dismissed L-1A Case: Remodeling And Construction

(b)(6)
US. Citizenship 
and Immigration 
Services 
MATTER OF H- USA LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 26, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner describes itself as a "Remodeling and Construction; Import & Export" business. It 
seeks to continue to employ the Beneficiary as its president and managing director under the L-1 A 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) § 101(a)(15)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-lA classification allows a corporation or 
other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the 
United States to work temporarily in an executive or managerial capacity. 
The Director initially approved this petition and granted the Beneficiary the requested extension of 
L-lA classification for the period February 13, 2010 through February 12, 2012. Following the 
approval , the Embassy of the in Venezuela , notified the United 
States Citizenship and Immigration Services (USCIS) of derogatory information regarding the 
Beneficiary's eligibility for classification under section 101(a)(l5)(L) of the Act. The Director 
issued a notice of intent to revoke the approval (NOIR) and gave the Petitioner an opportunity to 
submit additional evidence in support of the petition , in accordance with 8 C.F.R. § 
214.2(1)(9)(iii)(B). Upon review of the Petitioner's response, the Director revoked the approval of 
the petition on June 3, 2011 based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed by the U.S. entity in a qualifying managerial or executive capacity. 
The Petitioner asserts on appeal that the Director made numerous errors of fact and claims that the 
evidence on record establishes that the Beneficiary will be employed in the United States in a 
qualifying managerial or executive capacity. The Petitioner submits a brief and additional evidence 
in support of the appeal. 
Upon de novo review, we will dismiss the appeal. 1 We find that the Petitioner has not met its burden 
to establish that the Beneficiary will be, employed in a managerial or executive position. 
Furthermore, even if the Petitioner were to overcome the deficiencies in the record with regard to the 
1 The Petitioner filed three 1-129 petitions that are currently before the AAO on appeal. We reviewed the instant petition 
for the President and Managing Director, along with the L-1 A visa petitions for the V.P./General Manager, 
and the Vice President of Organizational Development, 
Matter of H- USA LLC 
Beneficiary's managerial or executive position, we would need to remand the case to the Vermont 
Service Center to address additional deficiencies in the record. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, 9r in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 101(a)(l5)(L) of tile Act. In addition, the beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. !d. 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) provides that a visa petition, which involved the opening 
of a new office, may be extended by filing a new Form I -129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizatipns as defined in paragraph (1)(1 )(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (1)(1 )(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
Finally, the regulation at 8 C.F.R. § 214.2(1)(9)(iii)(A) provides that the Director may revoke the 
approval of a petition on notice at any time, even after the expiration of the petition, under certain 
circumstances. To properly revoke the approval of a petition, the Director must first issue a notice 
of intent to revoke that contains a detailed statement of the grounds for the revocation. 8 C.F.R. § 
214.2(1)( 19)(iii)(B). 
II. ISSUES ON APPEAL 
A. Managerial or Executive Capacity in the United States 
l 
The primary issue addressed by the Director is whether the Beneficiary will be employed in the 
United States in a managerial or executive capacity. 
2 
(b)(6)
Matter of H-USA LLC 
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 employee primarily: 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making ; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
1. Evidence of Record 
The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, on January 5, 2010. The 
Petitioner is a corporation established in 2008 under the laws of the state of Florida. The Petitioner 
claims on the Form 1-129 that it is a joint venture of two Venezuelan companies: 
and The Petitioner indicated that it is a remodeling/construction and 
3 
(b)(6)
Matter of H- USA LLC 
import/export company with ten employees and gross annual mcome of $448,741.60 as of 
September 30, 2009. 
The Beneficiary was initially granted a one-year period in L-1 A status to open a new office in the 
United States. USCIS subsequently approved the instant petition granting the Beneficiary an 
extension of stay in L-1 A status. The Director later revoked this petition extension, and the 
Petitioner now appeals the revocation. 
In a letter dated December 8, 2009 and submitted in support of the initial petition, the Petitioner 
stated that the purpose of the United States business is to provide "services and products to the U.S. 
construction industry, with special emphasis on the business of construction and remodeling." The 
Petitioner further noted that it is engaged in "small and medium scale remodeling, construction, 
repair, and alteration of projects focusing on residential and commercial contracting." The Petitioner 
provided a corporate organizational chart showing four subsidiary entities: 
and 
The Petitioner stated that the Beneficiary, as the managing director/president, will perfonn the 
following duties: 
• Further develop, establish and direct the subsidiary's mission, financial goals, and 
budgets. 
• Oversee hiring of senior staff, eventually including a General Manager and 
Project Manager, other administrative staff and warehouse workers, and ensure 
proper training procedures and policies. 
• Establish organizational structure and delegate authority to subordinates. 
• Represent organization to financial community , major potential clients, local 
and 
state government agencies, and the public. 
• Oversee the investment of resources by reviewing financial statements and 
making projections according to current conditions. 
• Determine and oversee further investment in the subsidiary, including equipment, 
staffing levels, marketing and publicity , and the like. 
• Analyze costs and determine pricing and profit margins, and report to parent 
company on fluctuations. 
The Petitioner stated that the Beneficiary will directly oversee the work of the assistant to the CEO and 
general manager, the vice president of logistics, and the vice president of marketing and sales. The 
administration and finance assistant is jointly supervised by the Beneficiary and the vice president of 
logistics. The Petitioner provided names and a position description for each position. The Petitioner 
also stated that the Beneficiary indirectly supervises four additional employees. 
The organizational chart initially submitted with the Form 1-129 indicated that 
subordinate employees are: assistant to CEO and general manager, 
marketing and sales, vice president of logistics, 
4 
the Beneficiary's 
vice president of 
An 
(b)(6)
Matter of H-USA LLC 
administration and finance employee, is placed under the vice president of logistics. The 
initial chart also indicates that general manager/vice president, is parallel to the 
Beneficiary. The chart indicates that the general manager/vice president is directly responsible for vice 
president-food division, and vice president-organizational development, 
The vice president-organizational development has a subordinate sales manager, identified as 
and an export coordinator identified as The chart, with regard to the 
Beneficiary's subordinate organizational, structure is as follows: 
Assistant to CEO 
and General Manager 
Board of Directors 
I 
[Beneficiary] 
President/Managing Director 
V.P. Logistics 
I 
Administration and Finances 
V.P. Marketing and Sales 
The Petitioner submitted its IRS Form 941, Employer's Quarterly Federal Tax Returns, Florida 
Employer's Quarterly Reports, New Jersey Employer's Quarterly Reports, and payroll documents in 
support of the petition, among other items. 
The Director approved the instant petition on January 6, 2010.2 Subsequent to the approval, the 
Embassy of the in Venezuela, notified USC IS of derogatory 
information regarding the Beneficiary ' s eligibility for the classification under section 101(a)(l5)(L) 
of the Act. The derogatory information was based, in part, upon statements made by the Beneficiary 
to embassy officials that the U.S. construction business "had never gotten off the ground" and that it 
was changing its focus to import and export and various other lines of business. Further, the 
Beneficiary provided conflicting information about the number of employees the Petitioner 
employed. The Petitioner was also found to have no Internet presence and the company's telephone 
numbers were from residential addresses. Finally, the embassy officials indicated that repeated 
telephone calls to in Venezuela ,'went unanswered. 
On December 1, 2010, the Director issued a NOIR. In this notice, the Director advised the Petitioner 
of the embassy's findings. The Director stated that, based on the information supplied by the 
embassy in it appears that the "instant petitioning entity has not and cannot provide the 
qualifying employment" and instructed the Petitioner to submit additional evidence to establish the 
Beneficiary will be employed in a managerial or executive capacity in the United States. 
2 Although the petition requested an extension of three years, the approval extended the Beneficiary 's L-1 A classification 
for a two year period. See 8 C.F .R. § 214.2(1)(15)(ii) (limiting an extension of authorized stay in L-IA status to 
"increments of up to two years"). 
5 
(b)(6)
Matter of H- USA LLC 
The Petitioner submitted a timely response to the NOIR on January 3, 2011 and provided the following 
documents: ( 1) an affidavit from the Beneficiary; (2) a corporate diagram; (3) another position 
description for the Beneficiary, including the percentage of time spent on each duty; ( 4) employer state 
quarterly tax returns for the third and fourth quarters of 2009 and the first three quarters of 201 0; ( 5) 
education credentials for the Beneficiary; (6) resumes and position descriptions for U.S. employees, 
including the percentage of time spent on each duty; (7) IRS Forms 941, Employer's Quarterly Federal 
Tax Return, for the third and fourth quarters of 2009 and the first, second, and third quarters of 2010; 
(8) IRS Forms W-2 and Form W-3 for 2009; (9) photographs of its physical premises; (10) its U.S. 
bank account information; (11) business invoices for the purchase of heavy machinery and machine 
parts; and (12) its 2009 IRS Form 1120, U.S. Corporation Income TaxRetum. 
The updated organizational chart submitted in response to the NOIR indicates that the Beneficiary 
directly oversees a logistics manager identified as who in tum oversees export 
coordinator, and marketing and sales supervisor, The updated 
organizational chart indicates that warehouse/shipping assistant, is subordinate to the 
marketing and sales supervisor, The chart also changes the structure under 
the general manager/vice president. The chart indicates vice president of 
business development, is subordinate to the general manager/vice president and has a subordinate 
assistant identified as The chart indicates that an additional sales assistant position is 
also subordinate to the vice president of business development, but that the position is currently vacant. 
After reviewing the response to the NOIR, the Director found inconsistencies in the evidence 
regarding staffing levels and the vague position description provided for the Beneficiary. On this basis, 
the Director concluded that the Petitioner did not establish that the Beneficiary will be employed in a 
qualifying managerial or executive capacity in the United States and revoked the approval of the 
petition. 
On appeal, the Petitioner provides additional evidence and asserts that the Director based his decision to 
revoke the approval of the petition on "several factual and legal errors." More specifically, the 
Petitioner asserts that the Beneficiary supervises subordinate professional and managerial level 
employees and therefore the Director erred in finding that the Beneficiary is not employed in a 
managerial or executive capacity. 
2. Employment in a Managerial Capacity 
Upon review of the petition and the evidence, and for the reasons discussed herein, the Petitioner has 
not established that that it will employ the Beneficiary in a primarily managerial capacity under the 
extended petition. 
When examining the executive or managerial capacity of the Beneficiary, we will. look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description 
6 
Matter of H-USA LLC 
of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. 
We also review the totality of the record, including descriptions of a beneficiary's subordinate 
employees, the nature of the petitioner's business, the employment and remuneration of employees,' 
and any other facts contributing to understanding a beneficiary's actual role in a business. 
a. The Nature of the Petitioner's Business 
As a preliminary matter, the Petitioner's description of the Beneficiary's duties is severely restricted by 
I 
the fact that the Petitioner has not provided relevant and probative evidence of the nature of its business. 
The December 8, 2009, letter submitted in support of the initial petition stated that the Petitioner was 
established with the purpose of providing services and products to the U.S. construction industry 
with a special emphasis on the business of construction and remodeling. In response to the NOIR, 
the Beneficiary submitted an affidavit dated December 30, 2010, stating that after being denied the 
proper permits for a day care center, the company shifted its business focus to the importation of 
crabmeat to the U.S. and the export of heavy machinery and parts to Venezuela. On appeal, the 
Petitioner states that "the Petitioner never claimed ... to be engaged 'in construction' per se. In fact, 
the Petitioner exports U.S.-made construction machinery and equipment and parts to construction 
and civil engineering firms primarily in Venezuela." The Petitioner further stated, however, "[W]e 
engage in small and medium scale remodeling, construction, repair, and alteration of projects 
focusing on residential and commercial contracting. 3" The Petitioner must resolve inconsistencies or 
discrepancies in the record with independent, objective evidence pointing to where the truth lies. 
Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Without a clear understanding of the nature of the Petitioner's underlying business, we are unable to 
make a determination regarding the Beneficiary's claimed managerial or executive duties within that 
business. The Petitioner's subordinate employees, daily duties, sales structure, and business model 
are factors used to determine whether the Beneficiary will be relieved of non-qualifying duties or 
whether the company is of sufficient size to support a managerial or executive level position. The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afj'd, 905 F.2d 41 (2d Cir. 1990). 
b. The Beneficiary's Job Duties 
Regarding the Petitioner's description of the Beneficiary's job duties, the Petitioner repeatedly 
provided an overly broad description of those duties in the initial submission, in response to the 
NOIR, and on appeal. For example, the Petitioner stated that the Beneficiary will "develop, 
3 We note that the Petitioner has not provided a copy of a Construction Industry License as required for the State of 
Florida. Furthermore, the Director requested a copy of the U.S. company's current valid business licenses for city, 
county, state and federal authorities. In response, the Petitioner provided a copy of its Business Tax Receipt for 20 I 0-
2011 showing a classification of"IMPORT/EXPORT." 
(b)(6)
Matter of H-USA LLC 
establish, and direct the mission financial goals, and budgets of the Petitioner and the companies it 
operates"; "oversee the investment of resources"; "oversee management of the Petitioner's affiliated 
US companies"; and "establish and revise organization structure." While these broad and 
generalized responsibilities suggest that the Beneficiary has authority over the company's policies 
and activities, they offer little insight into what he will actually do on a day-to-day basis as the 
Petitioner's president and managing director. 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). 
We note that, in response to the NOIR, the Petitioner provided percentages for the Beneficiary's initial 
described duties. Due to the initial job description's lack of sufficient detail, however, the percentages 
did not provide any additional insight into what the Beneficiary does or would do on a day-to-day basis. 
As such, the Petitioner's description of the Beneficiary's job duties does' not sufficiently establish what 
proportion of the Beneficiary's duties is managerial in nature, and what proportion is actually non­
managerial. See Republic ofTranskei v, INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
In response to the NOIR and on appeal, the Petitioner expanded the Beneficiary's duties to include 
overseeing "management of petitioner's affiliated US companies" including 
and others. The Petitioner, however, has not provided sufficient 
evidence to establish its ownership or control over these separate business entities.4 As each 
company is a distinct entity, with no documentation to establish ownership and control, the 
Petitioner has not established that the time the Beneficiary spends or would spend on the 
management of the Petitioner's claimed subsidiaries , including 
and can be considered in determining the Beneficiary 's employment in a 
managerial or executive capacity for the Petitioner. There is also no evidence that the Petitioner has 
been compensated for such services in the past by these other entities or that the Beneficiary is or 
was authorized to be employed by them pursuant to an individual or blanket petition. 
4 The record does not include any documentation demonstrating ownership of the Petitioner's claimed subsidiaries. The 
electronic articles of incorporation for indicate that the corporation is authorized to issue 
I ,000 shares ; however , the record is void of evidence to establish the actual number of shares issued and the ownership 
of those shares. Similarly , the articles of incorporation for indicate that the company 's officers are 
and and that the issuance of I 00 shares of company stock is 
authorized, but there is no evidence to indicate the actual ownership . 
Additionally, the record contains inconsistent information regarding the ownership of and 
The Petitioner's 2009 and 20 I 0 Form 1120 indicates that the Petitioner owns 66% of and I 00% of 
however, the company relationship chart and December 8, 2009 letter in support of the petition indicate that the 
Petitioner owns 90% of and 60% of A Form I 065 provided for also 
indicates his ownership , in an individual capacity, of 33.333% of Again, the Petitioner must resolve 
inconsistencies or discrepancies in the record with independent , objective evidence pointin g to where the truth lies, 
Matter of Ho, I 9 J&N Dec. at 591-592. 
8 
Matter of H-USA LLC 
c. The Employment and Remuneration of Employees 
On appeal, the Petitioner claims that the Beneficiary supervises professional and managerial level 
employees and that the Petitioner was sufficiently staffed at the time of filing to relieve the Beneficiary 
from performing non-qualifying duties. Specifically, the Petitioner claims that both the Marketing 
Manager and Logistics Manager are both professional and managerial level positions. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). 
Personnel managers are required to supervise and control the work of other supervisory, professional, or 
managerial employees. The statute plainly states that a "first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional." Section 101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 
214.2(1)(1 )(ii)(B)(2). If a beneficiary directly supervises other employees, the beneficiary must also 
have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. 8 C.F.R. § 214.2(1)(1)(ii)(B)(3). 
Based on the submitted evidence, the Petitioner's organizational chart submitted with the initial 
filing reflects staffing levels as of the filing date. The chart submitted in the initial petition indicates 
that an assistant to the CEO and general manager; a vice president of logistics; and a vice president of 
marketing and sales are directly subordinate to the Beneficiary. An administration and finance position 
is shown as subordinate to the vice president of logistics. 
The organizational chart submitted in response to the NOIR, however, creates an additional level of 
hierarchy by placing a vice president of marketing and sales and his subordinate assistant under the 
Beneficiary's subordinate vice president of logistics. Based on the federal and state employer 
quarterly tax returns, however, it appears that the Beneficiary's subordinate employees at the time of 
filing are the same as those listed on the initial organizational chart. Furthermore, the position of 
Assistant Warehouse/Shipping, shown on the organizational chart submitted in response to the NOIR, 
· does not appear to have existed as of the date of filing. The purpose of the request for evidence is to 
elicit further information that clarifies whether eligibility for the benefit sought has been established 
as of the time the petition is filed. See 8 C.F .R. § 103 .2(b )(1 ), (8), (12). The Petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be 
eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be 
approved at a future date after the Petitioner or Beneficiary becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). Our 
analysis, therefore, will be based on the organizational chart submitted at the time of filing. 
We note inconsistencies in the submitted evidence related to the 'Petitioner's staffing levels and 
wages paid. For instance, the Petitioner's IRS Form 941 for the first quarter of 2010 shows that 11 
employees were compensated total wages of $64,758.02 in this quarter. The Florida Department of 
Revenue Employer's Quarterly report, however, shows that eight to nine employees were 
compensated a total of $44,387.21 during that same quarter. Further, the Petitioner attests on the 
Form 1-129 (also filed in this same quarter) that it employs ten employees. Again, the Petitioner 
9 
Matter of H-USA LLC 
must resolve inconsistencies or discrepancies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
Additionally, the IRS Form W-3 states that the Petitioner issued a total of 10 IRS Forms W-2 in 2009. 
The IRS Form W-3 and corresponding IRS Forms W-2 represent that the company paid $110,649.49 in 
wages, tips, and other compensation in 2009. The company's 2009 IRS Form 1120, however, indicates 
that the Petitioner paid $66,583 in salaries and wages and $38,000 for the compensation of officers, 
totaling $106,583. 
On appeal, the Petitioner claims that the inconsistencies in the wages reported on tax documents were 
the result of an accounting error and, in support of this assertion; it submitted an IRS Form 1120X, 
Amended U.S. Corporation Income Tax Return reflecting $72,648 in salaries and wages and $38,000 in 
officer compensation. There is no evidence, however, that the amended tax return was actually filed 
with the Internal Revenue Service (IRS), and the return has not been signed by an officer of the 
company. Absent such documentation, there is insufficient independent and objective evidence in the 
record to show that the reported wages were an accounting error. Again, the Petitioner is obligated to 
clarify the inconsistent and conflicting testimony by independent and objective evidence. Matter ofHo, 
19 I&N Dec. at 591-92. 
The inconsistent evidence in conjunction with the differing organizational charts do not provide a 
sufficient understanding of whom the Petitioner employed and what employees would be 
subordinate to the Beneficiary. 
Even assuming that the staffing levels at the time of filing are those listed on the initial 
organizational chart, it is not clear who performs the actual day-to-day duties of the company. At 
the time of filing, Petitioner claimed to employ the Beneficiary as president/managing director, a 
general manager/vice president, four vice presidents, a sales manager, an assistant to the CEO and 
general manager, and an administration and finances employee. Of the number of employees listed 
on the Form I-129, the Petitioner asserts that seven often employees were managerial or supervisory 
level positions, leaving three employees to perform the actual day-to-day duties of the company. 
Moreover, as discussed, the Petitioner has not provided a consistent description of the nature of its 
business activities. Of the Petitioner's three iterations of its business model, the organizational chart 
does not show how any of these business lines are supported by sufficient staffing. First, if the 
Petitioner performs construction work, there is no staff tasked with performing construction services. 
If the Petitioner imports crabmeat, there is a V.P.-Food Division and sales manager, but no 
subordinate staff to perform warehousing, sales, importation of the goods, or marketing duties, 
among others. If the Petitioner exports construction equipment, there is an export coordinator and 
sales manager, but again no sales staff, warehouse staff, purchasing staff, or marketing staff. Thus, 
the Petitioner has not demonstrated that it has sufficient staff to relieve the Beneficiary from 
performing non-managerial duties. An employee who primarily performs the tasks necessary to 
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Matter of H- USA LLC 
produce a product or to provide services is not considered to be employed in a managerial or 
executive capacity. Matter of Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988).5 
d. Subordinate Employees Are Not Employed in Professional, Managerial, or Supervisory 
Positions 
Even if the Petitioner had established that it had staff available to relieve the Beneficiary from 
performing non-managerial or executive duties, which it did not, the Petitioner has not demonstrated 
that the Beneficiary's claimed subordinates are employed in professional, managerial, or supervisory 
positions. 
When examining the managerial capacity of a beneficiary, we review the totality of the record, 
including evidence to substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy. Artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is 
sufficiently complex to support a managerial capacity position. An individual whose primary duties 
are those of a first-line supervisor will not be considered to be acting in a managerial capacity 
merely by virtue of his or her supervisory duties unless the employees supervised are professional. 
Section 101(a)(44)(A)(iv) ofthe Act. 
In the present matter, the totality of the record does not support a conclusion that the Beneficiary's 
subordinates are supervisors or managers. As stated above, the Pytitioner claimed that seven out of 
ten of its employees ,are managerial or supervisory positions, leaving only three employees to 
perform the actual day-to-day duties of the company. On the other hand, the organizational chart 
submitted at the time of filing shows that the only claimed subordinate supervisory position is the 
vice president of logistics who in turn supervises the administration and finances position. In either 
case, the Petitioner has not demonstrated that the vice president of logistics will act in a managerial 
or supervisory capacity. In fact, the Petitioner's initial description of the vice president of logistics 
position indicates the opposite. Specifically, it includes mainly non-supervisory duties such as 
"receiving, checking and inspecting all materials requested" and ensuring "correct labeling and 
packaging of finished goods," as well as working with "vendors and the materials departments 
regarding returns and material issues," among others. In addition, the description of the vice 
president of logistics' subordinate position states that she will be managing "all employees, 
contractors and sub-contractors." But the Petitioner has not provided any evidence related to these 
additional workers, e.g., W -2s, 1 099s, invoices, checks, or bank statements. Furthermore, her 
5 We agree with counsel, however, that the seemingly low wages reported on IRS Form W-2 for 2009 did not reflect a 
full year of payments to the Petitioner's employees. We therefore withdraw the Director's finding that the wages paid 
during that part of 2009 were not commensurate with that of bone fide managerial, executive, or professional employees. 
We do not, however, find that this factual error was material. That is, it does not change the fact that the record failed to 
demonstrate that the Beneficiary has been and would continue to be employed in a managerial or executive capacity. 
Specifically and as discussed in greater detail herein, the Petitioner did not provide a detailed description of the 
Beneficiary's actual duties and did not resolve apparent inconsistencies in the record with respect to its staffing levels. 
II 
Matter of H- USA LLC 
description does not include any duties related to the administration and finance work associated 
with her title. 
In addition, the Petitioner has not shown that the Beneficiary's subordinates qualify as professional 
level positions. The Petitioner has not established how the duties stated above for the vice president 
of logistics qualify as professional in nature. 6 Similarly, the inconsistencies in the Petitioner's 
description for the vice president of marketing and sales casts doubt on whether the position is 
professional level. Specifically, the position description for this position in the initial filing states that 
the position is responsible for: developing pricing strategies; identifying, developing, and evaluating 
marketing strategies; evaluating the financial aspects of the services and products provided; and 
coordinating all sales and marketing aspects. The resume provided for the employee in this position, 
however, indicates that 'he is employed by the Petitioner as a sales representative and that his 
responsibilities include the sale of parts and accessories for vehicles and heavyweight machinery. 
Again, the Petitioner must resolve inconsistencies or discrepancies in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92,7 Absent 
such evidence, the Petitioner has not established that the vice president of marketing and sales is a 
professional level subordinate employee. 
Overall, the Petitioner has not demonstrated that the Beneficiary's subordinates' duties are managerial, 
supervisory, or professional in nature. Based on the lack of evidence presented as well as the position 
descriptions and inconsistencies in the record related to the Petitioner's staffing, we find the record does 
not contain sufficient, credible evidence of an existing organizational structure that would elevate the 
Beneficiary's supervisory duties to those that are higher than a supervisor of non-professional, non­
managerial, or non-supervisory employees. Therefore, the Petitioner has not demonstrated that the 
Beneficiary would continue to act in a qualifying managerial capacity. 
3. Employment in an Executive Capacity 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
an organizational hierarchy, including major components or functions of the organization, and his or her 
6 In evaluating whether the Beneficiary manages professional level employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavoL Cf 8 C.FK § 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 IOI(a)(32) of the Act, 8 U.S.C. § 110l(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." 
7 Furthermore, the record does not contain education credentials for the Beneficiary's subordinate employees. While the 
Petitioner claims that degrees for the beneficiary's subordinate employees were not provided because the documents could 
not be obtained before the deadline of the NOIR; the documents have not been provided on appeal. The Petitioner cannot 
meet its burden of proof simply by claiming a fact to be true, without supporting documentary evidence. Matter ofSofjici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft ofCal., 14 1&N Dec. 190 (Reg'! Comm'r 1972)); see 
also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 20 I 0). The Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Matter o[Chawathe, 25 I&N Dec. at 376. 
12 
Matter of H-USA LLC 
authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
Under the statute, a beneficiary must primarily spend his or her time directing the management and 
establishing the goals and policies of that organization. !d. Inherent to the definition, the organization 
must have a subordinate level of employees for the beneficiary to direct and the beneficiary must 
primarily focus on establishing the broad goals and policies of the organization rather than performing 
or directly supervising the day-to-day operations of the enterprise. An individual will not be deemed an 
executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude 
in discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." !d. Due to the overall lack of 
evidence as well as the inconsistencies in the Beneficiary's position description and subordinate staffing 
described above, the Petitioner has not shown that its organization is of sufficient size and structure to 
support an executive level position. 
4. Conclusion 
Due to the Petitioner's inconsistent description of its business operations, vague position 
descriptions, and insufficient and contradictory information regarding staffing levels, the Petitioner 
has not met its burden to show that the Beneficiary will be employed in a managerial or executive 
capacity position as defined by the Act and its implementing regulations. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitwner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
Accordingly, the appeal will be dismissed. 
III. ADDITIONAL ISSUES 
Even if the Petitioner were to overcome the deficiencies in the record with regard to the 
Beneficiary's managerial or executive position, we would need to remand the case to the Vermont 
Service Center to address additional deficiencies in the record, specifically with respect to: (1) 
whether (a) the Petitioner has demonstrated that it has been doing business for the year prior to filing 
the extension and whether (b) the United States entity continues to do business as required; (2) 
whether the Petitioner (a) has a qualifying relationship with a foreign entity and (b) continues to 
conduct business abroad; and (3) the Beneficiary's qualifying managerial or executive employment 
with the foreign entity. 
A. Doing Business in the United States 
At the time of filing a petition to open a "new office," a petitioner must affirmatively demonstrate 
that it has acquired sufficient physical premises to commence business, that it has the financial 
ability to commence doing business in the United States, and that it will support the beneficiary in a 
managerial or executive position within one year of approval of the petition. See generally 8 C.F.R. 
§' 214.2(1)(3)(v). If approved, the beneficiary is granted a one-year period of stay to open the "new 
office." 8 C.F.R. § 214.2(l)(7)(i)(A)(3). At the end of the one-year period, when the petitioner seeks 
13 
(b)(6)
Matter of H-USA LLC 
an extension ofthe "new office'' petition, the regulation at 8 C.F.R. § 214.2(1)(14)(ii)(B) requires the 
petitioner to demonstrate that it has been doing business "for the previous year" through the regular, 
systematic, and continuous provision of goods and/or services. See 8 C.F.R. § 214.2(l)(l)(ii)(H) 
(defining the term "doing business"). The mere presence of an agent or office of the qualifying 
organization will not suffice. !d. Therefore , when a petitioner indicates that a beneficiary is coming 
to the United States to open a "new office ," it must show that it is ready to commence doing business 
immediately upon approval. 
The record supports a finding that the Petitioner has not sustained operations for the required one 
year prior to filing the new office extension petition on December 26, 2009. The Petitioner claims 
that it did not commence business operations until approximately June of 2009, six months prior to 
the filing date of the petition. The Petitioner states in its brief on appeal that it launched in the "latter 
part of2009" as well as stating that it began operations in "June of2009." 
The evidence of record shows no business activity earlier than May of 2009: the earliest 
documentation of business by the Petitioning entity is a purchase order from May 20, 2009. 8 
Additionally, the Petitioner did not appear to have any employees on staff earlier than the third 
quarter of 2009. The Petitioner submitted quarterly payroll reports for the last two quarters of 2009 , 
and stated in response to the NOIR that it did not have any employees for the first two quarters of 
2009. We note that the Petitioner submitted tax returns and consolidated financial statements 
showing income for 2010, but the statements do not show what month the entity began sales. The 
Petitioner's IRS Form 1120, U.S. Corporate Income Tax Return, for 2008 shows $0 in total income. 
Again, at the time the petitioner seeks an extension of the new office petition, the regulation at 8 
C.F.R. § 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing business for 
. the previous year. We recognize the Petitioner 's assertions that it had problems obtaining the 
required day-care permits and consequently switched business models. There is no provision in the 
regulations, however, allowing for the extension of this one-year period. If the business has not been 
sufficiently operational for the previous year , the petitioner is ineligible for an extension by 
regulation. In the ins_tant matter, the petitioner has provide_d evidence of a mere six months of 
operations, falling short of the one year requirement. 
Furthermore, despite claims that it began operating in June of 2009, the Petitioner has not provided 
sufficient evidence to show that 
it has been doing business , as that term is defined in the regulations , 
since June of 2009 and continues to do so to date. The minimal documentation of the Petitioner's 
business operations raises the issue of whether the Petitioner is a qualifying organization engaged in 
the regular, systematic, and continuous provision of goods or services and does not represent the 
mere presence of an agent or office in the United States." 8 C.F.R. § 214.2(l)(l)(ii)(G)(2). 
8 We note that the petitioner submitted invoices dating back to February 16, 2010 to the Petitioner's D/8/A , 
for the purchase of equipment, but the documentation does not support a finding that the Petitioner was 
engaged in the sale of goods or the provision of services at that time. Similarly , the Petitioner has submitted freight 
receipts of goods shipped to the foreign emplo yer, but has not submitted any evidence to show that the U.S. Petitioner 
was involved in the purchase or sale of goods to the foreign employer. 
14 
(b)(6)
Matter of H-USA LLC 
As stated above, the first issue is that the Petitioner has not provided a consistent and credible 
description of their current business. The Petitioner has claimed the following throughout the 
duration of this petition and appeal: (1) the provision of construction services and products to the 
United States, including engaging in the construction business and offering remodeling services; (2) 
the exportation of heavy equipment to Venezuela and importation of crabmeat to the United States; 
and (3) the exportation of construction equipment. 
We note that the Petitioner has submitted numerous invoices for the purchase of heavy equipment 
and machinery as well as shipping statements to the foreign parent company. The Petitioner, 
however, has not provided any bill of sale or shown payment made by the parent company, or any 
other end-client, to the United States Petitioner. In addition, the Petitioner provided many bank 
statements from its account. The statements, however, show checks 
cashed and 
some other minimal activity, but do not provide further information regarding what other entities are 
making payments and providing income to the Petitioner. 
The Director noted in the revocation decision that the Petitioner 's photos cast doubt on the validity 
of the United States operations. Specifically , the Director noted the following with respect to the 
submitted photographs: 
The interior warehouse photos show automobiles, an almost empty work area, and a 
person who appears to be cleaning up the same space using a forklift. Two other 
unidentified people are shown at work at counters along a side wall of the warehouse, 
but no clearly discernible product is highlighted. The office photographs show three 
people at work at computer desks. No properly identified workers or customers are 
pictured, as requested. 
On appeal, the Petitioner states that the NOIR did not request the Petitioner to identify the workers in 
the photographs. The Petitioner generally states that the photos show "employees, products, 
activities" in the office and the warehouse. 
We agree with the Petitioner's assertion that the NOIR did not request the Petitioner to identify the 
workers in the submitted photographs. We note, however, that the photographs do not provide any 
detail regarding the Petitioner's business operations . The photographs show minimal equipment 
which is purportedly the Petitioner's basis of business operations. Furthermore, it is not clear how 
the automobiles fit into the Petitioner's business model of exporting heavy machinery. The 
Petitioner has not responded to the Director's concerns in this regard. 
Due to the Petitioner's minimal evidence of ongoing operations, inconsistent business description, 
and photographs depicting little to no business operations, the record does not establish (a) the 
Petitioner has bee~- doing business for the year prior to filing the extension; and (b) it is currently 
doing business as required. For these reasons, even if the Petitioner were to overcome the 
deficiencies in the record with regard to the Beneficiary's managerial or executive position, we 
15 
(b)(6)
Matter of H-USA LLC 
would need to remand the case to the Vermont Service Center to address these deficiencies in the 
record. 
B. Qualifying Relationship and Doing Business Abroad 
"Doing business " means the regular, systematic, and continuous provision of goods and/or services 
by a qualifying organization and does not include the mere presence of an agent or office of the 
qualifying organization in the United States and abroad . 8 C.F.R. § 214.2(1)(1)(ii)(H). To qualify 
for an L classification, the foreign entity must continue to actively engage in the regular , systematic, 
and continuous provision of goods while the beneficiary is temporarily assigned to work in the 
United States. Here, the Petitioner has not established that the foreign entity continues to do 
business abroad. 
On the Fo'rm I-129, the Petitioner asserts that it is a joint venture between the Beneficiary ' s foreign 
employer, and another entity, The record establishes the 
Petitioner's relationship with the foreign employer as asserted. The question raised by the Director 
in the NOIR , however, is whether the Beneficiary's foreign employer continues to do business as 
claimed , noting that attempted calls to the claimed affiliated entity in Venezuela went unanswered. 
The Petitioner asserts in response to the NOIR and on appeal that it continues to do business through 
an affiliated entity which has a civil construction project valued at $20 million 
USD to build the But the Petitioner must show that it has a qualifying relationship 
with the claimed affiliated venture, and that this venture continues to do business 
as required. As explained below, the Petitioner does not establish that the foreign employer has a 
qualifying relationship or continues to do business as required through the affiliated entity, 
· Accordingly , the record does not establish that the Petitioner's foreign employer , 
continues to do business as required . · 
1. Record of Evidence 
With the Form I-129, the Petitioner provided the following evidence of business 
operations: Venezuelan tax documents from 2006 and 2008 ; reference letters dated February 26, 
2008 from business associates and banks attesting to the foreign entity 's business operations; 
translated copies of the opening and closing balances of its bank accounts; and payroll documents. 
Most documents in the record show the business operations of the are prior to the 
filing of this petition, specifically pre-dating 2008. 9 Of the three contracts to be completed after 
2008, two contracts are solely for work to be performed by another entity, The 
9 The Petitioner provided a spreadsheet that lists assigned works and contracts from January 12, 2004 
through March 5, 2007 and translated copies of contracts for work to be performed by 
and during 2008. 
16 
(b)(6)
Matter of H-USA LLC 
third contract states that and associated in the form of a 
consortium named are to complete construction works for a third party contractor 
between July 15, 2009 and January 15, 2010. The contract is signed by the Beneficiary, as 
representative for but is unsigned by the contractor's representatives. 
In the NOIR, the Director notified the Petitioner that attempts to call the foreign entity during normal 
business hours were unsuccessful. 
In response to the NOIR , the Petitioner submitted an affidavit from the Beneficiary claiming that at 
the time of the consular interview in Venezuela in February 2010, the foreign entity had formed a 
joint venture with called The Beneficiary claims that the joint 
venture has a $20 million construction contract for the in state, and although 
the foreign entity's original office remains open, the foreign entity was in the process of relocating 
the majority of its staff to state. The Beneficiary states that the new address is 
Venezuela." 
The Petitioner also submitted a partial translation of a document purporting to form 
as a joint venture between the Beneficiary, in his capacity as managing director of 
and in his capacity as president of It appears that 
only a portion of the original document is included as the document ends mid-sentence on page 
three. The translation provided is less than a half page, and does not include the responsibilities and 
liabilities of the parties. The contract and a registration of fiscal information indicate that the 
company's . address is 
The Petitioner also submitted a subcontract agreement from identifying 
as the subcontractor. The original contract is forty pages in length. However, the 
translation provided is less than one page. 
The Director noted in the revocation that evidence of the "alleged presence and operation of the 
foreign entity is in the Spanish language with no translations." The Director also noted that 
photographs of the foreign company do not show specific business signs, employees, or customers to 
identify the business and that no probative evidence was submitted affirming the operation of the 
foreign entity. 
The Petitioner asserts that the NOIR did not request that the Petitioner submit photos of the foreign 
affiliate, and that the, photos were submitted to show the presence of the foreign affiliate at the 
construction site. 
17 
(b)(6)
Matter of H-USA LLC 
2. Analysis 
Upon review of the petition and the evidence, and for the reasons discussed herein, the record does 
not establish that the foreign entity is doing business abroad, or otherwise doing business through 
any qualifying claimed joint venture. 
As a preliminary matter, the evidence of record does not support a finding that the foreign entity is 
doing business as the Beneficiary 's claimed foreign employer on the Form 1-
129. As stated above, the Petitioner has not provided any valid contracts or invoices for the period 
requested in the name of nor has it otherwise shown how it will continue to do · 
business as this entity. The unanswered phone calls and statements from the Beneficiary in response 
to the NOIR regarding a changed office location cast doubt on whether this entity continues to 
operate at all. Furthermore , the most recent lease the Petitioner submitted for this entity ended May 
1, 2009. 
The Petitioner, therefore, must show that it conducts its operations abroad through one of the 
claimed joint ventures. As an initial matter, the Petitioner has submitted documents relating to two 
different entities. In the initial submission, the Petitioner submitted contracts and documents relating 
to a joint venture named In response to the NOIR, however, the Petitioner 
submitted information relating to a joint venture named 
The Petitioner has not established that either joint venture is a valid, legal entity and has a qualifying 
relationship with the Petitioner. The record contains a translated contract dated January 26, 2006 
between the Beneficiary, representing and 
representing creating a consortium , named however, the 
original document is not included in the record. In response to the NOIR, the Petitioner also 
submitted a partial translation of a document purporting to form The Petitioner 's 
partial translation of the documents is insufficient for the purposes of these proceedings. The 
regulation requires that "[a]ny document containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation which the translator has certified as complete and 
accurate ... " 8 C.F.R. § 103.2(b)(3) (emphasis added). 
Without a full translation of the document , we are not able to determine the nature, scope, parties , 
and terms of the joint venture or "consortium." In the case of a 50-50 joint venture, where each of 
two corporations (parents) owns and controls 50 percent of a third corporation Uoint venture), a 
subsidiary relationship is created for purposes of section 10l(a)(l5)(L) of the Act under certain 
conditions. See Matter of Siemens Medical Systems, Inc., 19 I. & N. Dec. 362, 364 (BIA 1986); 
Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982); 8 C.F.R. § 214.2(l)(l)(ii)(K). 10 Without a full 
10 In order to meet the definition of a "qualifying organization ," there must be three corporations : two parent companies , 
and a third corporation establi shed as the joint venture . /d. The joint venture must be formed as a corporation or other 
legal entity. 8 C.F.R. § 214 .2(1)( I )(ii)(G) . A business created by a contract as opposed to one created under corporation 
law is not be deemed a " legal entity" as used in section I 0 I (a)( 15)(L) of the Immigration and Nationalit y Act. Matter of 
18 
(b)(6)
Matter of H-USA LLC 
translation of the document , we are unable to determine if the joint venture meets the definition of a 
qualifying organization. 
Even if the Petitioner could show a qualifying relationship with either entity, or 
the Petitioner has not provided sufficient evidence to show that the foreign 
entities are doing business as required. Specifically , the 2009 contract for work to be performed by 
is unsigned by representatives of the other party, and does not appear to be a valid 
contract. Furthermore, the latest contract related to this joint venture ended January 15, 2010, or ten 
days after the filing date. The Petitioner has not submitted any additional evidence of business 
activity related to 
Regarding the Petitioner claims on appeal that the "vital aspects" of the contract 
for its work on the have been translated; however, certified translations have not been 
provided for parts of the contract. The Petitioner also submitted a subcontract agreement from 
identifying as the subcontractor. The original contract is 
forty pages in length, but the translation provided is less than one page. As stated above, the 
regulation requires that "[a]ny document containing foreign language submitted to users shall be 
accompanied by afull English language translation which the translator has certified as complete and 
accurate ... " 8 C.F.R. § 103.2(b)(3) (emphasis added). 
The Petitioner has not demonstrated that it has a qualifying relationship with a foreign entity. In 
addition , even if it had documented a qualifying relationship with a foreign entity, the Petitioner has 
not established that that either of the claimed foreign entity continues to do business as required . For 
this additional reason, even if the Petitioner were to overcome the deficiencies in the record with 
regard to the Beneficiary's managerial or executive position, we would need to remand the case to 
the Vermont Service Center to address this additional deficiency in the record. 
C. Managerial or Executive Capacity with the Foreign Employer 
The evidence of record does not establish that the foreign entity employed , the Beneficiary in a 
qualifying managerial or executive capacity. The only description of the Beneficiary 's duties abroad 
was provided in a letter in support of the initial petition. The description was vague and provided 
minimal specifics on what the Beneficiary did on a day-to-day basis in his position as the foreign 
entity's president and director. The duties provided merely paraphrased the applicable statute and 
regulations including duties such as: "conducting the management and overseeing the progress of the 
company "; managing the "operations of the business"; supervising personnel as well as "all policies 
and procedures of the business." 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.). Furthermore, the Petitioner has not provided any of the Beneficiary's 
Hughes, 18 J&N Dec. at 294; see also Matter of Schick, 13 l&N Dec. 647 (Reg. Comm. 1970). 
19 
(b)(6)
Matter of H- USA LLC 
subordinates' pos1t1on description or educational requirements to show that the Beneficiary 
supervised and controlled the work of other supervisory, professional, or managerial employees. 
We also note that the Petitioner has not submitted evidence to establish that the Beneficiary has at 
least one continuous year of full-time employment abroad with a qualifying organization within the 
three years preceding the filing of the petition. See 8 C.F.R. § 214.2(1)(3)(iii). On the Form 1-129, 
the Petitioner claims that the Beneficiary was employed with the foreign entity, 
from 1997 to "Present" without any interruptions. The Petitioner stated that as evidence of the 
Beneficiary's employment , it provided payroll documents with certified translations. The payroll 
documents submitted covered the period from May 3, 2009 to September 30, 2009. According to 
the Form I-129, however, the Beneficiary first entered the United States on February 15, 2009. The 
Petitioner also submitted the foreign entity's payroll documents covering the period from June of 
2007 until the Beneficiary's entry to the United States, but the Beneficiary is not listed as an 
employee during this period . 1 1 
Due to the vague position description provided for the Beneficiary's employment abroad, lack of 
evidence regarding subordinate employees, and contradictory payroll documents , the record does not 
show that the Beneficiary was employed for at least one continuous year of full-time employment in 
a managerial or executive position with the foreign employer. For this additional reason, even if the 
Petitioner were to overcome the deficiencies in the record with regard to the Beneficiary's 
managerial or executive position , we would need to remand the case to the Vermont Service Center 
to address this additional deficiency in the record. 
IV. CONCLUSION 
Based on the foregoing discussion and in light of the unresolved discrepancies noted above, the 
Petitioner has not established that the Beneficiary will be employed in a managerial or executive 
capacity in the United States. Accordingly, we find that the Director appropriately revoked the 
approval of the petition pursuant to 8 C.F.R. § 214.2(1)(9)(iii)(A)(5): "Approval of the petition involved 
gross error." In visa petition proceedings , the burden of proving eligibility for the benefit sought 
remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende , 26 
I&N 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed 
Cite as Matter of H- USA LLC , ID# 16066 (AAO Sept. 26, 20 16) 
11 The Petitioner also submitted a document from an accountant claiming to review the Beneficiary 's income from the 
period of February 26, 2007 to February 26, 2008 . The accountant , however , stated only that the documents have been 
"revised" and that "all is in accordance to the documents provided to me" and does not make any statements regarding 
his employment with the foreign entity. 
20