dismissed L-1A Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Y-&P-, INC. 
APPEAL OF VERMONT SER VICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 9, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a convenience store, seeks to temporarily employ the Beneficiary as the general manager 
of its new office 1 under the L-lA nonimmigrant classification for intracompany transferees. Immigration 
and Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § l 10l(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 a managerial or executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) sufficient premises for the U.S. entity's new office have been secured; 
(2) the new office will support a managerial or executive position within one year after the approval of 
the petition; and (3) the Beneficiary has been employed abroad in a managerial or executive capacity. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that: (1) the Director did not 
review the lease provided for its premises; (2) its foreign entity has the capacity to support the new 
office; and (3) the Beneficiary serves abroad as a function manager. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition, the beneficiary must seek 
to enter the United States temporarily to continue rendering his or her services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
A petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no more than 
one year within the date of approval of the petition to support an executive or managerial position. 
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Matter of Y-&P-, Inc. 
secured sufficient physical premises to house its operation and disclose the proposed nature and scope 
of the entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
11. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 
(9th Cir. 2006); Champion World, 940 F.2d 1533. 
III. SUFFICIENT PHYSICAL PREMISES 
The Director determined that the Petitioner has not established that sufficient premises for the U.S. 
entity's new office have been secured. When a petition indicates that a beneficiary is coming to the 
United States to open a "new office," the petitioner must show that it is ready to commence doing 
business immediately upon approval. At the time of filing the petition to open a "new office," a 
petitioner must demonstrate that it has acquired sufficient physical premises to commence business. 
See 8 C.F.R. § 214.2(1)(3)(v). 
On the petition, the Petitioner described itself as a convenience store. The Petitioner's business plan 
submitted with the petition states that it will "become a newly established convenience store and gas 
station;" that it will offer "gas, organic produce, and a deli;" and that the business plan will serve as 
"a guide for this renovation of this business." It states that one of the Petitioner's 
shareholders, "will purchase the equipment or fixtures, or properties for this new location." It further 
states that the Petitioner will sell "gasoline and diesel fuel; oil, de-icer, car accessories, etc.; deli items; 
drinks; bakery goods; organic produce." With the petition, the Petitioner also submitted a Commercial 
Lease Agreement dated October 1, 2017, between the lessor, the Beneficiary , and the Petitioner for a 
3,000 square foot building in Texas. The lease carries a three-year term, with an additional 
optional three-year renewal term, at a rate of $31,800 per year for the first three years, and $35,000 
per year for any renewal term. 2 The lease is missing Exhibit A, which details the "initial rules for the 
2 The business plan contains a proforma profit and loss statement that lists the rent expense as $13,000 per year for the 
first three years. The Petitioner must resolve this discrepancy with independent , objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591 -92 (BIA 1988). 
2 
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Matter of Y-&P-, Inc. 
building." The lease does not include a floor plan or a description of the activities to be conducted by 
the Petitioner on the premises, and it does not provide for the lease or operation of gas pumps. 
In a letter of support dated October 2, 2017, submitted with the petition, the human resources manager 
for in India stated that the company planned to set up a "U.S. branch" to establish a 
"wholesale distribution center where we can export our line of watches into the U.S. market." 3 The 
letter states that the Beneficiary has been offered the position of general manager to develop 
"relationships with large wholesalers and retail businesses in the U.S. to book large orders." 
Thus, the documents submitted with the petition presented conflicting descriptions of the Petitioner's 
business - it is described as a convenience store, a convenience store/gas station, and a wholesale 
watch distribution center. The Petitioner must resolve this discrepancy with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 582. Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Id In a request for evidence (RFE), the Director 
stated the lease does not provide sufficient detail of the breakdown of the square footage, including all 
office, production, manufacturing, and warehouse spaces, and requested the Petitioner to provide 
additional evidence relating to its premises. 
In response to the RFE, the Petitioner submitted another copy of the lease without Exhibit A It stated 
that the lease was for a retail convenience store and gas station, and it submitted pictures of 
whose sign indicates that it sells ice, beer, cigarettes, sodas and chips, groceries, cell 
phone cards and accessories, phone cards, money orders, money transfers, bill payments, and lottery 
tickets. The pictures also show the inside of a convenience store, with prepackaged food items; cold 
drinks; freezers; t-shirts and hats; lottery machines; and cigarettes. The pictures do not show a deli, 
organic produce, or gas pumps. They also do not show a wholesale distribution center for watches 
imported from India. The RFE response included an assumed name certificate showing that the 
Petitioner is authorized to conduct business in Texas under the assumed name The Petitioner 
also stated in its RFE response that the "foreign entity has established low contracted rates from their 
vendors, and shipments can be directed to the U.S. location which will help the store maintain a large 
inventory with far less cost overhead." 
In her decision, the Director noted that the Petitioner did not provide any evidence of the renovations 
mentioned in its business plan, and that it did not provide sufficient detail of the breakdown of the 
square footage. She also noted that the retail store does not include the Petitioner's "name, 
logo, signage, address, or any indication of where these photographs were taken." 
On appeal, the Petitioner asserts that the Director did not review the lease provided for its premises. 
It states that the lease shows that the premises is 3,000 square feet; that it operates a convenience store; 
that there is no production, manufacturing, or warehouse space needed; and that there is a 600 square 
foot stockroom for dry goods and surplus inventory. The Petitioner further asserts that it purchased 
the location and renovated the store; that it assumed the name and that it uses the 
acronym as an abbreviation to identify the business . The Petitioner references four new exhibits 
3 The record shows that 
individuals. 
and the Petitioner are each owned in the same percentages by the same two 
3 
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Matter of Y-&P-, Inc. 
that were purportedly included on appeal, including a copy of the floor plan for the premises; an 
affidavit; and copy of a webpage listing. However, none of these exhibits were submitted on appeal. 
A petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden of proof The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The Petitioner has not established with relevant, probative, and credible evidence that it has secured 
sufficient premises for its new office. While the Petitioner has established that it has leased 3,000 square 
feet of space in Texas, it has not established what type of business will be conducted there. The 
Petitioner asserts that it purchased and assumed its name, but the record does not contain a 
purchase agreement; a bill of sale; an inventory list; an assumed name certificate permitting the Petitioner 
to operate as ' evidence of payment of the purchase price for the business; business license; or 
any other evidence supporting the Petitioner's claim. Further, the record contains no evidence to support 
the Petitioner's claim that there is a 600 square foot stockroom for dry goods and surplus inventory. 
Additionally, the record contains no evidence supporting the Petitioner's claims that it renovated the 
premises or that it operates gas pumps at its location. There is also no evidence showing that the 
Petitioner operates a deli or sells organic produce at the leased location. Without a clear idea of what 
the Petitioner is doing on a daily basis, we cannot determine whether it has secured sufficient premises 
for its new office. 
The Petitioner has not established that sufficient premises for the U.S. entity's new office have been 
secured. 
IV. THE PETITIONER'S ABILITY TO SUPPORT A MANAGERIAL POSITION 
The Director found that the new office will not support a managerial or executive position within one 
year after the approval of the petition. The Petitioner seeks to employ the Beneficiary as a general 
manager in the United States, asserting that this qualifies as a position of managerial capacity. Thus, 
we will restrict our analysis to whether the Beneficiary would be employed in a managerial position 
within one year of approval. A petitioner seeking to employ a beneficiary as a manager of a new office 
must establish that the new office will support a managerial position within one year of approval of 
the petition. The Petitioner must establish the proposed nature of the office, describing its scope, 
organizational structure, and financial goals; the size of the United States investment and the foreign 
entity's financial ability to remunerate the beneficiary and to commence doing business in the United 
States; and the foreign entity's organizational structure. 8 C.F.R. § 214.2(1)(3)(v)(C). 
When a new business is first established and commences operations , the regulations recognize that a 
designated manager responsible for setting up operations will be engaged in a variety of low-level 
activities not normally performed by employees at the managerial level and that often the full range 
of managerial responsibility cannot be performed in that first year. The "new office" regulations allow 
a newly established petitioner one year to develop to a point that it can support the employment of a 
beneficiary in a primarily managerial or executive position. The petitioner ' s description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such 
duties are in a managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
4 
Matter of Y-&P-, Inc. 
A Duties 
With the petition, the Petitioner listed the duties of general manager as follows: 
I 00% of time is spent: 
• Maintains adherence to and establishes operational procedures and oversee the functioning of 
all areas including: incoming and outgoing shipments, damages and returns, merchandise 
processing, inventory control, and quality control and assurance. 
10% of time is spent: 
• Reviews assistant manager's weekly productivity reports and discusses productivity concerns. 
Ensures that procedures meet productivity standards and are in compliance with company 
policies and procedures. 
• Reviews scheduling and assists in determination of temporary staffing needs based on review 
of inbound merchandise volume, daily workload, priorities and available staff 
10% of time is spent: 
• Oversees the resolution of problems that occur within the store i.e. flow, space capacity issues, 
systems problems, etc. Manages the inspection, maintenance, and repair of store equipment. 
Approves work orders for repairs and requisitions for replacement of equipment. 
20% of time is spent: 
• Trains assistant managers to maintain accuracy goals, productivity, safety and budget 
requirements. Ensures compliance of all safety standards, policies and procedures. 
40% of time is spent: 
• Oversees assistant managers carry out supervisory responsibilities including trammg, 
planning, assigning, directing work, performance appraisals, rewarding, disciplining, 
addressing complaints and resolving issues. 
• Observes current processes and obtains information from employees in order to evaluate 
business requirements. Provides recommendations, obtains approval, and implements changes 
based on this evaluation. 
• Maintains adherence to operational procedures for activities such as verification of incoming 
and outgoing shipments, processing merchandise, inventory control, quality control and 
quality assurance. 4 
20% of time is spent: 
• Purchases all store supplies, works with suppliers to insure best possible pricing, schedules 
inbound supply trailer flow for to [sic] optimize space without interrupting processing. 
• Projects fiscal expenses and prepares annual budget and submits to President for approval. 
Manages expenses based on approved budget. 
4 We note that this appears nearly the same as the first entry describing how the Beneficiary spends 100% of her time. 
5 
Matter of Y-&P-, Inc. 
In response to the RFE, the Petitioner materially changed the duties of the Beneficiary, as follows: 
50% of her time is spent being responsible for sales and marketing, branding, and establishing 
budgets; 5 10% of her time is spent attending trade shows, meeting with vendors, buyers and 
establishing new markets to develop and grow the business; 6 20% of her time is spent handling human 
resources and training functions; and 20% of her time is spent being responsible for inventory control 
and loss prevention, establishing incentive rewards for employees, and training store managers. The 
purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F .R. § 103.2(b )(8). When responding to an RFE, a petitioner cannot 
offer a new position to a beneficiary, or materially change a position's title, its level of authority within 
the organizational hierarchy, or its associated job responsibilities. A petitioner must establish that the 
position offered to a beneficiary, when the petition was filed, merits classification as a managerial or 
executive position. See Matter of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). 
If significant changes are made to the initial request for approval, a petitioner must file a new petition 
rather than seek approval of a petition that is not supported by the facts in the record. The information 
provided by the Petitioner in its response to the Director's RFE added new generic duties to the job 
description. 
In the denial notice, the Director concluded that the Beneficiary's duties will primarily consist of the 
day-to-day marketing and sales operations of the new office. On appeal, the Petitioner does not 
address the deficiencies in the Beneficiary's duties. 
We find that the Petitioner provided deficient job descriptions that are so general that they could 
describe virtually any general manager position with any company. They provide only vague 
information that focus on the Beneficiary's oversight of the business, but say little about the actual 
tasks she would perform during the various stages of the company's development and make no 
distinction between tasks that the Beneficiary would need to perform during the Petitioner's 
rudimentary phase and those she intends to perform once the company is no longer in the "new office" 
stage of development. 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 ofreiterating 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). Although it is reasonable to conclude that the Beneficiary's 
duties would change to correspond with the Petitioner's operational development and changing needs, 
the Petitioner did not provide a job description that reflects this likely progression. Without a detailed 
iteration of the Beneficiary's job duties during the Petitioner's first year of operation, it is unclear how 
the Petitioner would progress beyond the "new office" phase. Further, the conflicting descriptions of 
the Petitioner's business described above (i.e., a convenience store, a convenience store/gas station, 
and a wholesale watch distribution center), together with the general nature of the duties, create 
confusion as to how the Beneficiary will actually spend her time. 
Further, the Beneficiary does not appear to be the Petitioner's senior employee because its 
organizational chart lists the President at the top. Without details regarding the President's duties, it 
5 The original description did not include any marketing or branding duties, and the business plan indicates that the 
Petitioner does not plan to spend any funds on marketing expenses in its first three years of operation. 
6 The original description did not mention attendance at trade shows. 
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Matter of Y-&P-, Inc. 
is not clear that the Beneficiary would have authority to establish plans, policies, and objectives for 
the company and make major decisions regarding its finances and overall direction. 7 By statute, 
eligibility for this classification requires that the duties of a position be "primarily" executive or 
managerial in nature. Sections 10l(A)(44)(A) and (B) of the Act. Therefore, a broad overview of her 
responsibilities is insufficient to establish that her actual duties during the Petitioner's first year of 
operation would lead to primarily managerial or executive duties within one year of this petition's 
approval. 
B. Projected Staffing and Business Plan 
When examining the managerial capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). However, the position description alone 
is insufficient to establish that a beneficiary's duties would be primarily in a managerial or executive 
capacity, particularly in the case of a new office petition where much is dependent on factors such as 
a petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
a beneficiary in the proposed position. If staffing levels are used as a factor in determining whether 
an individual will be acting in a managerial or executive capacity, U.S. Citizenship and Immigration 
Services (USCIS) takes into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act. 
The Petitioner's organizational chart shows that the President will supervise the Beneficiary; that the 
Beneficiary will supervise "Assistant Mgr(s), Day & Night, New Hires," who in tum will supervise 
"Retail Cashiers (4) New Hires." The business plan indicates that the Petitioner will have a "staff of 
six," including the Beneficiary as general manager; one assistant manager; and four sales clerks. It 
did not mention the President or an additional assistant manager. The Petitioner provided job 
descriptions for the general manager, assistant manager(s), and retail staff, but did not provide a job 
description for the President. 
The Petitioner's business plan indicates that the Petitioner will offer gas, organic produce, and a deli 
to commuters in the and areas of Texas. It states that 
has invested $50,000 in the purchase of the business, plus the inventory (wholesale­
cost) under purchase contract." It states that he will purchase equipment, fixtures or properties for the 
location. It further states that has invested $40,000 to finance the remainder of the 
renovation costs. It states that "eighty percent of 1-69 commuters fits the demographic profile of 
customers of upscale organic/natural food stores" including that they are 25-45 years of age; 60% 
percent are women; their average income is $40,000+; they are college graduates; and they are 
professionals in business and education. 8 
7 The Petitioner initially provided a Partnership Agreement dated October 1, 2017. It states that the Petitioner is a 
partnership under the Partnership Act of Ontario, Canada. In response to the RFE, however , it submitted Bylaws indicating 
that it is a corporation. The Bylaws do not provide for a President. Instead, under the heading of "Chairman," they state 
that the Directors shall have "supervision of the affairs of the corporation." 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. 
8 The record contains no support for these assertions. If USCIS finds reason to believe that an assertion stated in the 
petition is not true, USCIS may reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § l 154(b); Anetekhai 
v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); 
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Matter of Y-&P-, Inc. 
It projects the following sales 9 in the first three years of operation: 
Gasoline 
Food, Drinks, produce 
Total Sales 
Year I 
$623,000 
$185,000 
$808,000 
Year 2 
$660,000 
$198,000 
$858,000 
Year 3 
$700,000 
$210,000 
$910,000 
The Director stated in the RFE that the Petitioner's description 
of its business and its projections were 
overly broad and lacked sufficient detail to determine how it will support a managerial or executive 
position within one year. The Director also noted that the record lacked evidence of the initial 
investments in the new office. 
In response to the RFE, the Petitioner provided general a definition of industry analysis, together with 
two online articles related to retail marketing strategy and emerging trends in the convenience store 
industry. It also stated that "the foreign entity's earnings are more than sufficient enough to support 
the U.S. entity in the first year of business." 
In the denial notice, the Director concluded that the record contains no evidence of the foreign entity's 
investment in the Petitioner, or of the individual shareholders' investment in the Petitioner. 10 She 
stated that the online articles provided by the Petitioner in response to the RFE provide no information 
as to the size and scope of the new office. She indicated that the business plan is vague and lacks 
sufficient detail to determine the size and scope of the new office. Further, she noted that the income 
and other projections in the business plan do not provide sufficient detail as to how they were 
calculated. She stated that the organizational chart for the Petitioner shows that the Beneficiary has 
two direct subordinates, but does not describe the nature of the positions and how they will support 
the Beneficiary's role as manager of the new office within one year. 
On appeal, the Petitioner asserts that has "the financial ability to invest and support 
the [Petitioner]." The Petitioner provides no additional support for that claim. The Petitioner's 
unsupported statements are insufficient to carry its burden of proof The Petitioner has not supported 
its assertions on appeal with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. 369, 376 (AAO 2010). The Petitioner does not address the other deficiencies noted by the 
Director. Further, the Petitioner asserts that it has provided audited financial statements on appeal; 
however, audited financial statements were not included with the appeal. 
We agree with the Director that the Petitioner's business plan, including its description of its mission 
and its "keys for success," is vague and lacks sufficient detail to determine the size and scope of the 
new office. The Petitioner 's conflicting descriptions of the nature of its business in the record 
Systronics Corp . v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
9 The business plan indicates that the Petitioner expects to receive all of these funds in cash, and there are no provisions in 
its projections for the collection or payment of sales tax, VAT, or any other taxes. We note that Texas has a sales tax, and 
there are excise taxes on fuel, tobacco , and alcohol. See id. 
1° Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b)(14). 
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Matter of Y-&P-, Inc. 
exacerbates the difficulty of determining the size and scope of its new office. We also agree with the 
Director that the income and other projections in the business plan do not provide sufficient detail as 
to how they were calculated. The Petitioner's sales projections are not credible, given that the majority 
of sales revenue is attributed to gas sales and the record contains no evidence showing that it operates 
gas pumps at its location. Additionally, some of the sales revenue is attributed to produce sales, and 
there is no evidence showing that the Petitioner sells produce at the leased location. Further, we agree 
that the organizational chart for the Petitioner does not describe the nature of the positions of the 
Beneficiary's direct subordinates and how they will support the Beneficiary's role as manager of the 
new office within one year. Further, the chart and the business plan give conflicting descriptions of 
the Petitioner's staffing which have not been resolved with independent, objective evidence. Matter 
of Ho, 19 I&N Dec. at 582. 
A petitioner has the burden to establish that it would realistically develop to the point where it would 
require the beneficiary to perform duties that are primarily managerial or executive in nature within 
one year. Accordingly, the totality of the evidence must be considered in analyzing whether the 
proposed duties are plausible considering a petitioner's anticipated staffing levels and stage of 
development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). Here, the Beneficiary's job 
duty breakdown does not provide a meaningful understanding of how the Beneficiary will spend his 
time, and as such, we cannot find that he would primarily engage in qualifying managerial duties 
within one year of approval. Furthermore, the Petitioner's staffing and organizational structure is not 
sufficient to support a finding that the Beneficiary will be relieved from having to allocate his time 
primarily to performing non-managerial job duties beyond the first year of operation. Thus, the 
Petitioner has not established that the new office will support a managerial position within one year 
after approval of the petition. 
V. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Director further found that the Petitioner did not establish that the Beneficiary has been employed 
abroad in a managerial or executive capacity. The Petitioner claims that the Beneficiary has served as 
a corporate accountant for in India since 2013 and asserts that this position was a 
managerial position. As such, we will restrict our analysis to whether the position abroad was in a 
qualifying managerial capacity. The Petitioner listed the duties of the position as follows: 
• 40% of time is spent: Analyzing Accounting records 
• 25% of time is spent: Computing Taxes 
• 10% of time is spent: Developing Budgets 
• 25% of time is spent: Meeting with the Director of Finance and Administration 
The Petitioner stated that the Beneficiary generates accounts receivable and accounts payable reports; 
prepares income statements and balance sheets; computes taxes; determines what expenses need to be 
cut; prepares budget reports; and assists in presenting the financial position of the company. 
The organizational chart for shows that the foreign entity has 12 employees. The 
director of finance and administration oversees the Beneficiary and the human resources director. 
Neither the Beneficiary nor the human resources director has any subordinates. The sales director 
9 
Matter of Y-&P-, Inc. 
manages a retail manager; a wholesale manager; and an internet salesperson. The retail sales manager 
oversees two retail salespeople, one of which oversees three cashiers. 
In the RFE, the Director stated that the job description details the day-to-day work of a bookkeeping/ 
accounting nature and that the duties are not supported by sufficient corroborating evidence. In its 
RFE response, the Petitioner stated that the Beneficiary's duties abroad were managerial because she 
primarily managed a function. The Director denied the petition, concluding that the description of the 
Beneficiary's duties are broad and lack sufficient detail necessary to determine if the Beneficiary's 
duties were executive or managerial in nature. Further, the Director noted that the descriptions are not 
supported with sufficient corroborating evidence of the Beneficiary performing duties in an executive 
or managerial capacity. The Director also stated that the job description details the day-to-day work 
of an accounting nature and does not establish that the duties were executive or managerial duties. 
On appeal, the Petitioner does not rebut the Director's finding by presenting additional details about 
the Beneficiary's duties. Instead, the Petitioner again asserts that the Beneficiary serves abroad as a 
function manager. The statutory definition of "managerial capacity" allows for both "personnel 
managers" and "function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. The term 
"function manager" applies generally when a beneficiary is primarily responsible for managing an 
"essential function" within the organization. See section 10l(a)(44)(A)(ii) of the Act. If a petitioner 
claims that a beneficiary will manage an essential function, it must clearly describe the duties to be 
performed in managing the essential function. In addition, the petitioner must demonstrate that: 
(1) the function is a clearly defined activity; (2) the function is "essential," i.e., core to 
the organization; (3) the beneficiary will primarily manage, as opposed to perform, the 
function; ( 4) the beneficiary will act at a senior level within the organizational hierarchy 
or with respect to the function managed; and (5) the beneficiary will exercise discretion 
over the function's day-to-day operations. 
Matter of G-Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
The list of job duties is deficient for three reasons. First, although the accounting function may be 
deemed essential to the organization, the record shows that the Beneficiary primarily performs rather 
than manages the accounting duties of the organization. The Beneficiary reports to the director of 
finance and administration, who appears to manage the accounting function. The Beneficiary 
performs general accounting duties such as generating accounts receivable and payable reports; 
preparing income statements and balance sheets; computing taxes; and preparing budget reports. 
Second, the Beneficiary oversees no employees and does not act at a senior level within the 
organizational hierarchy or with respect to the accounting function. Third, the Beneficiary does not 
exercise discretion over the day-to-day accounting operations, as her financial and budget reports must 
be reviewed and approved by the director of finance and administration. 
On appeal, the Petitioner cites several non-precedent AAO decisions in support of its claim that the 
Beneficiary serves as a function manager. While 8 C.F.R. § 103.3(c) provides that our precedent 
decisions are binding on USCIS, non-precedent decisions are not similarly binding. For the reasons 
set forth above, the Petitioner has not established that the Beneficiary serves as a function manager. 
10 
.Matter of Y-&P-, Inc. 
Furthermore, we note that the record contains wage reports for representing details 
of salaries, wages, and tips paid in 2013-2014 and 2014-2015. The reports list one accountant 
employed by the company, and shows that he was appointed as accountant on May 2, 
2003. The Beneficiary's name is not listed on either of the wage reports. Therefore, it does not appear 
that the Beneficiary was employed as a corporate accountant by starting in 2013 as 
claimed by the Petitioner. The Beneficiary's name is listed on 's monthly wage reports 
for 2017, where it appears the Petitioner simply removed name and replaced it with the 
Beneficiary's name. The date of her appointment as accountant is the same as the date previously 
listed for - May 2, 2003. As such, the record does not demonstrate that the Beneficiary 
was actually employed abroad during the claimed time period or that she was employed in the position 
described. The Petitioner must resolve this discrepancy with independent, objective evidence pointing 
to where the truth lies. Matter of Ho, 19 I&N Dec. at 582. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary has been employed 
abroad in a managerial or executive capacity. 
VI. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofY-&P-, Inc., ID# 2461277 (AAO Apr. 9, 2019) 
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