dismissed L-1A Case: Retail Investment

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PUBLIC COPY 
DATE: DEC.! 6 2011 Office: VERMONT SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Irrnnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.c. § 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's employment as a 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1l01(a)(15)(L). The petitioner, a Georgia corporation, states that it operates a 
business that invests in retail convenience stores and is currently operating a grocery store. It claims to be an 
affiliate of_ located in Hyderabad, India. The petitioner has employed the beneficiary in L-IA 
status since January 2008 and now seeks to extend his status so that he may continue to serve in the position 
of president. 
The director denied the petIt lOn, concluding that the pettttoner failed to establish that it has sufficient 
executive/managerial work to be performed to require the services of a full-time president/chief executive 
officer. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the 
beneficiary's position is executive in nature. Counsel submits a brief and additional evidence in support of the 
appeal. 
I. The Law 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying 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. 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. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (1)(1 )(ii)(G) 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 
www.uscis.gov 
Page 3 
education, trammg, and employment qualifies himlher 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)(14)(ii) also provides that a visa petition, which involved the opening ofa 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (1)(1 )(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined m 
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. 
Section 101(a)(44)(A) of the 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: 
Page 4 
(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. 
II. The Issue on Appeal 
The sole issue addressed by the director is whether the petitioner established that it has sufficient 
executive/managerial work to be performed to require the services of a full-time president/chief executive 
officer. 
Facts and Procedural History 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on January 27, 2009. The 
petitioner indicated on the Form 1-129 that it operates a business that invests in retail convenience stores 
without indicating the number of current employees and a gross annual income of $2,273,340. The petitioner 
submitted a letter of support stating that the beneficiary performs the following duties: 
[The beneficiary] has been serving our company as proprietor and General Manager since 
August 2002. [The beneficiary] is in charge of all administrative operations and management 
of the company. He has assumed overall responsibility of purchasing the goods, expanding 
the company's product lines and distribution channels. He enters into contracts on behalf of 
the company's advantage. He enters into contracts with suppliers and wholesalers as well as 
with banks. He supervises sales personnel, establishes new business contracts, negotiates 
with corporate clients and purchasers, and administers new and existing business contracts. 
requirements [sic], delivery schedules, and estimation of costs of materials and production as 
well as ensuring completeness and accuracy, prepares bids, tests and prepares progress 
reports, reviewes [sic] bids for conformity to contract requirements, plans and directs sales 
programs to promote new markets, and improve fast and efficient customer service. He also 
has exclusive authority of hiring, firing and promoting employees. 
. .. His duties include supervision of all financial and marketing operations for the company, 
as well as entering in contracts, over which he will exercise complete discretionary authority. 
He is in charge of training marketing representatives to procure orders and improve their 
performance. Negotiate contracts with banks and clients; requests and approves amendments 
and or extensions to contracts. He is also responsible to direct activities of personnel in sale 
accounting, inventory, record keeping, receiving and shipping operations to implement 
fulfillment of contracts. Ultimately, it will be his responsibility to establish [the petitioner] 
on a sound footing. He recruits and trains the staff and have [sic] hiring and firing authority 
over them. Since transferring on the L-IA, he has successfully negotiated business 
Page 5 
acquisitions and entered into contractual obligations on behalf of the company with vendors 
and distributors. 
The petitioner also submitted the following list of duties for the beneficiary: 
• Marketing Management: His duties will include supervision of all Market and 
administrative operations for the company, as well as entering into contracts, over which 
he will exercise complete discretionary authority. He will be responsible for major 
decision making for Petitioner relating to marketing, personnel administration, etc. He 
will negotiate delivery contracts with manufacturers. He will hire professional 
advertising agencies to promote the new business with ad campaigns and special 
promotions in connection with exposing the new market segment. Educate staff on 
promotions and organizes employee meetings regarding policy on customer service, dress 
code, etc. Develop expansion plans and instruct his subordinates to deal with municipal 
and state agencies, making the business decisions on how to comply with the licensing 
requirements, preparing and submitting the required applications. 
• Management Decisions: possesses all rights to execute all the managerial decisions of 
the Company, including purchasing goods and equipment and hiring, firing and 
promotion of employees; assess mangers [sic] performance and assist with management 
issues; 
• Company Representation: acts in the name of the Company in all kinds of business 
contacts and relations; coordinate with state governmental office to ensure compliance 
[with] regulations; 
• Has total managerial and executive authority over the company and all of its activities 
and employees without limitation. 
• Directs and formulate financial strategy to provide funding in developing and continuing 
the operations to maximize returns on investments; set sales and product cost targets for 
managers and monitor progress; 
• Supervision of the company's day-to-day operations; oversee store standards regarding 
food quality and customer satisfaction policy; provide support to Sales managers and 
support staff; 
• Organizational Development: projects the company's future development and executes 
steps to accomplish the desired growth; prepare publicity and promotional campaigns; 
plan business strategy and target new business investments[.] 
The petitioner's letter of support also states that they currently have five employees and they expect to expand 
to ten employees before the end of2009. The petitioner provided a brief, single paragraph job description for 
the store manager, staff accountant, assistant store manager, sales clerk, and helper/cashier. The petitioner 
submitted a second letter of support that lists the beneficiary's duties for the foreign company. The duties 
listed are almost identical to the beneficiary's duties listed for the U.S. company. 
The petitioner's quarterly federal tax return Form 941 for the third quarter of 2008 lists four employees and 
total wages, tips, and other compensation paid to employees as $25,500. According to documents submitted 
in response to the RFE, the employees are the beneficiary, a general manager, and two managers. The Form 
941 submitted for the fourth quarter of 2008 lists five employees and total wages, tips, and other 
Page 6 
compensation paid to employees as $30,000. According to documents submitted in response to the RFE, the 
employees are the same as the previous quarter plus one cashier. 
The director issued a request for additional evidence ("RFE") on February 20, 2009 instructing the petitioner 
to submit, inter alia, the following: (1) the total number of employees at the u.s. location where the 
beneficiary will be employed; (2) a copy of the u.s. company's organizational chart clearly identifying the 
beneficiary's position and the employees he supervises by name and job title; and (3) a more detailed 
description of the beneficiary's duties indicating the percentage of time spent performing each of the listed 
duties. 
In response to the RFE, the petitioner submitted a letter detailing the beneficiary's duties as follows: 
1. He absolutely makes all the decisions for the Petitioner relating to financial and 
marketing management. He is responsible for the financial soundness of [the petitioner]. 
Specifically, he oversees the financial and banking processes with Petitioner's bankers 
regarding garnering loans and lines of credit as well as with distributors. He directs the 
managers on dealing and negotiating with bankers, distributors and manufacturers. He 
doesn't specifically negotiate directly with the distributors and manufacturers. There are 
three locations and the purchasing needs is too high for [the beneficiary] to directly deal 
by himself with dozens of suppliers and distributors. He imparts his vast purchasing and 
negotiating knowledge to his mangers [sic] so that they are able to negotiate prices and 
terms of payment. He directs the hiring [of] professional advertising agencies to promote 
the stores with ad campaigns and special promotions in connection with marketing to 
new market segment; 
2. He approves renovations, remodeling and repairs of the stores; taking reports of 
maintenance problems from the managers, deciding when it is appropriate to hire outside 
service to perform repairs or maintenance and choosing what repair services to use. The 
employees contact the landlord and contractors to have said repairs and other issues 
attended to; 
3. He educates managers on promotions and directs employee training regarding policy on 
customer service, dress code, etc. He holds meeting [sic] with the senior employees on 
this issue and directs them on proper protocol in order for them to educate other 
employees; 
4. He has wide latitude and discretionary power with developing expansion plans (where to 
open other outlets, etc .... ); 
5. He hires, fires and reviews performance of managers. He confers with the managers who 
determine salary increases, when necessary, and has the authority to terminate 
employment. There are employees managing the outlets; 
6. As the President of the U.S. operations, he reports to the parent corporation in India on 
the company's performance, business activities, plans to expand, current profit, loss and 
overall performance. This is not done on a daily basis but on a periodic basis as needed. 
Specifically, decisions to expand is [sic] discussed with the Indian parent; 
7. As President, he has discretionary responsibility to enter into contractual agreements on 
behalf of the Petitioner, including loans, lease space, and being responsible for 
investigating opportunities to open similar stores at other locations. He possesses 
complete discretionary authority over expansion and growth of the business; and 
Page 7 
8. In addition to the many functions alluded to above, [the beneficiary] also functions as the 
company's financial manager. It is his responsibility that company's manages [sic] its 
cash flow, debts and other obligations and in general remain solvent. This is an essential 
component to the survival of the company and he has done a good job because the 
company has continuously realized profits; and 
As detailed above, the beneficiary operates at a senior-most level within the organizational 
hierarchy and exercises discretion over the day-to-day operations of one or more functions 
within the organization. He also has sole authority over strategic policy decision for the 
stores regarding which market area to open up the stores, the type of products for that locality 
based on consideration and analysis of demographics and evolution of the national market 
and decisions and advertising agencies to promote the store. 
* * * 
The following is the percentage of time spent on each duty each day: 
Management Decisions 
Company Representation 
Financial Representation 
Supervision of the company day-to-day operations 
Business Negotiations 
Organizational Development 
8.0 hrs 
5.0 hrs 
10.0 hrs 
13.0 hrs 
1.0 hrs 
3.0 hrs 
The AAO notes that the number of hours above equal 40. 
In the same letter, the petitioner listed each of the beneficiary's subordinate employees and a brief description 
of their job duties. The petitioner also submitted an organizational chart for the U.S. company depicting the 
beneficiary as the chief executive officer, two managers, and four 
cashiers. 
The director denied the petition on August 10, 2009, concluding that the petitioner failed to establish that it 
has sufficient executive/managerial work to be performed to require the services of a full-time president/chief 
executive officer. In denying the petition, the director observed that the record contained several photographs 
of the convenience store including three of an employee, who looks very similar to the beneficiary, behind the 
cash register and the Georgia lottery ticket machine. The director further found that it appears that the 
beneficiary has been, and will continue to be, primarily performing the day-to-day duties of a convenience 
store employee or a first-line supervisor. 
In support of the appeal, counsel submits a brief in which he lists the beneficiary's duties as follows: 
[The beneficiary] is offered by [the petitioner] as president/CEO to direct its business 
operation in the United States. He has autonomous control over and wide latitude for the 
successful direction of [the petitioner]. His primary job duties include: 
Page 8 
1. 10% Direct the corporate financial and budget policies to fund operations, 
maximize investment, and increase efficiency; 
2. 50% Direct and implement policies, objective and activities of corporate and 
businesses to ensure continuing operations, to maximize returns on investment, and to 
increase efficiency; 
3. 25% Negotiate or approve contracts and agreement with suppliers, customers, and 
other business entities; 
4. 15% Direct human resource activities, including the approval of human resource 
plans and activities, the selection of managers and other high-level staff, and 
establishment and organization of major departments. 
The petitioner submits an offer of employment letter for the beneficiary listing the exact same duties detailed 
above. The petitioner also submits a job description for the position of "Managers of Convenience Stores" 
that report to the and an organizational chart depicting the beneficiary as the president/chief 
executive officer, two managers, and three cashiers. 
The petitioner's quarterly federal tax return Form 941 for the third quarter of 2009 lists six employees and 
total wages, tips, and other compensation paid to employees as $30,000. According to documents submitted 
in response to the RFE, the employees are the beneficiary, a general manager, two managers, and two 
cashiers. The Form 941 submitted for the second quarter of 2009 lists the same six employees and total 
wages, tips, and other compensation paid to employees as $36,000. The Form 941 submitted for the first 
quarter of 2009 lists the same six employees and total wages, tips, and other compensation paid to employees 
as $32,600. 
Discussion 
Upon review, and for the reasons stated herein, the petitioner has not established that it has sufficient 
executive/managerial work to be performed to require the services of a full-time president/chief executive 
officer. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 2l4.2(l)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
in either an executive or a managerial capacity. Id. Beyond the required description of the job duties, U.S. 
Citizenship and Immigration Services (USCIS) reviews the totality of the record when examining the claimed 
managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, the 
duties of the beneficiary'S subordinate employees, the presence of other employees to relieve the beneficiary 
from performing operational duties, the nature of the petitioner's business, and any other factors that will 
contribute to a complete understanding of a beneficiary'S actual duties and role in a business. 
The AAO does not doubt that the beneficiary will have the appropriate level of authority over the petitioner's 
business as its owner and president. However, the fact that the beneficiary owns and manages a business does 
not necessarily establish eligibility for classification as an intracompany transferee in a managerial or 
executive capacity within the meaning of sections lOl(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 
(Feb. 26, 1987) (noting that section 101(a)(15)(L) of the Act does not include any and every type of 
Page 9 
"manager" or "executive"). The petitioner must still establish that the beneficiary's duties are primarily 
managerial or executive in nature. See sections 101(a)(44)(A) and (B) of the Act. 
Counsel and the petitioner describe the beneficiary's proposed position in very broad terms, noting he 
"approves renovations, remodeling and repairs of the stores;" "educates managers on promotions and directs 
employee training regarding policy on customer service, dress code, etc.;" "has wide latitude and 
discretionary power with developing expansion plans;" "hires, fires and reviews performance of managers;" 
and "possesses complete discretionary authority over expansion and growth of the business." Some of these 
duties merely paraphrase the statutory definition of executive capacity. See section 101(a)(44)(B) of the Act. 
Condusory 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. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The petitioner's description of the beneficiary's duties fails to establish that the beneficiary would be engaged 
in primarily managerial or executive duties under the extended petition. On appeal, counsel further breaks 
down the beneficiary's duties in equally general and vague terms, noting that the beneficiary "direct[s] the 
corporate financial and budget policies," "direct[s] and implement[s] policies, objective[s] and activities," 
"negotiate[s] or approve[s] contracts and agreement[s] with suppliers," and "direct[s] human resource 
activities." The AAO notes that the petitioner previously provided additional descriptions for the 
beneficiary's duties; however, the descriptions are not sufficient to establish that the beneficiary is an 
executive or manager. While these tasks are undoubtedly necessary in order to establish the U.S. operations, 
the petitioner has not indicated how such duties qualify as either managerial or executive in nature. Reciting 
the 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. 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), affd, 
905 F.2d 41 (2d. Cir. 1990). 
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. § 1l01(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," 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(l)(1)(ii)(B)(2). 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. § lI0l(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." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by a subordinate employee. The possession of a 
Page 10 
bachelor's degree by a subordinate employee does not automatically lead to the conclusion that an employee 
is employed in a professional capacity as that term is defined above. 
The petitioner's evidence must substantiate that the duties of the beneficiary and his proposed subordinates 
correspond to their placement in the 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 an executive or managerial position. The petitioner has submitted an organizational chart 
depicting himself as the second tier of managerial employee, supervising a general manager, who supervises 
two managers, who supervise cashiers. While the subordinates perform some of the non-qualifying duties 
required for day-to-day operation of a small grocery store, the petitioner has not provided credible evidence of 
a proposed organizational structure that would be sufficient to elevate the beneficiary to a supervisory 
position that is higher than a first-line supervisor of non-professional employees. Pursuant to section 
101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as that of a personnel manager under 
the statutory definitions. 
The petitioner has not established, in the alternative, that the beneficiary is employed primarily as a "function 
manager." The term "function manager" applies generally when a beneficiary does not supervise or control 
the work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. In addition, the petitioner must 
provide a comprehensive and detailed description of the beneficiary's daily duties demonstrating that the 
beneficiary manages the function rather than performs the duties relating to the function. An employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Here, the petitioner did 
not indicate that the beneficiary performs as a function manager. The petitioner did not articulate the 
beneficiary's duties as a function manager and did not provide a breakdown indicating the amount of time the 
beneficiary spends on duties that would clearly demonstrate he manages an essential function of the U.S. 
company. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 110 1 (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 
employees for the beneficiary to direct and the 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 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." Id. The beneficiary in this matter has 
not been shown to be employed in a primarily executive capacity under the extended petition. The petitioner 
failed to demonstrate that the beneficiary's duties will primarily focus on the broad goals and policies of the 
Page 11 
organization rather than day-to-day operations. In fact, the petitioner has not established that it has sufficient 
executive work to be performed to require the services of a full-time executive. 
The reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily" 
employed in a managerial or executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) 
of the Act, 8 U.S.C. § 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who 
allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent, but those needs 
will not excuse a beneficiary who spends the majority of his time on non-qualifying duties. An employee 
who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to 
be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology Int'l, 19 I&N Dec. 593,604 (Comm'r. 1988). 
The AAO further notes that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). In reviewing the relevance of the number of 
employees a petitioner has, however, federal courts have generally agreed that USCIS "may properly consider 
an organization's small size as one factor in assessing whether its operations are substantial enough to support 
a manager." Family Inc. v. u.s. Citizenship and Immigration Services 469 F. 3d 1313, 1316 (9
th 
Cir. 2006) 
(citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003». It is appropriate for USCIS to consider the size of the petitioning company in conjunction 
with other relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C.2001). 
At the time of filing the petition, the petitioner was a one and a half-year-old investment business that claimed 
to have a gross annual income of $2,273,340. The company operates a grocery store and employed the 
beneficiary as president, a general manager, two managers, and one cashier. The AAO notes that all but one 
of the employees have managerial or executive titles. Based on the petitioner's representations, it has not 
established that the beneficiary's subordinate staff could relieve him from performing non-qualifying duties 
associated with operating a grocery store seven days per week. Regardless, the reasonable needs of the 
petitioner serve only as a factor in evaluating the lack of staff in the context of reviewing the claimed 
managerial or executive duties. The petitioner must still establish that the beneficiary is to be employed in the 
United States in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or 
the Act. As discussed above, the petitioner has not established this essential element of eligibility. 
The AAO will uphold the director's determination that the petitioner has not established that it has sufficient 
executive/managerial work to be performed to require the services of a full-time president/chief executive 
officer. Accordingly, the appeal will be dismissed. 
III. Qualifying Relationship 
Beyond the decision of the director, there is inconsistent evidence as to the ownership ofthe petitioner, which 
raises the issue of whether there is a qualifying relationship between and U.S. entity and a foreign entity 
'. .. 
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pursuant to 8 C.F.R. § 214.2(l)(l)(ii)(G). When considering the totality of the evidence presented, the 
petitioner has not sufficiently demonstrated that it is an affiliate of the foreign entity. 
Although the petitioner submitted the articles of incorporation and a stock certificate indicating that the 
beneficiary owns 100% of the petitioner's stock, the petitioner's 2008 U.S. Corporation Income Tax Return, 
IRS Form 1120, is incomplete. The Form 1120 does not indicate an answer to the question asking "at the end 
of the tax year, did any individual or estate own directly 20% or more, or own, directly or indirectly, 50% or 
more of the total voting power of all classes of the corporation's stock entitled to vote?" at Schedule K. In the 
instant matter, the petitioner claims that the beneficiary wholly owns and controls both the petitioner and the 
foreign entity. However, the inconsistent evidence in the record casts doubt on the evidence presented. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
Due to the inconsistencies detailed above, the petitioner has not met its burden to establish that the petitioner 
is an affiliate of the foreign entity. For this additional reason, the petition cannot be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.s.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka v. us. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). An application or petition that 
fails to comply with the technical requirements of the law may be denied by the AAO even if the Service 
Center does not identifY all of the grounds for denial in the initial decision. See Spencer Enterprises v. United 
States, 229 F. Supp. 2d 1025,1043 (E.D. Cal. 2001), affd345 F. 3d 683 (9th Cir. 2003). 
IV. Conclusion 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.