dismissed L-1A Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF FE- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT.19,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant acquisition and management business, seeks to temporarily employ the 
Beneficiary as the president of its new office 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, California Service Center, denied the petition. The Director concluded that the Petitioner 
did not establish that the Beneficiary had at least one continuous year of full-time employment abroad 
with a qualifying organization within the three years preceding the filing of the petition. In addition, the 
Director found that the Petitioner did not demonstrate that the Beneficiary acted in an executive 
capacity, as defined by the regulations, while employed abroad. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Beneficiary's 
employment with other companies outside the foreign entity, cited by the Director in her denial, did not 
interfere with his full-time employment with the foreign entity. The Petitioner contends that it 
submitted "ample evidence" to establish that the Beneficiary acted in a qualifying executive capacity 
abroad. 
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 A~t. 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, executive, or specialized knowledge capacity. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, Petition 
for a Nonimmigrant Worker, shall be accompanied by: 
Matter of FE- Inc. 
I 
(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) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services .in the United States; however, the work in the United 
States need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v) further provides that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a new 
office in the United States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial capacity 
and that the proposed employment involved executive or managerial authority 
over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (1)(1 )(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
2 
(b)(6)
Matter of FE- Inc. 
II. ONE YEAR OF EMPLOYMENT ABROAD 
The first issue addressed by the Director is whether the Petitioner established 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). 
The regulation at 8 C.F.R. § 214.2(1)(1 )(ii)(A) defines "intracompany transferee" as: 
An alien who, within three years preceding the time of his or her application for 
admission into the lJnited States, has been employed abroad continuously for one year 
by a firm or corporation or other legal entity or parent, branch, affiliate or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or 
her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof 
in a capacity that is managerial, executive or involves specialized knowledge. Periods 
spent in the United States in lawful status for a branch of the same employer or a 
parent, affiliate, or subsidiary thereof and brief trips to the United States for business or 
pleasure shall not be interruptive of the one year of continuous employment abroad but 
such periods shall not be counted toward fulfillment of that requirement. 
A. Evidence Record 
The Petitioner filed the petition on December 18, 2015. The Petitioner stated that it is an affiliate of 
a Chinese company that "specializes in the 
distribution of internationally renowned brands of cinema equipment, including professional cinema 
speakers, amplifiers, digital cinema sound processors, 3D glasses, lamps" and other related equipment. 
The Petitioner indicated that the foreign entity also provided "professional technical services, including 
project design, customized products and services, consultancy, installation, commissioning, servicing of 
equipment, and rental services." The Petitioner explained that the foreign entity "has installed cinema 
equipment in over 300 theaters in China" and that it earned over 8 million RMB during 2011. 
The Petitioner stated that has employed 
the Beneficiary as its president since February 201 0 
and noted his employment with three other entities during this same period. The Petitioner also 
submitted the Beneficiary's resume which provided the same information regarding his concurrent 
foreign employment while employed by specifically as chief executive officer of 
in from "2008-Present," as general manager of 
from "2005-Pr~sent," and as co-owner of from 2009 to 2014. 
The Director later issued a request for evidence (RFE). The Director emphasized that the 
Beneficiary 'had been in the United States since March 2014 on an F-2 nonimmigrant visa, and that 
the' record indicated that he worked for multiple foreign companies during the period preceding his 
entry to the United States. The Director determined that these facts raised questions as to whether 
employed the Beneficiary in a full-time executive capacity. As such, the Director requested 
that the Petitioner provide copies of the Beneficiary's personnel records to confirm his full-time 
3 
(b)(6)
Matter of FE- Inc. 
employment abroad for one year in the three preceding the petition. 
In a response letter, the Petitioner stated the following: 
[The Beneficiary] has been spending the majority of his time in the U.S. since March 
22, 2014. He continues to be involved in major decision making of the Foreign 
Company, including both business decisions as well as internal management 
decisions. He continues to communicate on a regular basis with the General 
Manager of the Foreign Company, and manages the General Manager's 
performance. Since March 2014, [the Beneficiary's]salary has been withheld by the 
Foreign Entity due to a lack of cash flow [ ... ] 
[The Beneficiary] is no longer the co-owner of He 
does not hold any position with the restaurant. During his co-ownership, [the 
Beneficiary] performed marketing duties for the restaurant exclusively on his own 
personal time. He never worked at the premises and only visited occasionally. 
and are both affiliated holding 
companies of [the foreign entity]. Both and main purpose is to 
hold IP and other properties. All operation remains in [the foreign entity], and thus 
as the President of the [foreign entity], [the Beneficiary] maintained control of all 
three affiliated companies. 
The Petitioner further asserted that the Beneficiary was employed by the foreign entity on a full-time 
basis from February 8, 2010, to March 21, 2014, thereby fulfilling the Beneficiary's required one year 
of employment in the three years preceding the filing of the petition on December 18, 2015. The 
Petitioner submitted an additional letter explaining the Beneficiary's foreign employment, stating that 
since March 22, 2014, the Beneficiary has been working remotely from the United States. The letter 
further indicated that the Beneficiary created the and brand names in 2010 and 
that the foreign entity ."has been using the same team to develop and manage these two brands and there 
have never been separate employees or separate offices for these companies." The Petitioner explained 
that "although [the Beneficiary] holds these two companies as their CEO and General Manager, as 
required by law to retain their business licenses, his only full-time job is President of [the foreign 
· entity]." In addition, the Petitioner stated that the Beneficiary was co-owner of the 
from 2009 to 2014, that he invested in the restaurant, and that he handled its 
marketing from 2009 to 2014 "on his own personal time." The Petitioner indicated that the Beneficiary 
gave up his ownership interest in 2014 and that the Beneficiary's brother manages the restaurant. 
The Petitioner provided payroll listing for the period 2011 through 2014 reflecting that the 
Beneficiary earned 119,000 RMB in 2011, 198,000 RMB in 2012, 120,000 RMB in 2013, and 20,000 
RMB in 2014. The Petitioner also submitted the Beneficiary's "pay slips" for 2010 through 2014. The 
pay slips for 2014 reflected that he did not receive a salary after February of that year. 
4 
(b)(6)
Matter of FE- Inc. 
In denying the petition, the Director pointed to inconsistencies in the Beneficiary's stated employment, 
namely, his employment with three other entities during his claimed full-time employment with the 
foreign entity. 
In its appeal, the Petitioner contends that the Beneficiary's employment with 
and was little more than in title only, asserts that these companies exist only 
for trademark purposes, and emphasizes that the Beneficiary's involvement with the 
he co-owned was on his personal time. In short, the Petitioner claims that his employment and other 
activities outside the foreign entity 
did not interfere or prevent him from completing the required one 
year of full-time employment with 
B. Analysis 
Based on our review of the record and for the reasons discussed below, we find that the Petitioner 
- has not established that the Beneficiary has at least 
one continuous year of full-time employment 
abroad with a qualifying organization during the relevant three-year period. 
The regulation at 8 C.F.R. § 214.2(1)(3)(iii) clearly requires that an individual petition filed on Form 
I-129 be accompanied by evidence 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." The definition of "intracompany transferee" also indicates that, if a beneficiary has been 
employed abroad continuously for one year by a qualifying organization within three years 
preceding the time of the beneficiary's "application for admission into the United States," the 
beneficiary may be eligible for L-1 classification. 8 C.F .R. § 214.2(1)( 1 )(ii)(A). 
When the definition of "intracompany transferee" is construed together with the regulation at 8 
C.F.R. § 214.2(1)(3) and section 101(a)(15)(L) ofthe Act, the phrase "preceding the time of his or 
her application for admission into the United States" refers to a beneficiary whose admission or 
admissions were "for a branch of the same employer or a parent, affiliate, or subsidiary thereof'' or 
for "brief trips to the United States for business or pleasure." 
Therefore, according to the plain purpose of the Act and regulations , U.S. Citizenship and 
Immigration Services (USCIS) will not reach back to the three year period preceding the 
Beneficiary ' s admission as a nonimmigrant in all circumstances. Unless the authorized period of 
stay in the United States is either brief or "for" a qualifying employer, the period of stay will be 
interruptive. See 52 Fed. Reg. 5738, 5742 (Feb. 26, 1987) ("Time Spent in the United States Cannot 
Count Towards Eligibility for L Classification"). 
In the current matter, the Petitioner has not established that the Beneficiary was employed full-time 
with the foreign entity for one year abroad in the three years preceding the filing of the petition. The 
submitted evidence indicates that the Beneficiary has resided in the United States since March 22, 
2014. However , the foreign entity's payroll records reflect that he was last on the payroll and being 
paid under the terms of his employment contract in February 2014. Therefore , the Petitioner must 
'\ 
5 
(b)(6)
Matter of FE- Inc. 
establish that the Beneficiary had at least one year of qualifying foreign employment within the three 
years preceding the date .of filing this petition, which would be between December 18, 2012, and 
February 28, 2014, a period of 437 days. 
USCIS records reflect that the Beneficiary also spent a total of 79 days in the United States during 
this 437-day period.1 We note that periods spent in the United States in lawful status for a branch of 
the same employer or a parent, affiliate, or s~bsidiary thereof and brief trips to the United States for 
business or pleasure shall not be interruptive of the one year of continuous employment abroad, but 
such periods shall not be counted toward fulfillment of that requirement. 8 C.F.R. 
§ 214.2(1)(1 )(ii)(A). As such, the evidence demonstrates that the Beneficiary was employed by the 
foreign entity for only 358 days during the three years preceding the filing of the petition, or less · 
than one year. 
In addition, as observed by the Director, the Petitioner has provided conflicting assertions regarding 
the Beneficiary's former capacity abroad leaving question as to whether he was employed in a full­
time capacity for the required one-year period. For instance, in support of the petition, the Petitioner 
asserted, and submitted a resume reflecting, that the Beneficiary acted as the president of 
and The also Petitioner stated, and the Beneficiary's 
resume indicated, that he acted as the co-owner of from 2009 to 
2014, handling the company's marketing and "cash flow management." The Beneficiary's resume 
highlighted that provided cinema audio processors and other technological 
developments and that completed "over four hundred new system 
installation[ s ]" in China. The Petitioner further noted his success getting 
these new companies "up 
and running" and "his success in the restaurant industry." 
However, the Petitioner appeared to modify the record later in response to the Director's RFE stating 
that the Beneficiary only performed marketing duties of the "on his own personal 
time." Further, the Petitioner explained that he never actually worked for 
and stating that these companies have no actual operations, in contrast to 
previous assertions indicating that these companies had extensive operations, including hundreds of 
system installatio~s by Further, the Petitioner stated that both of these 
entities had been established as non-operating companies in 2010 at the same location as 
How~ver, the Beneficiary stated on his resume that he had worked for (located in 
not beginning in 2008, and for beginning in 2005. 
In sum, these conflicting assertions leave question as to whether the Beneficiary was employed by 
the foreign entity on a full-time basis during the critical period from December 2012 through 
February 2014. In addition, the Petitioner has provided insufficient objective evidence to dispel 
1 USCIS records indicate that the Beneficiary was in the United States during the following periods between December 
2012 and March 2014, when he made his initial entry as an .F-2 nonimmigrant: April 14 to April 30, 2013 (17 days); 
October 2 to October 16, 2013 (15 days); November 19 to December 3, 2013 (15 days); and January 20, 2014, to 
February 20, 2014 (32 days). 
Matter of FE- Inc. 
these discrepancies. For instance, the Petitioner provides internally generated pay stubs and records, 
but no other credible and objective evidence substantiating his employment as an executive with the 
foreign entity for more than one year. Once again, the Petitioner has not resolved these 
inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. at 582, 591-92. A petitioner may not make material changes to a petition in an effort to 
make a deficient petition conform to USCIS requirements. Matter of Izummi, 22 I&N Dec. at 169, 
176. 
Furthermore, we acknowledge the Petitioner's claims that all of the foreign entities that employed 
the Beneficiary were affiliated based on common ownership by him. However, there is insufficient 
documentary evidence to support that claim. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
ofSojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter ofTreasure Craft of Cal., 14 I&N 
Dec. 190 (Reg'l Comm'r 1972)). 
For the reasons discussed above, the Petitioner has not established that the Beneficiary had one year 
of full-time continuous employment with a qualifYing foreign entity in the three years preceding the 
filing ofthe petition. See 8 C.F.R. § 214.2(1)(3)(iii). For this reason, the appeal will be dismissed. 
Ill. EMPLOYMENT ABROAD IN AN EXECUTIVE CAPACITY 
Furthermore, the Director also denied the petition finding that the Petitioner did not establish that the 
foreign entity employed the Beneficiary in a managerial or executive capacity. The Petitioner does 
not claim that the Beneficiary has been employed in a managerial capacity abroad. Therefore, we 
restrict our analysis to whether the Beneficiary has been employed in an executive capacity. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 110l(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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS must take into account the reasonable needs of the organization, in 
(b)(6)
Matter of FE- Inc. 
light ofthe overall purpose and stage of development ofthe organization. See section 101(a)(44)(C) 
of the Act. 
A. Evidence ofthe Record 
We note that certain portions of the evidence of record included in the previous section are also 
relevant, to whether the Beneficiary acted in an executive capacity abroad. As noted, the Petitioner 
stated that the Beneficiary had been employed as president since February 2010 and 
described his role as follows: 
[The Beneficiary] has been working as the President of the Foreign Company 
since February, 2010. He has extensive experience and understands the Foreign 
Company's operations well. [The Beneficiary] is a savvy entrepreneur and has 
established several successful companies in China. In addition to the Foreign 
Compc:my, these include which [the Beneficiary] founded 
in 2008, and which he founded in 2005. In 2009, [the 
Beneficiary] co-founded the theme restaurant m 
China and was responsible for marketing from 2009-2014. 
In a submitted business plan, the Petitioner stated that the Beneficiary is "co-owner of a 5,000SF full 
service in China, where he is responsible for marketing and cash flow 
management." Further, in the business plan, the Petitioner also explained the Beneficiary's activiti((S 
abroad as follows: 
[The Beneficiary] is an accomplished executive with more than 13 years of 
experience in marketing and management. Notably, for the last seven years at 
[the foreign entity], and [the Beneficiary] has functioned in the 
capacity as president, which entailed oversight of marketing, sales, relationship 
building with vendors, financial management, and staff development. Under his 
management, these companies was [sic] successfully converted from a retailer, 
which relied on revenue from random sales, to an [sic] full service platform 
relaying on diversified revenue. [The Beneficiary] was primarily responsible for 
initiating and executing the shift in the full service's business model. 
The Petitioner also provided a letter signed by the foreign entity's general 
manager, describing the Beneficiary's duties as president as follows: 
• Make major business decisions and develop business strategy. Analyze major 
market trends. (15%) 
• Review marketing strategy of Marketing Vice President and suggest 
improvements. ( 1 0%) 
• Examine sales reports of Sales Manager and make suggestions for 
improvement. Assess sales strategy and suggest ways to change it to better fit 
8 
(b)(6)
Matter of FE- Inc. 
the company's overall business strategy. (15%) 
• Responsible for performance management of department managers. Recruit, 
select, train, counsel and discipline each manager. Assign tasks and 
accountabilities to each department. Plan, monitor and apprise job results. 
Develop incentives and develop a productive working environment. Decide 
salaries and benefits of managers and staff. (25%) 
• Manage [the foreign entity's] finances. Develop major financial and 
budgetary goals for the company. Review financial reports and documents 
produced by Bookkeeper and tax documents. ( 15%) 
• Assess strength of company's product line and instruct Product Manager on 
major goals for program improvement and new product development. (20%) 
The Petitioner submitted the foreign entity's organizational chart reflecting that the Beneficiary 
oversees a "VP Marketing," a general manager, and a bookkeeper. The chart indicated that the 
general manager supervises a product manager, a sales manager, and a project manager, and that 
each of these aforementioned managers oversees "position staff." The Petitioner provided an 
accompanying list of foreign entity employees revealing that the company also employs an HR 
assistant, a project engineer, a product engineer, an engineer, and a sales employee. 
As specified in the previous section, the Petitioner stated in response to the Director's RFE that the 
Beneficiary had 
been in the United States since March 22, 2014, and had not received a salary from 
the foreign entity since this time. The Petitioner further asserted that the Beneficiary's employment 
with and was in name only, as these companies 
were non-operating holding companies and that he was no longer a co-owner of the 
The Petitioner also stated in the letter that the Beneficiary was "fully responsible for management of 
the Foreign Entity," that he "defines [the foreign entity's] long-term strategic goals, identifies 
business opportunities, and hires trains and fires units' managers." The Petitioner provided 
payroll listing dating from 2011 through 2014 reflecting payments to the 12 employees 
identified on the previou~ly submitted employee list. 
The Petitioner resubmitted the foreign entity' s Qrganizational chart and included job descriptions for 
three of the Beneficiary' s subordinates. The chart reflected that the "VP Marketing" was responsible 
for developing an annual marketing plan, handling marketing communications, and overseeing 
marketing research. The chart further _indicated that the general manager was tasked with 
"overseeing all administrative functions of the company" and that the bookkeeper was responsible 
for "defining bookkeeping policies and procedures." 
The Petitioner provided the same duty description for the Beneficiary submitted in support of the 
petition. However, the Petitioner added a daily schedule indicating that the Beneficiary's duties 
including assigning tasks and accountabilities to department managers, meeting with managers to 
discuss tasks to be accomplished, calling or texting important customers, suppliers and contacts, 
9 
(b)(6)
Matter of FE- Inc. 
reviewing the company's marketing strategy and industry trends, and instructing the "Product Manager" 
on product development and improvement goals. 
The Petitioner submitted an employment contract executed between the Beneficiary and the foreign 
entity dated February 8, 2010, which lists him as president. Finally, the Petitioner provided copies of 
various text messages, meeting minutes, and employee reviews performed by the Beneficiary. 
In denying the petition, the Director found that the duties provided for the Beneficiary's asserted 
subordinates were vague and unclear. The Director pointed to evidence reflecting that the Beneficiary 
was employed by three separate entities sharing the same location in China. Further, the Director 
concluded that the Petitioner had not demonstrated that the foreign entity had a level of organizational 
complexity necessary to allow the Beneficiary to act in a managerial or executive capacity. 
In its appeal, the Petitioner asserts that the Beneficiary's employment with three separate entities in 
China did not impact his qualifying full-time executive employment with the foreign entity, noting that 
two of these entities, and do not have day-to-day operations or employees, but rather 
exist for trademark purposes only. The Petitioner contends that it has submitted "ample evidence" 
documenting the Beneficiary's executive role and asserts that the Director overemphasized the size of 
the foreign entity by referencing its lack of"organizational complexity." 
The Petitioner also submits additional evidence on appeal. The Petitioner provides a "Trademark 
Registration Certificate" for microphone devices trademarked by the foreign entity as on 
July 7, 2011. The Petitioner submits an organizational chart reflecting duties and education levels for 
each of the foreign entity's employees. For instance, the chart specifies that the product manager is 
responsible for "structured product testing processes and tools," that the sales manager is tasked with 
determining annual unit and gross-profit plans, establishing sales objectives, and implementing national 
sales programs, and that the project manager is tasked with "all kind[s] of project management," 
including defining scope, activity planning and sequencing, and developing schedules. In addition, the 
chart reflects that the product engineer is responsible for "product testing," working "with the product 
manager to resolve issues," that the sales assistant is tasked with selling and contacting customers. 
The Petitioner submits an additional description of the Beneficiary's former duties abroad, stating that 
he was tasked with establishing "organization of major departments," delegating responsibilities to 
managers, meeting with managers and staff "to determine areas of potential cost reduction," discussing 
issues, coordinating activities, and resolving problems with staff, implementing corrective actions, 
giving final approval to "contracts or agreements with suppliers, distributors, and customers," 
instructing managers "on major goals for product improvement and new product development," 
developing "major financial and budgetary goals for the company," directing "the implementation of 
company policies and operations," and making "major business deyisions and develop[ing] business 
strategy." 
10 
Matter of FE- Inc. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary was employed in 
an executive capacity abroad. 
When examining the managerial or executive capacity of the Beneficiary, we 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 performed by the Beneficiary and indicate whether 
such duties are in either a managerial or executive capacity. !d. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary performed 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 has been primarily engaged iri managerial or executive duties, as opposed to 
ordinary operational activities alongside the forei:gn entity's other employees. See Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner has provided vague duty descriptions which do not convey in detail the Beneficiary's 
actual day-to-day tasks abroad. For instance, the Petitioner submitted various vague duties that 
could be applicable to any executive acting in any industry, such as him being tasked to "make major 
business decisions and develop business strategy," "review marketing strategy," "examine sales 
reports of Sales Manager and make suggestions for improvement," "develop incentives," "manage 
[the foreign entity's] finances," "instruct [the] Product Manager on major goals for product 
improvement and new product development," "decide tasks and accountabilities to assign to 
department managers," "make phone calls or text with important customers, suppliers and contacts," 
"retain final approval over contracts or agreements with suppliers, distributors, and customers," 
amongst other vague dutit;s. 
In each case, the Petitioner does not specifically articulate or document major business decisions the 
Beneficiary made, business or marketing strategies he developed, improvements in sales he 
implemented, incentives he developed, financial decisions he handled, product improvement or 
development decisions he made, tasks or projects he assigned to subordinate managers, customers or 
suppliers he regularly communicated with, or contracts he approved. It is reasonable to expect that 
the Petitioner would provide some level of detail regarding the Beneficiary's actual day-to-day 
activities abroad, particularly since it asserts that he had been working in this capacity since 2010. 
Reciting a beneficiary's vague job responsibilities or broadly cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
Conclusory assertions regarding a beneficiary's employment capacity are not sufficient. 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). 
II 
Matter of FE- Inc. 
In fact, to the extent the Petitioner provides supporting evidence meant to demonstrate the 
Beneficiary's performance of executive level duties, such as copies of meeting minutes and text 
messages from the Beneficiary to his subordinates, this evidence does not support that he has been 
primarily engaged in qualifying executive duties. The submitted meeting minutes for example, did 
not include specifics regarding the foreign entity's actual business activities, products, or the 
executive decisions made by the Beneficiary. In addition, the Petitioner submitted a record of text 
messages the Beneficiary sent while remotely overseeing the foreign entity from the United States in 
2015. Although this evidence is not directly relevant to his qualifying period of foreign 
employment, it is indicative of the nature of the duties he may have performed abroad, since the 
Petitioner asserts that he continued in his capacity as the foreign entity's president on a non-salaried 
basis when he came to the United States in March 2014. The texts reflected the Beneficiary's 
involvement in many day-to-day operational tasks, such as providing invoices to customers, deciding 
on company gifts to employees and employee leave issues, duties more reflective of a first line 
supervisor rather than an executive primarily setting goals and policies for the organization. 
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 Petitioner contends that it has submitted "ample evidence" to establish that the Beneficiary was 
employed abroad in an executive capacity. The statutory definition of the term "executive capacity" 
focuses on a person's elevated position within a complex organizational hierarchy, including major 
components or functions of the organization, and 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 organization rather than. the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an owner or sole managerial employee. 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 ofthe organization." Jd. 
Here, the Petitioner has not established that the Beneficiary has been employed in an executive 
capacity. As discussed previously, the Petitioner has submitted vague duty descriptions for the 
Beneficiary which do not convey his actual day-to-day executive tasks. The Petitioner does not 
articulate or document the management decisions the Beneficiary made or the goals and policies he 
established while employed with the foreign entity over the last five plus years. In fact, as noted, the 
Petitioner provides supporting evidence that does not credibly establish his performance of executive 
12 
Matter of FE- Inc. 
level tasks, including vague meeting minutes making no actual reference to the company's industry 
or business activities and text messages indicating his involvement in day-to-day non-qualifying 
tasks. Furthermore, the Petitioner provided conflicting statements with respect to the Beneficiary's 
employment with three other entities during his claimed full-time employment with the foreign 
entity. Otherwise, the Petitioner does not provide sufficient evidence to corroborate that the 
Beneficiary primarily performed qualifying executive tasks while employed abroad. For instance, as 
mentioned previously, the Petitioner has not provided credible documentation to substantiate the 
Beneficiary's performance of executive level duties prior to his entry into the United States in 2015. 
Beyond this, the Petitioner has only submitted internally generated payroll summaries and slips 
which are not sufficient to demonstrate that he acted primarily in an executive capacity. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings. Matter ofSojjici, 22 I&N Dec. at 158, 165 (Comm'r 1998). 
Moreover, the Petitioner has submitted vague duty descriptions for the Beneficiary's claimed 
subordinates abroad. For instance, ~it is noteworthy that none of the duty descriptions for the 
Beneficiary's subordinates mention the company's industry or actual duties they performed on a 
daily basis, nor has the Petitioner provided supporting evidence to substantiate that they act in their 
asserted roles. The Petitioner provided a foreign entity meeting agenda reflecting the general 
manager instructed employees to "check your watch to ensure your work must be done on time," 
"put a lot more emphasis on your work," and study "industry and products" if there are no specific 
projects. We did not find this evidence probative as the general manager's statements could apply to 
any company in operating in any industry. These vague statements regarding the general manager 
are illustrative of the duty descriptions provided for each member of the foreign entity's 
organizational chart. This lack of specificity leaves question as to whether the Beneficiary's 
subordinates are acting in their claimed capacities. Therefore, although the Petitioner has provided 
internally generated payroll documents indicating that the foreign entity has been paying 12 
employees, it has not provided sufficient evidence to show how work, particularly operational and 
administrative tasks, associated with the business were allocated among the staff. 
In its appeal, the Petitioner contends that the Director overemphasized the size of the foreign entity 
by referring to the company's lack of "organizational complexity." First, we note that the statutory 
definition of the term executive capacity directly stated that it "focuses on a person's elevated 
position within a complex organization~! hierarchy." Section 101(a)(44)(B) of the Act. As such, we 
do not find that the Director's use of this terminology alone is sufficient to demonstrate an 
overemphasis by the Director on the size of the foreign entity. Indeed, the Director did not reference 
the size of the foreign entity in her decision, but rather emphasized the vague nature of the submitted 
duty descriptions and conflicting evidence regarding the Beneficiary's employment with multiple 
foreign entities. 
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. · 
13 
Matter of FE- Inc. 
IV. CONCLUSION 
r 
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 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 FE- Inc., ID# 12557 (AAO Oct. 19, 2016) 
14