dismissed EB-1C Case: Baby Products

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identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBUCCOPY 
DATE: 
MAR 2 1 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
u. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(1)(C) ofthe Immigration and Nationality Act, 8 U.S.c. § I 1 53(b)(1)(C) 
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)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen . 
• 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is engaged in the distribution and sale of baby products, and it seeks to employ the 
beneficiary as its President. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition based on the following grounds of ineligibility: (1) failure to establish 
that the beneficiary'S employment abroad was within a qualifYing managerial or executive capacity; and 
(2) failure to establish that the beneficiary'S proposed employment with the U.S. entity would be within a 
qualifYing managerial or executive capacity. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the grounds 
for challenging the denial. The remainder of this decision will address the beneficiary'S foreign and 
proposed employment to determine whether the petitioner met the applicable eligibility criteria. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 1 
year by a fIfni or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers 
who have previously worked for a frrm, corporation or other legal entity, or an affiliate or subsidiary of 
that entity, and who are coming to the United States to work for the same entity, or its affiliate or 
subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(1)(C) of the Act as a multinational executive or manager. No labor certification is required for 
this classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or 
executive capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The two issues that will be addressed in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the petitioner submitted sufficient 
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evidence to establish that the beneficiary was employed abroad and would be employed in the United 
States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the ACt, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means 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), provides: 
The term "executive capacity" means 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. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). Published case law clearly supports 
the pivotal role of a clearly defined job description, as the actual duties themselves reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 
F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.50)(5). USCIS reviews the totality of the record, which 
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includes not only the beneficiary's job description, but also takes into account the nature of the 
petitioner's business, the employment and remuneration of employees, as well as the job descriptions of 
the beneficiary's subordinates, if any, and any other facts contributing to a complete understanding of a 
beneficiary's actual role within a given entity. 
An analysis of the record does not lead to an affIrmative conclusion that the beneficiary was employed 
abroad or would be employed in the United States in a qualifying managerial or executive capacity. 
In support of the petition, the petitioner's vice president submitted an affIdavit that stated the beneficiary 
held the position of President for the foreign company from June 1996 until 2006. In response to the 
director's request for evidence, the petitioner stated that as CEO of the foreign company, the beneficiary 
was "responsible for planning, directing and executing all business activities of the company including: 
sales and marketing, budgeting, administration, purchasing, contract negotiations, hiring and firing and 
managing all operations of the company." The petitioner also stated that the beneficiary was the "senior 
executive of the company." The petitioner provided a list of employees at the time the beneficiary 
transferred to the United States and a brief job description for each employee. According to that list, the 
foreign company employed 26 employees at that time. 
Although it appears that the foreign company had several employees who could have performed the day­
to-day operational duties, it is still the burden of the petitioner to establish that the beneficiary was 
employed primarily in an executive and managerial capacity. The petitioner provided a brief and general 
description of the job duties performed by the beneficiary with the foreign company. The petitioner stated 
that the beneficiary was "responsible for planning, directing and executing all business activities of the 
company." The beneficiary's position description is too general and broad to establish that the 
preponderance of his duties was 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 petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The job description submitted by the petitioner provides little insight into the true nature of the tasks the 
beneficiary performed with the foreign company. In addition, the petitioner has not provided a 
breakdown of the percentage of time the beneficiary spent on various duties, and did not articulate 
whether each duty is managerial or executive. 
The second issue in this proceeding is whether the petitioner submitted sufficient evidence to establish 
that it would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
In support of the Form 1-140, the petitioner submitted an affidavit from the vice president, in which it 
stated that the beneficiary's job responsibilities in his proposed employment with the petitioning entity 
would include the following: 
He will continue to be responsible for planning, directing and establishing the goals, 
objectives and policies of the entire [petitioner's] business organization in the United 
States. His duties include coordinating the functions and operations of the sales and 
customer service, logistics, financial and administrative and warehousing operations. He 
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is responsible for hiring, fIring and employee incentive actions and policies. He conducts 
research and sets policies and approves pricing and fInal contract agreements. He 
directly manages major client contracts, establishes marketing plans and goals and 
oversees all business activities. [The benefIciary] will also continue to serve as the CEO 
of [the foreign company]. [The petitioner's] sales have expanded primarily in the United 
States, the Caribbean and Central Americas. The company has determined that [the 
benefIciary's] position will benefIt the business of both companies if located in Florida. 
The petitioner submitted the Form 1120, U.S. Corporation Income Tax Return, for 2008 that indicated 
that the petitioner paid $15,846.00 in salaries and wages for that tax year. The petitioner also submitted 
Form 941, Employer's Quarterly Federal Tax Return, for the third quarter of 2009 that indicated the 
petitioner employed 4 individuals, and for the fourth quarter of 2009 the petitioner had 5 employees. The 
petitioner also submitted a chart of all of the petitioner's employees from July 14, 2009 until September 
30, 2009. The chart indicated that on September 30, 2009, the petitioner employed 4 individuals, 
including the to the chart, the two week salary of Juan Basabe was $190.00 and 
the two week salary for was $500.00. It does not appear that these individuals were 
working on a full-time baSIS 
The petitioner also submitted an organizational chart for 2009 that showed the benefIciary as president, 
who supervises the vice president, who in tum supervises warehouse, sales manager and international 
sales (stated "open" on the chart), customer services and accounting auditor. The Sales Manager that was 
indicated as "open" on the chart supervises two employees in Domestic Sales and one employee in 
Caribbean Sales. The organizational chart shows 8 employees but the employer's quarterly wage reports 
indicate only 5 employees. The petitioner states that it has contract employees but the petitioner failed to 
provide any evidence that it actually hires contract workers such as copies of Form 1099 or a contract 
between the petitioner and the contractors. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
On appeal, counsel for the petitioner states that "the petitioner has determined that 4 employees plus 
contract sales representatives are sufficient to operate this business," and that the beneficiary is the 
"senior manager of the company and exercises independent and unlimited authority over all operations 
and activities of the business." 
In examining the executive or managerial capacity of the benefIciary, the AAO will look fIrst to the 
petitioner's description of the proposed job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will then 
consider this information in light of the petitioner's organizational hierarchy, the benefIciary'S position 
therein, and the petitioner's overall ability to relieve the benefIciary from having to primarily perform the 
daily operational tasks. 
The AAO fInds that the benefIciary's job description is defIcient in that it fails to provide detailed 
information about the actual tasks the benefIciary would perform in the position of President. 
On review, the petitioner provided a vague and nonspecifIc description of the benefIciary's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states 
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vague duties such as "planning, directing and establishing the goals, objectives and policies of the entire 
[petitioner's] business organization in the United States"; and "sets policies and approves pricing and 
final contract agreements." The petitioner did not, however, define the petitioner's goals and policies. 
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 petitioner has 
failed to provide any detail or explanation of the beneficiary's activities in the course of his daily routine. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. at 1108. The petitioner's descriptions ofthe beneficiary's position do not identify the actual 
duties to be performed, such that they could be classified as managerial or executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary's responsibilities 
will include "coordinating the functions and operations of the sales and customer service, logistics, 
financial and administrative and warehousing operations," "conducts research and sets policies," and 
"directly manages major client contracts, establishes marketing plans and goals and oversees all business 
activities." However, the petitioner does not clarify the role of the sales department and the duties to be 
performed by the subordinates in the departments that the beneficiary will supervise. The job description 
indicates that the beneficiary will be developing and marketing the services of the business rather than 
directing such activities through subordinate employees. In addition, establishing marketing plans and 
negotiating deals are both operational duties that cannot be classified as managerial or executive tasks. 
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 Intn 'I., 19 I&N Dec. at 604. 
The petitioner did not provide a job description for the subordinate positions that will be supervised by 
the beneficiary. As noted above, the petitioner employed only 5 employees at the time the petition was 
filed and two of them were part-time employees. In addition, the petitioner does not provide evidence 
that it employs contract employees. The petitioner stated that the employees of the foreign company 
assist the beneficiary with the U.S. company but again, there is no evidence to corroborate this claim. 
The petitioner has not identified employees within the petitioner's organization, subordinate to the 
beneficiary, who would relieve the beneficiary from performing routine duties inherent to operating the 
business since the subordinates' duties were not in the record. 
Furthermore, the petitioner is engaged in the distribution of baby products and it is not clear who is 
responsible for purchasing, managing the import and delivery of wholesale, managing customs 
procedures, inventory, and negotiating contracts with wholesalers. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The AAO fmds that the director was correct in concluding that the petitioner failed to provide an adequate 
description of the beneficiary's job duties. Given the lack of full-time personnel in the petitioner's 
organization at the time of filing, the AAO questions how the petitioner would have been able to relieve 
the beneficiary from having to allocate the primary portion of his time to performing non-qualifying 
tasks. The burden is on the petitioner to establish eligibility at the time of filing. 8 C.F.R. § 1 03.2(b )(1). 
A petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a 
Page 7 
new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Thus, even if the petitioner 
were to argue that additional personnel eventually relieved the beneficiary from having to primarily 
perform non-qualifying tasks, such information would be irrelevant for the purpose of determining the 
petitioner's eligibility at the time of filing the petition. 
The record as presently constituted is not persuasive in demonstrating that the beneficiary would be 
employed in a primarily managerial or executive capacity. The fact that an individual manages a small 
business does not necessarily not establish eligibility for immigrant classification under the definitions of 
managerial or executive capacity within the meaning of section 101(a)(44) of the Act. The record does 
not establish that a majority of the beneficiary's duties will be primarily directing the management of the 
organization or overseeing the organization's managerial, professional, or supervisory personnel. The 
record indicates that at the time of filing, a preponderance of the beneficiary's duties would have been to 
directly provide the services of the business, regardless of whether such services were qualifying or not. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial­
or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to his proposed position. 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 International, 19 I&N Dec. 593, 604 (Comm. 1988). The evidence furnished strongly 
indicates that the beneficiary would not be employed primarily in a qualifying managerial or executive 
capacity. For this reason, the petition may not be approved. 
The petitioner has failed to provide sufficient evidence to establish that the beneficiary was employed 
abroad or that he would be employed in the United States in a primarily managerial or executive capacity. 
Based on these findings, the instant petition cannot be approved. 
Beyond the decision of the director, the petitioner has submitted insufficient and conflicting information 
regarding its claimed qualifying relationship with the beneficiary's foreign employer. As evidence of the 
ownership of the foreign company, the petitioner submitted the business registration that stated that the 
beneficiary an~ch owned 50% of the company. The f.1~LIUU'll"'l_ 
certificates and the stock ledger of the petitioner indicating that the beneficiary and 
owned 50% of the wever, in the Form 1120, U.S. Corporation Income Tax Return for 
2008, it stated that had 75% in voting stock and the beneficiary had 25% voting stock. 
Thus, a qualifying relationship between the foreign company and the petitioner has not been established. 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). 
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, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that 
the AAO reviews appeals on a de novo basis). Based on the additional grounds of ineligibility discussed 
above, this petition cannot be approved. 
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The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. The petitioner has 
not sustained that burden. 
ORDER: The appeal is dismissed.