his "marketing" responsibilities, the Petitioner stated that the 
Beneficiary coordinates an annual marketing plan and "online advertising app development" with two 
account managers at external companies ...,__ ____ -----,, and must evaluate financial aspects of 
product development. 
The Petitioner explained that the Beneficiary's "Food and packaging supply chain" responsibilities 
including research and planning to ensure that the company has food and packaging supplies and 
calculating food supply orders and delivery schedules with restaurant suppliers. The Petitioner 
5 
indicated that he would be "managing activities related to strategic and tactical purchasing, material 
requirements planning, controlling inventory warehousing" and implementing new supply chain 
processes. 
With respect to the Beneficiary's "Operations" tasks, which require 15% of his time, the Petitioner 
indicated that he oversees and coordinates with a property manager, a security company and a payroll 
and accounting services provider. The Petitioner explained that he reviews business accounting 
statements and records, directs and coordinates payroll activities, reviews security issues, and directs 
"administrative activities directly related to making products or providing services." 
Finally, the Petitioner indicates that the remaining 15% of the Beneficiary's time is spent: locating 
material, equipment and supply vendors for the restaurant and preparing and processing purchase 
orders; reviewing compliance reports prepared by outside legal counsel; and keeping up to date on 
merchant payment processing technology and services and analyzing records of customers' charges 
and payments. 
In the RFE, the Director observed that tasks such as analyzing data, researching and coordinating 
deliveries of food supplies, and negotiating with supplier and contractors suggest that the Beneficiary 
is involved in the day-to-day operations of the company and not primarily performing managerial or 
executive-level duties. In addition, as discussed further below, the Director emphasized that the 
Petitioner did not adequately document the company's organizational structure, its staffing levels, and 
its ability to support the Beneficiary in a managerial or executive position. 
In response, the Petitioner asserted that the Beneficiary "possesses ultimate authority and completely 
unfettered discretion to take any actions and decisions involving any and all of the company's key 
business functions." It further emphasized that "the company's managers are tasked with all the day­
to-day management functions," noting that the Beneficiary primarily "establishes company goals and 
strategies." The Petitioner provided job titles and brief job descriptions for three claimed subordinate 
managers but did not identify the individuals serving in those positions or provide evidence that they 
were on the company's payroll at the time of filing. 
In denying the petition, the Director determined that the Petitioner's description of the Beneficiary's 
duties was insufficient to establish that his duties are primarily managerial or executive in nature, 
particularly in light of the lack of evidence relating to the company's structure and staffing levels. 
On appeal, the Petitioner states that the Beneficiary "spends his time exclusively on high-level 
executive and managerial duties focused on negotiating contracts with other high-level executives at 
suppliers, developing and implementing company policies and standards for employee performance, 
developing and implementing business strategy, ensuring that internal controls are effective, analyzing 
market competition, and developing and implementing measures to increase profitability and 
minimize costs." The Petitioner submits copies of internal policies and training materials relating to 
its restaurant operations and states that they were developed by the Beneficiary. The Petitioner also 
reiterates that it employs managers who relieve the Beneficiary from involvement in the day-to-day 
operations of the restaurant. 
6 
As a preliminary matter, we note that all the duties outlined in the Petitioner's description of the 
Beneficiary's position relate to the operation of the restaurant operated by the Petitioner's subsidiary. 
However, the Petitioner claimed that the Beneficiary's role encompasses both the petitioning company 
and its subsidiary's restaurant operations. Although the Petitioner has submitted little evidence related 
to its import-export and medical devices businesses, it provided a copy of its 2018 tax return showing 
more than $600,000 in sales. The tax return also reflects that the Petitioner paid no salaries or wages 
in 2018, and it has not otherwise identified any employees, apart from the Beneficiary, who work 
directly for the petitioning company. As such, to the extent that the Petitioner is operating an import­
export business and/or a medical devices business, it is reasonable to conclude that the Beneficiary 
himself is performing the non-managerial and non-executive tasks required for their operation. For 
these reasons, we cannot determine that the job description provided, which indicates that the 
Beneficiary spends 100% of his time on duties related to the subsidiary's pizza restaurant, fully and 
credibly describes all his responsibilities as the Petitioner's general manager. 
Turning to the position description, we agree with the Director's determination that the breakdown of 
the Beneficiary's duties does not establish that he performs primarily managerial or executive 
functions for the restaurant. The Petitioner indicates that the Beneficiary spends half of his time on 
the restaurant's marketing and business development activities in collaboration with external 
contractors. However, the record does not document the company's relationship with these contractors 
or indicate the nature and scope of their services. Further, while the Beneficiary may be responsible 
for the company's business development and marketing strategies, the record does not provide 
adequate support for its claim that its subsidiary's pizza restaurant requires a high-level employee who 
spends 50% of his time on these activities, which include tasks such as overseeing the development of 
an "online advertising phone app" by an external marketing company. 
As noted by the Director, many of the remaining tasks outlined in the Beneficiary's job description 
are operational and administrative tasks necessary for the operation of a restaurant. The Petitioner 
indicates that it has established suppliers for its food and beverage needs and does not explain the 
Beneficiary's need to spend 8 hours per week on food and packaging supply chain issues on an 
ongoing basis or explained how these are managerial duties. As noted, some of the Beneficiary's 
responsibilities include locating equipment and supply vendors, preparing and processing requisitions 
and purchase orders, and "reviewing and analyzing records of customers' charges and payments," 
duties that do not clearly fall within the definitions of managerial or executive capacity. Overall, the 
job description does not support the Petitioner's claim that he spends his time "exclusively on high­
level executive and managerial duties" or that his primary duties include "developing and 
implementing company policies." 
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" executive or managerial in nature. Sections 101(A)(44)(A) and (B) 
of the Act. Here, the Petitioner has described the Beneficiary duties as they relate to only one of the 
three different businesses it claims to operate. Further, while the Petitioner emphasizes the 
Beneficiary's level of authority as its senior employee, the position descriptions alone, for the reasons 
discussed, are insufficient to establish that his actual duties would be primarily managerial or executive 
in nature. 
7 
B. Staffing and Organizational Structure 
The Petitioner indicated that it had 14 employees when it filed the petition in March 2019 but did not 
submit an organizational chart or other evidence of the company's structure and staffing levels. It 
provided copies of 28 IRS Forms W-2, Wage and Tax Statement, issued by its subsidiary in 2018. Of 
these employees, 18 earned less than $1,000 and seven earned between $1,000 and $2,000. The 
remaining three employees earned $7,512, $11,584, and $21,027, respectively. The Petitioner did not 
provide any evidence of wages paid to its own employees, if any, nor did it provide evidence of 
payments made to contractors, despite the Petitioner's claim that the Beneficiary interacts with 
contractors in performing many of his duties. 
In the RFE, the Director observed that, based on the submitted W-2 forms, almost all the documented 
workers earned less than $2,000 in 2018. He noted that, in the absence of full-time employees, it 
appears that the Beneficiary would be significantly involved in the non-managerial, day-to-day 
operations of the company, and would not spend his time primarily on managerial or executive tasks. 
The Director also emphasized that the record lacked information and supporting evidence regarding 
the positions, duties and qualifications of the claimed employees. The Director requested an 
organizational chart listing all employees by name, job title, salary, and education level, and requested 
a summary of duties for each employee. The Director also requested performance appraisals or 
reviews demonstrating the Beneficiary's hiring/firing and other personnel authority over subordinates. 
Although the Petitioner responded to the RFE, its response did not address all the issues raised by the 
Director. For example, it did not provide any clarification regarding the low wages paid to most of its 
subsidiary's employees in 2018. 
The Petitioner provided an organizational chart which shows that the Beneficiary, as 
"President/CEO/General Manager," supervises the subsidiary.I I which has two tiers 
of staff. The upper tier includes a "Company Manager," a "Kitchen Manager," and a "Pizzaiolo." The 
lower tier of staff includes waiters, general staff, kitchen staff, and cooks. The chart does not include 
the requested information such as names, wages/salaries, and educational levels of the employees, or 
even the number of employees in each position. 
The Petitioner stated tharl ~s company manager, kitchen manager and pizzaiolo handle 
"all of the company's day-to-day management operations" and provided brief job descriptions for 
these positions. Specifically, it indicated that the company manager hires and fires employees, 
contacts suppliers to purchase materials, oversees restaurant advertising through contractors, provides 
general staff training and employee oversight, coordinates with payroll, ensures waiters tips are paid, 
closes the restaurant, and periodically reports to the Petitioner. The kitchen manager ensures that the 
kitchen is stocked with food and supplies, trains kitchen staff, oversees and ensures food quality and 
ensures compliance with local regulations. Finally, the petitioner stated that the pizzaiolo is the head 
pizza maker and is responsible for training and overseeing all other cooks. 
Finally, the Petitioner submitted a copy of its 2018 tax return indicating that it had gross receipts or 
sales of $681,090 but Raid no salaries or wages. The tax return does not appear to include the financial 
data of the subsidiary.I lwhich as noted, paid 28 employees in 2018. 
8 
In the denial, the Director again emphasized the lack of evidence to document which positions are 
staffed, noting that the Petitioner's tax return indicates that it paid no salaries, while the subsidiary's 
2018 W-2s show low wages paid to most of the staff. The Director determined that the Petitioner had 
not demonstrated how the Beneficiary would be relieved from having to perform the tasks necessary 
to produce a product or provide a service. Accordingly, the Director concluded that the Petitioner did 
not meet its burden to establish that the Beneficiary's actual duties would be primarily manager or 
primarily executive in nature. 
On appeal, the Petitioner emphasizes that the previously submitted evidence establishes that the 
Beneficiary is "the General Manager of a restaurant employing several workers, including managers 
and subordinate staff," noting that the Beneficiary's subordinates serve in "first-line supervisory 
positions responsible for the operational and administrative day-to-day functions of the restaurant, 
allowing [him] to devote his time to high-level executive and managerial duties." 
The Petitioner states the facts of this case are similar to those discussed in a non-precedent decision in 
which we determined that a beneficiary who worked as a restaurant general manager and indirectly 
supervised many part-time employees was eligible for classification as an L-lA manager. The 
referenced AAO decision was not published as a precedent and therefore does not bind USCIS officers 
in future adjudications. See 8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and 
policy to the specific facts of the individual case and may be distinguishable based on the evidence in 
the record of proceedings, the issues considered, and applicable law and policy. 
Further, we note that the facts of the non-precedent decision can be distinguished from the facts 
presented here. In that decision, we determined that the petitioner had documented its employment of 
a number of full-time subordinate managers and supervisors (operations managers, kitchen 
supervisors, and an administration and finance manager) who performed bona fide supervisory 
functions as well as sufficient lower-level staff to carry out the day-to-day restaurant operations. Here, 
as discussed further below, the Petitioner has not adequately documented the staffing of its 
subsidiary's restaurant, nor does the record document the Petitioner's own staffing. 
Turning to the restaurant operations, the Petitioner stated on the Form 1-129 that it had 14 employees 
as of the date of filing but did not corroborate its staffing levels or submit an organizational chart or 
personnel list describing the types of positions. Although the Petitioner submitted evidence that its 
subsidiary paid a total of 28 employees in 2018, the wages paid to most employees were very low, and 
do not support a finding that the restaurant typically employed 14 employees as claimed. We 
recognize that wages are not high in the industry, and that there is frequent turnover, but the evidence 
reflects that 25 of 28 employees likely worked on a part-time basis over a short period of time in 2018. 
More importantly, the Petitioner did not identify the three claimed subordinate managers or 
supervisors by name or provide evidence of wages paid to them in 2019. The evidence does not 
establish that these positions were filled at the time of filing, and if so, that the individuals who held 
the positions worked sufficient hours to relieve the Beneficiary from having to assist with their first­
line supervisory duties. 
In addition, as discussed above, although most of the evidence in the record relates to the restaurant 
operated by the Petitioner's subsidiary, the Petitioner's own tax return indicates that it reported over 
$600,000 in gross receipts, presumably related to its off-road equipment import-export business and/or 
9 
the claimed medical devices business j I' The Petitioner did not report the payment of any 
salaries or wages nor does it indicate that the Beneficiary himself performs any duties related to these 
businesses. Nevertheless, one or both businesses appears to be active and the Petitioner has not 
demonstrated that anyone other than the Beneficiary would be available to perform the operational 
and administrative tasks necessary for their operation. 
As required by section 101(a)(44)(C) of the Act, 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 light of the overall purpose and stage of development of 
the organization. However, it is appropriate to consider the size of the petitioning company in 
conjunction with other relevant factors, such as the absence of employees who would perform the non­
managerial or non-executive operations of the company. Family Inc. v. USCIS, 469 F.3d 1313 (9th 
Cir. 2006). 
Here, the Petitioner did not document any payments to staff or contractors or demonstrate how it 
requires the Beneficiary to perform primarily managerial or executive duties given that the evidence 
suggests he is likely the sole employee of a business that reported over $600,000 in gross receipts and 
would reasonably need to perform many operational and administrative tasks associated with the 
import-export and/or medical devices business. Although the Petitioner claims that he allocates all of 
his time to its subsidiary's restaurant business, the subsidiary's organizational structure and staffing 
levels are not adequately documented in the record, and the evidence submitted does not support the 
Petitioner's assertion that the subsidiary's restaurant has full-time managers and supervisors who 
relieve the Beneficiary from performing operational, administrative and first-line supervisory duties. 
In light of the deficient evidence of the Petitioner's staffing, its subsidiary's staffing and the 
Beneficiary's job duties, we are unable to gauge the extent to which the Petitioner and its subsidiary 
would be able to relieve the Beneficiary significant involvement in non-managerial and non-executive 
duties at the time the petition was filed. Therefore, the Petitioner has not established that the 
Beneficiary would be employed in a managerial or executive capacity. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 
ORDER: The appeal is dismissed. 
10