dismissed L-1A Case: Jewelry Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-G- INC 
. Non-Precedent Decision of the 
1 Administrative Appeals Office 
DATE: OCT. 27,2016 
APPEAL OF VERMONT SERVICE .CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company that owns and operates one jewelry retail store, two jewelry retail kiosks, 
and a nut retail store, seeks to extend the Beneficiary's temporary employment as its general manager 
under the L-1A 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, initially denied the petition on two alternate grounds, 
concluding that the Petitioner did not establish that (1) the Beneficiary will be employed in a 
managerial or executive capacity under the extended petition, and (2) the·Beneficiary was employed 
in a managerial or executive capacity at the qualifying foreign entity. The Petitioner subsequently 
filed a combined motion to reopen and motion to reconsider the denied petition. The Director 
granted the combined motion to reopen and reconsider the decision and affirmed her decision to 
deny the petition on the same grounds. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Beneficiary has been employed at the foreign entity and will be employed in the 
United States in a managerial capacity. 
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 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 to the same 
employer or a subsidiary or affiliate thereof in a man~gerial, executive, or specialized knowledge 
capacity. !d. 
Matter of R-G-, Inc. 
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 organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(1)(1 )(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. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The Director denied the petition based on a finding that the Petitioner did not establish that: ( 1) the 
Beneficiary will be employed in a managerial or executive capacity in the United States; and (2) the 
Beneficiary has been employed abroad in a managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
and section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101{a)(44)(B), defines the term "executive 
capacity." 
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 (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
A. U.S. Employment in a Managerial or Executive Capacity 
The Petitioner has described the Beneficiary's proposed position in the United States as both 
executive and managerial. Therefore, our analysis will explore both. 
2 
(b)(6)
Matter of R-G-, Inc. 
1. Evidence of Record 
The Petitioner filed the Form 1-129 on February 10,2014. On the Form 1-129, the Petitioner 
indicated that it has 17 current employees in the United States and a gross annual income of 
$1,019,050. The Petitioner stated that it is primarily engaged in the retail sale of jewelry and in 
"business investment," and that it operates one jewelry store and two mall kiosks in Louisiana -
and -and opened a store in Texas. 
In its letter of support, the Petitioner stated that the Beneficiary will be employed in an executive 
capacity in the United States and described his position and duties as follows: 
• Manage the overall sales & promotional activities· of Louisiana business 
operations, consisting of retail jewelry operations and strategic planning with 
the company's President. 
• Oversee the documentation and contract negotiations for the efficient, cost­
effective and lawful execution of all international supply chain orders. 
• Communicate with key domestic suppliers, merchants, and customers as 
necessary to ensure efficient, positive and lawful relations, support and 
activities. 
• Prepare and submit relevant administration in a timely and accurate manner 
such as; shipping schedules, letters of credit, routing, transport and safety 
documentation required for quality control of high-dollar inventory items. 
• Rely on proven experience to plan and manage local business activities while 
coordinating with company President to ensure wider company objectives are 
met. 
• Promote and set marketing policies for Louisiana business as necessary, update 
product lines to meet consumer demand data. ~ 
• Negotiate contracts for sales/purchases and manage renew, review contacts [sic] 
as required to enable effective trading and purchase of customized diamond 
jewelry operations. 
The Petitioner submitted its Shopping Center Lease agreement stating that the Petitioner will be 
doing business as The lease states that the leased premises consist of 926 square 
feet in the building of a shopping center known as at unit of 
LA. The lease specifically states that the use of the premises is limited to 
the "display and retail sale of gold and silver jewelry, fine jewelry, semi-precious and precious 
stones, diamonds, fine china, and watches, and incidental thereto, the repair of jewelry and watches; 
and for no other purpose." The lease further states that the "store hours shall mean Monday through 
Saturday continuously between the hours of 10:00 A.M. and 9:00P.M. and Sundays continuously 
between the hours of 12:00 P.M. and 6:00P.M." 
The Petitioner submitted its organizational chart and pointed out that the number of Sales Associates 
increases depending on seasonal market changes, illustrated as follows: 
3 
(b)(6)
Matter of R-G-, Inc. , 
President 
I 
I 
I 
I Vice President General Manager 
[Beneficiary] 
I 
I 
~ 
Business Analyst Sales Manager Tech. Supervisor 
.... Business Associate .... Sales Associates 
~ 
Tech. Associate 
1-8 
Tech. Associate 
-
The Petitioner submitted its payroll employee profiles, dated January 3, 2014, for 20 employees, 
including the Beneficiary, all of which were hired; prior to filing the instant petition, but three of 
which had been terminated prior to filing the instant petition. The 17 employee profiles indicate that 
the Petitioner paid three employees on a salary and the rest on an hourly rate, ranging from $8 per 
hour to $12 per hour. It is unclear from the payroll records the amount of time each employee 
worked, and whether the pay period was monthly, bi-weekly, or weekly. 
In response to the Director's first RFE, the Petitioner submitted a letter stating that it operates five 
retail sales businesses in the its flagship retail store, and now four 
(instead of two) other kiosk locations throughout the mall. The Petitioner stated that it currently has 
nine employees, and also uses "contract sales employees," that are rotated among its five locations at 
the depending on need. 
The Petitioner 
submitted a letter from its President, stating that the 
Beneficiary will be the go-to person for Louisiana business operations, will oversee subordinate 
managers, and will. be. in charge of inventory management for its international supply chain 
contracts. The Petitioner then provided a list of the Beneficiary's job duties similar to the one 
provided in its initial letter of support, with additional duties, including analyzing sales reports and 
financial statements, recruiting, hiring, and training managers, maintaining professional and 
technical knowledge, and attending trade shows. 
The Petitioner submitted its IRS Forms 941, Employer's Quarterly Federal Tax Return, for the 
fourth quarter of 2013 and the first quarter of 2014. The Form 941 for the fourth quarter of 2013 
indicated· that the Petitioner had seven employees and paid $58,298 in wages, tips, and other 
compensation during that period. The Form 941 for the first quarter of 2014 indicated that the 
Petitioner had six employees and paid $17,475 in wages, tips, and other compensation. 
4 
(b)(6)
Matter of R-G-, Inc. 
The Petitioner submitted a letter from the General Manager of the dated 
May 13, 2014, stating that the Petitioner's listed store and kiosks are all currently in good standing. 
'In response to the Director's second RFE, the Petitioner submitted a letter, again from its President, 
dated August 20, 2014. The letter described the Beneficiary's position and duties in the United 
States, focusing on activities the he has participated in after filing, and stating that he is "in direct 
contact" with the Petitioner's CPA, bankers, and other professionals. 
The Petitioner then submitted a copy of the same letter from its President, dated May 21, 2014, 
previously submitted in response to the Director's first RFE. 
The Petitioner also submitted a new organizational chart, including the education levels of the listed 
employees, illustrated as follows: 
I I 
President 
I I 
ll 
Vice President General Manager 
[Beneficiary] 
Business Analyst Sales Manager Tech. Supervisor 
~ 
!Mechanical Engineer Oracle Cert. +B.A. Bachelor of Commerce 
I 
Business Associate Assistant Sales Manager Tech. Associate 
-..... 
Bachelor of Commerce Shift Leader 
Bachelor of Science 
1- rNo Titlel B.A. 
-· Shift Leader Assoc. in Bus. Tech. + 
1- Bachelor in Bus. M£mt. 
Master in Camp. ~ci. 
H Sales Associate I 
H Sales Associate I 
H Sales Associate J 
Yseasonal Employeesl 
The Director denied the petition on September 5, 2014, concluding, in part, that the Petitioner did 
not establish that the Beneficiary will be employed in a managerial or executive capacity under the 
extended petition. . · 
5 
(b)(6)
Matter of R-G-, Inc. 
On a combined motion, the Petitioner submitted a letter describing the Beneficiary's position in the 
United States and stated that he is an "upper-level managerial" employee who has full access to the 
Petitioner's finances, is solely responsible for business expansion, and oversees 80% of the 
·Petitioner's total employees, across multiple locations simultaneously. The Petitioner also stated 
that it has sufficient office space for its staff as its retail location, consists of a 
back office that is shared by four employees. · 
On motion, the Petitioner submitted a letter stating that the Beneficiary's job is "upper:-level 
managerial" and that he has access to private financial accounts and documentation for review; 
discretion to make financial decisions in best interest of [the Petitioner]; negot~ates new contracts for 
inventory purchases and vendor accounts; selects and approves which merchandises [the Petitioner] 
will acquire; represents [the Petitioner] when meeting with key suppliers and merchants; and 
analyzes financial documents and strategizes financial goals to ensure company profitability. 
The Petitioner submitted a list of employees, indicating that it employed a President and Vice 
President at ' wholesale"; a General Manager, Business Analyst, and Tech. 
Supervisor at back office"; a "Tech Tech. Assoc" at both' back 
office & front retail area"; a Sales Manager, Asst. Sales Manager, and five Sales Assoc at 
front retail area"; a Business Assoc and Sales Assoc at ' front retail 
area"; two Sales Assoc at ' retail area"; and one Shift Leader at retail 
area." 
The Petitioner submitted an expert opinion letter from Ph.D. 
described the Beneficiary's position and responsibilities in the United States, and evaluated the 
jewelry business in general. She stated that the nature of the goods that the Petitioner sells warrant 
pricing, placement, and promotional considerations that should not be delegated to floor managers or 
managers who do not take part in developing or executing 'strategic, marketing components. 
Therefore, it is her opinion that the Beneficiary's position conforms to what is considered 
upper-level management. 
The Petitioner submitted photos of its primary physical premises, retail store, 
located at in LA. The photos show a jewelry retail store with a single door 
leading to a back office. The photos of the back office show two large storage vaults, stacked boxes, 
two desks, desk chairs, and a filing cabinet. The photos show that there appear to be two laptop 
computers, one at each desk, and one monitor and keyboard on the filing cabinet. 1 
The Director denied the motion to reopen and motion to reconsider on December 15, 2015, affirming 
her original decision. 
1 We note that not all of the pbotos are staged the same. Some of the photos, where only one desk is visible, show two 
laptops, one on a desk and the other on the filing cabinet, while others show one laptop on each desk and a monitor and 
keyboard on the filing cabinet. 
6 
(b)(6)
Matter of R-G-, Inc. 
On appeal, the Petitioner states that the Beneficiary will be employed in a managerial capacity under 
the extended petition. 
The Petitioner submits a new list of the Beneficiary's job duties in the United States, including the 
percentages of time he will devote to each, as follows: 
30% Manage business operations of retail jewelry business segment in Louisiana; 
Prepare annual budget. Responsible for P&L. Strategic planning with 
company President: Propose, develop and execute business development 
ideas ... Manage overall sales & marketing activities. Review reports from 
business analyst, analyze sales and inventory reports, P & 
L and 
recommendations from Sales Manager to set sales goals, develop marketing 
plans, change product lines, and plan promotions to move inventory and 
increase sales. Has final approval on prices and quantity of merchandise 
offered in sales and promotions[.] Supervise the Sales Manager, Business 
Analyst and Technical Supervisor[.] 
20% Negotiate price and terms with US and overseas vendors Gewelry vendors or 
manufacturers) including store brand merchandise and exclusives on 
particular designs; Prepare and negotiate shipping schedules, letters of 
credit, routing, transport and safety documentation required for quality 
control ofhigh-dollar inventory items 
15% Attend major jewelry trade shows in develop 
and maintain business relationship with key domestic and international 
suppliers 
15% Negotiate and sign leases and lease renewals (discusses final rent with 
President); liaison with mall on all lease, occupancy, and common area 
related matters[.] Propose, develop, and supervise design, build-out, 
construction, remodeling or upgrading of leased retail space, liaison with 
mall and contractors 
\ 
1 0% Process or approve deposits and withdrawals from company bank accounts, 
payments to vendors and payment of invoices for operational expenses; 
Responsible for store safes 
1 0% Hire and fire employees, train new managers, approve salary and wage 
mcreases 
The list also includes a list of job duties, and percentages of time devoted to each, for the Business 
Analyst, Business Associate, Sales Manager, Assistant Sales Manager, Technical Supervisor, 
Technical Associates, Shift Leaders, and Sales Associates. The list of job duties for the Business 
Analyst is completely different from the one previously submitted on motion, and specifically states 
that he is "based in office w/ frequent travel to Louisiana." 
Matter of R-G-, Inc. 
2. 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 the Beneficiary will be employed 
in a managerial 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. 
In the initial filing and in response to the RFEs, the Petitioner characterized the Beneficiary's role as 
general manager and initially provided a broad list of duties to be performed by the Beneficiary, as 
listed above. The Petitioner did not assign time allocations to specifi~ job duties and instead 
grouped the Beneficiary's job duties into seven broadly stated job responsibilities. The fact that the 
Petitioner did not assign time allocations to the broadly stated job responsibilities precludes us from 
being able to determine how much time the Beneficiary would actually allocate to the performance 
of tasks that are in a managerial or executive capacity. The description of the Beneficiary's job 
duties does not establish what proportion of the duties are managerial or executive in nature, and 
what proportion are actually non-managerial and non-executive. See Republic of Transkei v. INS, 
923 F.2d 175, 177 (D.C. Cir. 1991). Further, the petitioner has not provided sufficient detail or 
explanation of the Beneficiary's activities in the course of her/his daily routine. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
In its combined motion, the Petitioner further expanded on the Beneficiary's proposed duties and 
stated that the Beneficiary is an "upper-level managerial" employee, rather than the store manager at 
any of its retail stores. It appears here that the Petitioner is asserting that these newly listed duties 
should be considered managerial; however, we disagree. Rather than providing additional 
clarification of the Beneficiary's duties, the Petitioner provided a new list of fewer duties and did not 
indicate how these duties actually qualify as managerial or executive, or specifically relate them to 
its existing retail business. The Petitioner's new description on motion does not provide sufficient 
information to conclude that these are in fact qualifying duties. Further, the Petitioner, again, did not 
quantify the amount of time the Beneficiary will devote to these newly listed duties or address 
whether he will also continue to perform the previously listed duties that were no longer included in 
the Petitioner's submission on motion. 
8 
(b)(6)
Matter of R-G-, Inc. 
Furthermore, on motion, the Petitioner provided a list of job duties assumed by the Beneficiary's 
subordinate, the business analyst, upon the denial of the Beneficiary's L-1A extension. This list of 
job duties is almost identical to the job duties listed for the Beneficiary's proposed position 
throughout the record. This is significant because the business analyst position is neither executive 
nor managerial, but the Petitioner assigned these claimed managerial duties to that position in the 
Beneficiary's absence. This fact raises concerns as to whether the Beneficiary's listed duties are 
actually managerial or executive duties. If the business analyst can perform the listed duties, then it 
begs the question of whether the Beneficiary's proposed position is actually managerial or executive. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter 
ofHo, 19 I&N Dec. 582,591 (BIA 1988). 
On motion, the Petitioner submitted an expert opinion letter, in which states that she 
believes the Beneficiary's position in the United States to be "upper-level management" in nature. It 
appears that analyzed the same list of job duties and organizational chart the Petitioner 
presented with the instant petition and she does not state whether she reviewed any other 
documentation. It is unclear whether analysis considered that the Beneficiary's 
subordinates' duties and whether they would relieve the Beneficiary from1 performing operational 
tasks, such as sales, logistics, and marketing. 
We may, in our discretion, use as advisory opinions statements submitted as expert testimony. See 
Matter of Caron Int'l., 19 I&N Dec. 791, 795 (Comm'r. 1988). However, we are ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility. Id. Where an opinion is not in accord with other information or is in any way 
questionable, we are not required to accept or may give less weight to that evidence. Id. Because 
review was limited to a review of the Beneficiary's job title and broadly described 
job duties, it has less probative value, considering that our review is based on the totality of the 
evidence in the record. Again, an individual will not be deemed a manager or executive under the 
statute simply because they have a managerial or executive title or because they "direct" the 
enterprise as the owner or sole executive or managerial employee. 
On appeal, the Petitioner provided a list of job duties for the Beneficiary's proposed position that 
appears to be an updated version of the first list of duties provided with the petition. Here, the 
Petitioner has allocated the percentages of time the Beneficiary will devote to each cluster of duties. 
However, while some of these duties may appear to be executive or managerial in nature, the 
Petitioner has not explained how the Beneficiary's duties qualify as managerial or executive in 
nature. For example, the Petitioner stated that the Beneficiary will devote 30% of his time to 
managing the business operations of its retail jewelry business, analy_zing sales and inventory 
reports, managing overall sales and marketing activities, and performing strategic planning with the 
president, all of which are vague statements that do not provide any insight as to what he will 
actually do on a day-to-day basis. The Petitioner did not explain or clarify how the Beneficiary will 
9 
Matter of R-G-, Inc. 
\ 
carry out these duties or present tasks that he will be responsible for in carrying out these duties to 
demonstrate that these specific duties, which will take up 12 hours of his time every week, will be 
managerial or executive. Conclusory assertions regarding the beneficiary's employment capacity are 
not sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
The Petitioner also stated that within the same 30% of time, the Beneficiary will develop marketing 
plans, change product lines, plan promotions, and approve prices and the merchandise offered on 
sale, which are duties that do not appear to be managerial or executive in nature; rather they appear 
to be routine non-qualifying duties related to the nature of the Petitioner's business. Further, the 
Petitioner stated that the Beneficiary will devote 20% of time to negotiating prices and terms with 
vendors and preparing and negotiating shipping schedules, letters of credit, routing, transport, and 
safe.documentation, none of which are managerial or executive duties. The Petitioner stated that the 
Beneficiary will devote 15% of his time to attending jewelry trade shows, and another 15% of his 
time to negotiating and signing leases, lease renewals, and layout of the lease premises, again, none 
of which are managerial or executive in nature. Additional duties, including processing and 
approving deposits and withdrawals from company bank accounts, pay vendors and invoices, and 
secure the store safes are also not managerial or executive duties. The Petitioner did not provide any 
clarification as to how these operational and administrative duties qualify as managerial or 
executive. Here, the Petitioner has not articulated how the Beneficiary's proposed position could be 
considered primarily managerial or executive. 
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 to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
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(1)(1 )(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). 
10 
(b)(6)
Matter of R-G-, Inc. 
In the instant matter, the Petitioner initially claimed that it had 17 employees and does business in 
Louisiana and Texas, operating one jewelry retail store and two jewelry retail kiosks in a mall in 
Louisiana and a store in Texas. In response to the first RFE, the Petitioner then stated 
that it operates one jewelry retail store, three jewelry retail kiosks, and one cart in the 
in Louisiana with nine employees and other contractors as needed. The Petitioner's 
organizational chart indicates that the Beneficiary supervises a sales manager, who in turn supervises 
sales associates, and a technical s:upervisor, who supervises two technical associates. The 
Petitioner's payroll records for January 3, 2014 indicate that it had 17 employees at that time. 
However, the Petitioner's Forms 941 for the fourth quarter of2013 and first quarter of2014 indicate 
( ' 
that it first had seven employees and later six employees, respectively. The Petitioner did not 
provide evidence of employing contracted employees who otherwise would not appear in its Form 
941. Further, the documented list of employees reflected in Form 941 conflicts with the number of 
employees claimed by the ,Petitioner or listed on its organizational chart. The Petitioner has not 
resolved these inconsistencies with independent, objective evidence pointing to where the truth lies. 
See, Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Further, according to the Form 941 for the first quarter of 2014, each of the six employees, divided 
evenly, earned approximately $2,912.50 each at the end of the three month period. If we divide the 
individual $2,912.50 by the Petitioner's lowest hourly rate of $8.00 (per the payroll employee 
profiles and not accounting for higher paid employee rates), each employee averaged approximately 
30.5 hours per week in the 12 week period. The Petitioner claims it had a total of 4 retail businesses 
at the mall during that period; this means that at 11 hours per day, 6 days per week, plus 6 hours on 
Sunday, the Petitioner's businesses required at least one person devoting 72 hours oflabor per week 
to each location. Assuming that all of the 6 listed employees were sales associates or occupied 
related positions, it does not appear that the Petitioner had sufficient employees to perform the 
routine day-to-day duties associated with operating its businesses, let alone, relieving the Beneficiary 
from performing non-qualifying operational duties. Given the Petitioner's lack of sufficient staff to 
operate its businesses, it is not apparent that the Beneficiary will act in a managerial or executive 
capacity, or even perform the listed duties for his proposed position, rather than perform non­
qualifying operational duties himself. It also does not appear that his subordinate employees, the 
business analyst, tech supervisor, and store manager, can perform their listed duties, given the lack 
of sufficient staff to actually perform the sales functions associated with multiple retail business. 
Therefore, the Petitioner has not established that the Beneficiary will have subordinate employees to 
relieve him from performing non-qualifying operational duties, specifically sales, logistics, and 
marketing tasks. 
Although it appears that the Beneficiary will have the authority to hire, fire, and supervise the 
proposed subordinate employees, the Petitioner has not demonstrated that the Beneficiary's duties 
will primarily focus on the management of the organization and that the Beneficiary's subordinate 
employees will relieve him from primarily performing non-qualifying operational and administrative 
duties at the U.S. company. 
1 1 
(b)(6)
Matter of R-G-, Inc. 
Moreover, the Petitioner did not provide an acceptable explanation of its physical premises. The 
Petitioner stated that the Beneficiary will be physically located at its flagship retail store in the 
in Louisiana, The Petitioner stated that the retail store has 
sufficient office space at a "back office" that is shared by four employees, the technical supervisor, 
business analyst, technical associate, and the Beneficiary. The Petitioner's lease agreement states 
that the premises consist of approximately 926 square feet of retail space for the primary display and 
retail sale of jewelry and no other purpose. The lease agreement does not reference any office space 
within the 926 square feet of leased premises. The photos of the "back office" space show two desks 
and chairs, some inventory vaults, a filing cabinet, and what appear to be two computers. However, 
the Petitioner did not pro~ide any explanation for the photos or clarify the actual physical space for 
each of the four employees that are supposed to share that space. It is unclear how four individuals 
who perform significantly different work are supposed to share two desks, two chairs, and two 
computers. Here, the Petitioner did not provide sufficient information to clearly indicate how and 
where the Beneficiary will perform the claimed executive and managerial duties. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter 
a/Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The Petitioner has not established, in 
the alternative, that the Beneficiary will be employed primarily 
as a "function manager." The term "function manager" applies generally when a beneficiary does 
not supervise or control the work of a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. 
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 did not indicate that the Beneficiary qualifies as a function manager. The 
Petitioner did not articulate how the Beneficiary's proposed duties at the U.S. company qualify him 
as a function manager and did not provide a breakdown indicating the amount of time the 
Beneficiary will devote to duties that would clearly demonstrate that he will manage an essential 
function of the U.S. company. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act, 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 organi~ation rather than 
12 
(b)(6)
Matter of R-G-, Inc. 
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. 
In its initial letter of support, the Petitioner stated that the Beneficiary will be employed in an 
executive capacity; however, the Beneficiary's proposed position has not been shown to be primarily 
executive in nature, and the Petitioner has not demonstrated that the Beneficiary's proposed duties 
will primarily focus on the broad goals and policies of the organization rather than on its day-to-day 
operations. As noted above, the Petitioner did not submit a detailed description of the Beneficiary's 
proposed position sufficient to establish that the Beneficiary's daily routine will consist of primarily 
executive duties, rather than on providing the services or producing the products of the organization. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary 
will be employed in a managerial or executive capacity under the extended petition. 
B. Foreign Employment in a Managerial or Executive Capacity 
The Petitioner has described the Beneficiary's position at the foreign entity as both executive and 
managerial. 
1. Evidence of Record 
On the Form I-129, the Petitioner identified the Beneficiary's foreign employer as a 
clothing retail store located at a shopping mall in Pakistan. In its letter of support, the 
Petitioner stated that the Beneficiary was employed in a managerial capacity at the foreign entity and 
described his position and duties as follows: 
[The Beneficiary's] qualifications provige ample evidence of his upper-level 
managerial duties. Since serving as General Manager of [the foreign entity], he has 
performed the following primary functions: 
• Manage all business operations including sales, marketing, and inventory 
control and negotiation of major contracts. 
• Have independent authority over all major business decisions, reporting 
directly to [the Petitioner's] President regarding international performance. 
• Meet with potential international suppliers in (UAE) and Australia on 
behalf of the company. 
• Oversight of subordinate staff to manage sales, comprise company budget 
and set local goals & policies. 
• Maintain company accounting practices, includingLstaff payroll, authority to 
hire/fire and compliance with all necessary local government regulations. 
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(b)(6)
Matter of R-G-, Inc. 
In response to the Director's first RFE, the Petitioner's letter from its President, dated May 21, 2014, 
briefly stated that the Beneficiary was continuously employed by the foreign entity since 
May 28, 2003 in the managerial positi6n of General Manager. 
In response to the second RFE, the Petitioner submitted a letter, dated August 22, 2014 stating that 
the Beneficiary worked as an upper-level manager at the foreign entity and "performed the following 
upper-level managerial duties: oversee the store renovations, hiring and firing of all employee and 
managers under his supervision ... negotiate contracts for the sales and purchases of the day-to-day 
retail operations in Pakistan; responsibility for and manage the sales and promotions activities [sic]." 
The Petitioner also submitted a letter from its President, dated August 20, 2014, describing the 
Beneficiary's position as executive for the first time, highlighting the Beneficiary's oversight of a 
renovation of the retail store, as well as modifying inventory selection. 
The Petitioner also submitted an organizational chart for the foreign entity. 
The Director denied the petition concluding, in part, that the Petitioner did not establish that the 
Beneficiary 
had been employed in a managerial or executive capacity abroad. 
On the combined motion, the Petitioner submitted a letter describing the Beneficiary's position at the 
foreign entity and stated that he was an "upper-level managerial" employee who had sole 
authorization to approve inventory purchases and supply contracts, developed plans to acquire new 
customers and manage the intake of new clientele and business prospects, was responsible for 
directing the company's major functions and establishing goals and policies, negotiated pricing with 
vendors and established new vendor accounts for supplies, and negotiated exclusive rights with 
vendors pertaining to purchases and sales of garments and fabrics. The Petitioner submitted an 
organizational chart and stated that the foreign entity actually had seven employees, excluding the 
owner, and the Beneficiary oversaw six of those employees: one Store Manager, three Sales 
Associates, and two "Outside Sales Representatives." The Petitioner also stated that the store 
manager performed the first-line supervisor duties for the foreign entity's retail store, but did not 
provide a position description or list of job duties for that position. 
The expert opinion letter from Ph.D., described the Beneficiary's duties abroad 
as managerial in 
nature, concluding that based on her evaluation of the Beneficiary's responsibilities 
in relation to the foreign entity's organizational structure and the nature of the 'jewelry retail 
business, "said responsibilities are typically 
delegated to upper-level managers." 
The Director denied the motion to reopen and motion to reconsider, affirming her original decision. 
On appeal, the Petitioner states that the Beneficiary was employed in a managerial capacity at the 
foreign entity and managed the entire organization, supervised the assistant manager as well as 
outside tax and legal specialists, had authority to hire and fire employees, had considerable financial 
14 
(b)(6)
Matter of R-G-, Inc. 
responsibility, exercised wide discretion over the day-to-day operations of the company and ~ide 
latitude in discretionary decision-making on behalf of the foreign entity, and received only minimal 
direction and oversight for the company's president and owner. 
The Petitioner submits a new list of the Beneficiary's job duties at the foreign entity, including the 
percentages of time he devoted to each, as follows: 
· 30% Responsible for all business operations, including sales, marketing, 
purchasing, and inventory control; Prepare operations budget and set local 
goals and objectives; Responsible for financial management of company and 
P&L; Maintain company accounting, budget, payroll and fiscal practices; 
consult with Chartered accountant as needed 
25% Research, develop and implement business development ideas; keep up with 
market trends; Develop proposals for major capital investments for 
President's final approval; plan, execute and supervise capital improvement 
projects such as store remodeling and upgrading of merchandise display, 
lighting and fixtures 
20% Negotiate terms with major manufacturers and wholesalers; travel overseas 
to meet and develop business relationships with key international suppliers 
10% Ensure company's compliance with mall regulations,' local government 
permits and regulations, and labor, tax and business laws; Consults with 
legal counsel as needed; Represent company's interests at meetings with 
mall officials and meetings 
10% Approve 
or process payments to vendors and suppliers; approve 
disbursements from company's charitable fund 
5% Set employee policies, hire and fire employees, approve salary or wage 
mcreases 
The list also includes a list of job duties, and percentages of time devoted to each, for the Assistant 
Manager, Sales Associates, and Outside Sales Representatives. 
2. Analysis 
Upon review of the petition and the evidence of record, including mate~i~ils submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary was employed in 
a managerial or executive capacity abroad. 
The Petitioner initially provided a broad list of duties performed by the Beneficiary abroad, as listed 
above. The Petitioner did not assign time allocations to specific job duties, which is significant 
because it includes a combination of qualifying and non-qualifying duties. The fact that the 
Petitioner did not assign time allocations to the broadly stated job responsibilities precludes us from 
being able to determine how much time the Beneficiary would actually allocate to the performance 
of tasks that are in a managerial or executive capacity. The petitioner has not provided sufficient 
15 
(b)(6)
Matter of R-G-, Inc. 
detail or explanation of the Beneficiary's activities in the course of his daily routine. The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
In response to both RFEs and on motion, the Petitioner provided some additional information about 
the Beneficiary's position abroad, but again did not provide the percentage of time spent on each 
stated duty. Because the Petitioner did not provide any additional detail in order to clearly show 
how the Beneficiary spent his time, it is impossible for us to conclude that he spent the majority of 
his time on managerial or executive duties, rather than on the non-qualifying duties. 
On appeal, the Petitioner provided a new list of job duties for the Beneficiary's position abroad and 
allocated the percentages of time the Beneficiary devoted to each cluster of duties. However, while 
some of these duties may appear to be executive or managerial in nature, the Petitioner has not 
explained how the Beneficiary's duties abroad evolved throughout the course of this petition and 
how the Beneficiary's listed duties at the foreign entity went from routine operational duties to those 
listed on appeal. For example, the Petitioner stated that the Beneficiary devoted 30% of his time to 
managing all business operations, preparing the operations budget and setting goals, managing 
finances, and maintaining accounting, budget, and payroll, all of which are vague statements that do 
not provide any insight as to what he actually did on a day-to-day basis. The Petitioner did not 
explain or clarify how the Beneficiary carried out these duties or present tasks that he was 
responsible for in carrying out these duties abroad to demonstrate that these specific duties, which 
took up 12 hours of his time every week, were managerial or executive. Conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. 
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 stated that the Beneficiary devoted 25% of time to researching, developing, 
and implementing business ideas, developing proposals for investment, and executing capital 
improvement projects, none of which the Petitioner has articulated as being managerial or executive 
in nature. It is unclear how the Beneficiary carried out these tasks, such that they can be considered 
managerial rather than operational routine tasks required for the continued operations of the 
business. The Petitioner stated that the Beneficiary devoted 20% of his time to negotiating terms 
with manufacturers and suppliers and traveling to develop business relationships, which are not 
managerial or executive duties. Further, the Petitioner has not accounted for the previously 
submitted non-qualifying duties the Beneficiary performed when quantifying those on appeal, and 
has not provided an explanation as to who performed those duties previously assigned to the 
Beneficiary. 
On motion, the Petitioner submitted an expert opinion letter, in which states that she 
believes the Beneficiary's position abroad to be "upper-level management" in nature. It appears that 
analyzed the same list of job duties for the Beneficiary's position abroad initially 
presented with the instant petition and she does not state whether she reviewed any other 
documentation. It is unclear whether analysis considered that the Beneficiary's 
16 
(b)(6)
Matter of R-G-, Inc. 
subordinates' duties and whether they would relieve the Beneficiary from performing operational 
tasks. 
We may, in our discretion, use as advisory opinions statements submitted as expert testimony. See 
Matter of Caron Int 'l., 19 I&N Dec. 791, 795 (Comm'r. 1988). However, we are ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility. !d. Where an opinion is not in accord with other information or is in any way 
questionable, we are not required to accept or may give less weight to that evidence. !d. Because 
review was limited to a review of the Beneficiary's job title and broadly described 
job duties, it has less probative value, considering that our review is based on the totality of the 
evidence in the record. Again, an individual will not be deemed a manager under the statute simply 
because they have a managerial title or because they "direct" the enterprise as the owner or sole 
managerial employee. 
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 to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
On appeal, the Petitioner submitted brief job duties for each of the Beneficiary's subordinate 
employees. However, the listed duties for each of the subordinates' positions are not indicative of 
positions that are managerial, supervisory, or professional in nature. Here, the Petitioner has not 
demonstrated how any of the Beneficiary's . subordinates performed duties that were professional in 
nature. For example, the assistant manager was tasked with supervising sales associates, preparing 
payroll, inventorying new shipments, visiting manufacturers' representatives, and attending trade 
shows, none of which are duties that the Petitioner has demonstrated require the employee to have a 
professional degree. Further, while the assistant manager's listed duties do contain some 
supervisory tasks, it constituted up to 40% of his time, meaning that the focus of his position was the 
operational and administrative function required to sell the product rather than supervise subordinate 
employees. For the reasons discussed above the Petitioner has not demonstrated that the 
Beneficiary's duties primarily focused on the management ofthe organization and the supervision of 
qualifying managerial, professional, or supervisory employees, rather than on or providing a service 
of the foreign entity. 
Alternatively, the Petitioner has not established that the Beneficiary was employed primarily as a 
"function manager." The Petitioner did not articulate how the Beneficiary's duties at the foreign 
entity qualify him as a function manager and did not provide a breakdown indicating the amount of 
time the Beneficiary devoted to duties that would clearly demonstrate that he managed an essential 
function of the foreign entity. 
I"'' 
\ 
Matter of R-G-, Inc. 
The Petitioner also stated that the Beneficiary was employed in an executive capacity; however, the 
Beneficiary's position abroad was not shown to have been primarily executive in nature, and the 
Petitioner did not demonstrate that the Beneficiary's listed duties primarily focused on the broad 
goals and policies of the organization rather than on its day-to-day operations. As noted above, the 
Petitioner did not submit a detailed description of the Beneficiary's position abroad sufficient to 
establish that the Beneficiary's daily routine consisted of primarily executive duties, rather than on 
providing the services or producing the products of the organization. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary was employed in a managerial or executive capacity abroad. 
III. 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. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 
ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of R-G-, Inc., ID# 124534 (AAO Oct. 27, 2016) 
18