dismissed EB-1C Case: Body Jewelry

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER Date: , 
JUN 1 8 2009 
LIN 08 034 52955 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. fj 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
cting Chief, Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a California corporation engaged in importing and distributing body jewelry. The 
petitioner seeks to employ the beneficiary as its manager. Accordingly, the petitioner endeavors to 
classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational executive or 
manager. The director denied the petition based on the determination that the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief statement addressing the 
beneficiary's proposed employment. 
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 firm 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 firm, 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)(l)(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 primary issue in this proceeding is whether the beneficiary would be employed in the United 
States in a qualifying managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S .C. fj 1 10 1 (a)(44)(A), provides: 
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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. § 1 101(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 support of the Form 1-140, the petitioner submitted a letter dated October 30, 2007, which 
includes the following description of the duties to be performed by the beneficiary under an 
approved petition: 
Through his managerial skills and his knowledge of the industry, [the beneficiary] has 
made the business decisions to maintain a product line that meets the frequent change 
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in the tastes of consumers who purchase body jewelry. He tracks the changes, does 
market surveys, visits stores operated by competing companies, and formulates a plan 
to present products that consumers want to buy. He then makes the arrangements to 
locate, import, and distribute the jewelry in the United States. 
In addition to the retail outlets, wholesale sales constitute a significant part of this 
business. [The beneficiary] has developed alliances with over 100 marketing 
companies that have retail outlets throughout the United States. These alliances were 
developed by personal contact with the marketing companies. He presents proposed 
designs and makes notes on the comments made by the marketing companies' staff. 
He learns what changes and modifications will make our products more saleable. 
This personal contact has been essential to the growing list of these business 
relationships. . . . It is through appraising the needs of the various vendors that [the 
beneficiary] is able to offer jewelry that is appropriate for each vendor. 
One of the ways in which [the beneficiary] reaches out to find new wholesale 
customers is through his attendance in trade shows for jewelry and general 
merchandise. . . . 
[The beneficiary] takes his market research from his personal contacts with 
companies, his attendance at trade shows, and visits to competing stores, and gathers 
information setting out what designs will be most in demand. . . . Then samples of 
the new, modified designs are forwarded to [the beneficiary] and he again contacts 
the marketing companies to assure that the changes meet their needs. 
[The beneficiary] exercises management and control over the functions of 
development and marketing of the business. [He] has management and control 
responsibility for the function of development. He is in charge of the continuous 
successful expansion of the business. He studies market trends, and his evaluations 
determine where additional stores can be opened to market company products. 
As manager of the marketing function he creates and implements [the clompany's 
marketing plan. He attends trade shows to keep abreast of changes in the market and 
customer needs, review pricings and designs. He determines and establishes the 
[petitionerl's product line. He has discretion to select designs to be purchased from 
abroad for resale to the United States vendors. 
He is responsible for hiring, firing, and supervising the store managers, who manage 
the sales at the two retail stores. He evaluates the performances of the managers. He 
makes judgment on performance of employees and decides on salary and wages and 
promotion. The store managers provide reports to him. . . . He conducts performance 
reviews and ensures that his staff followed rules and regulations . . . . 
The petitioner also provided a copy of its organizational chart depicting the beneficiary at the top of 
the organizational hierarchy overseeing two managers, one at each the petitioner's two retail 
locations. The chart also shows that the beneficiary is solely in charge of the wholesale operation, 
which appears to have no one other than the beneficiary to oversee the daily activities. 
On February 12, 2008, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide a more detailed description of the beneficiary's day-to-day tasks with time 
constraints establishing the percentage of time that will be devoted to each task, as well as the 
petitioner's detailed organizational chart including job descriptions for the beneficiary's subordinates. 
In response, the petitioner provided an hourly schedule of the duties performed by the beneficiary 
during the span of five days. The schedule shows that the first 30 minutes of everyday would be 
spent performing administrative tasks, including paperwork, checking emails and online orders, and 
responding to customers, manufacturers, and suppliers. On Monday, the next two hours of the 
beneficiary's time is spent doing the following: meeting with the jewelry department manager of one 
of the petitioner's two retail stores to discuss sales reports, customer feedback, new products and 
product samples, and any new products the customers are looking for; assessing store inventory, 
merchandise production and approximate time of arrival; and getting the manager's feedback on new 
styles the beneficiary developed. The beneficiary spends the next 30 minutes reviewing all the 
points discussed with the manager. The hour and a half following lunch, the beneficiary searches for 
new jewelry designs online, designs new styles, and modifies old styles. The next hour is spent 
meeting with the manager of the other retail store to discuss weekly sales report, store inventory, 
customer complaints, customer demands, and employee-related issues. The final two hours of 
Monday are spent finding suppliers for new items by going through catalogues and web sites, and 
reviewing new samples sent by different suppliers. The beneficiary then completes the purchase of 
each selected item from the chosen supplier. 
On Tuesday, following the first 30 minutes of office tasks, the beneficiary spends one hour calling 
customers to find out product demands and requirements. The next hour is spent taking photographs 
of new designs developed by the beneficiary, printing flyers and sending them to customers, and 
sending emails to different customers. The following 30 minutes is spent meeting with an 
accountant to discuss available funds, incoming funds, and funds payable. Following lunch, an hour 
and a half is spent meeting with one of the retail store managers to discuss the daily sales report, 
inventory levels, customer complaints, customer demands for new merchandise, new products being 
brought to the store, and any new employee training programs. The next hour is spent reviewing 
topics discussed with the store manager during the prior hours, deciding whether to bring in new 
products, talking with suppliers, and placing product orders. The final two hours of the day are spent 
going through emails and calling trade show organizers to decide which shows to attend. 
On Wednesday, following 30 minutes of office tasks, the beneficiary spends one hour talking to 
suppliers about new products, market trends, trade shows, and products carried by competitors, and 
decides which products to buy from the suppliers. The next hour and a half is spent calling different 
malls to check for space available to open a new store, get an idea of any new stores coming to the 
various malls, find out other relevant information, and visit a store location. Following lunch, the 
remaining four hours of the day are spent visiting one of the petitioner's retail stores to meet with the 
manager and to check how items are being displayed, explain to the manager how to display new 
merchandise, demonstrate how to use the new merchandise, answer questions the employees may 
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have, and review sales reports, inventory, proposed purchase orders, customer feedback and demand 
for new merchandise, and employee performances. 
On Thursday, for the two and a half hours following the office tasks, the beneficiary meets with one 
of the store managers at the store location to talk about new products and designs, to instruct him to 
visit competitor stores to look for ideas of new products, and to ask him to send flyers to customers. 
After lunch, the beneficiary spends one hour reviewing lists of wholesale customers who stopped 
buying from the petitioner in order to determine why they stopped and to make a plan for getting the 
customer(s) back; and researching and approaching new customers. The following hour is spent 
reviewing bank statements for fund availability and meeting with the accountant to make financial 
plans for the following week. The final three hours of the day are spent visiting customers to gather 
their feedback and to show samples and designs of the latest trends. 
On Friday, the two hours following office tasks are spent reviewing catalogues, brochures, and 
samples to decide on product lines. The next 30 minutes are spent talking to one of the store 
managers to gauge customer response to new styles and to determine which items to order. After 
lunch, the next hour is spent talking to the other store manager about her response to new products 
and asking which products to order. The following hour is spent modifying designs per customer 
request, contacting the customer with the changes, updating the flyers with new jewelry, and 
updating customer contact list. The final three hours of the day and of the week are spent visiting 
competitor stores and make notes about the items they carry. 
Lastly, the petitioner provided the following brief percentage breakdown of the beneficiary's time 
allocations: 40% spent on product design and development, 45% spent on marketing and trade 
shows, 5% spent on human resource management, 5% spent on business expansion, and the final 5% 
is spent on finance and budgeting. 
After reviewing the submitted evidence, the director determined that the petitioner failed to establish 
eligibility and therefore issued a decision dated May 22, 2008 denying the petition based on the 
determination that the beneficiary would primarily perform non-qualifying tasks. Although the 
AAO concurs with this conclusion, a portion of the director's underlying analysis does not accurately 
apply the relevant statutory provisions. Specifically, the director makes a finding that the two store 
managers are first line supervisors because the employees they oversee are not professionals. The 
AAO notes that there is no statutory or regulatory provision that holds the beneficiary's subordinates 
to the same standards that apply to the beneficiary himself. 
Notwithstanding the above, an approval of the petition was not warranted, as the petitioner failed to 
establish that the beneficiary would be employed in a primarily managerial or executive capacity. 
While the AAO acknowledges the petitioner's diligence in complying with the director's earlier 
request for a detailed description of the beneficiary's proposed job duties, the fact of the matter is 
that the information the petitioner provided strongly indicates that a majority of the beneficiary's 
time has been and would be consumed with daily operational tasks. As properly stated in the 
director's decision, 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). 
 Here, the record is not ambiguous with regard to the 
beneficiary's daily job duties. By the petitioner's own admission, the beneficiary spends 40% of his 
time designing and developing the products that generate the petitioner's income and he spends 
another 45% percent of his time marketing these products in order to increase the petitioner's profits. 
By definition, designing and marketing the petitioner's products constitute operational tasks. The 
sample schedule that delineates the beneficiary's specific daily tasks indicates that it is these 
operational tasks that would consume the primary portion of the beneficiary's time. 
In summary, although the job description clearly shows that a significant portion of the beneficiary's 
daily activities involve overseeing the two retail operations that are managed by the beneficiary's 
direct subordinates, these managerial tasks do not comprise the majority of the beneficiary's time. 
Rather, the beneficiary's primary focus is designing and marketing the jewelry that the petitioner 
sells at its retail and wholesale operations, as well as communicating directly with suppliers and 
customers. There is no evidence that the petitioner employs anyone to relieve the beneficiary from 
having to primarily perform these non-qualifying duties on a daily basis. Thus, even if the daily 
tasks associated with running the petitioner's retail operations would likely be performed by other 
employees, the evidence of record indicates that the beneficiary's time would be primarily spent 
performing daily operational tasks. 
On appeal, counsel for the petitioner refers to a previously approved L-1A nonimmigrant petition, 
with receipt no., on behalf of the same beneficiary. More specifically, counsel 
points out that while the director initially denied the petition, the AAO subsequently reviewed the 
matter and remanded it due to procedural error by the director. Although the director ultimately 
approved the petition, it must be noted that the AAO clearly determined that at the time of the 
appellate review, eligibility had not been established. The AAO specifically determined that the 
petitioner had failed to provide sufficient information about the beneficiary's job duties in order to 
determine how the beneficiary would spend the primary portion of his time.' As the director's 
ultimate decision had not been certified to the AAO for review, the AAO has no way of knowing 
whether the petitioner had provided any additional information regarding the beneficiary's proposed 
job duties. If the petitioner had provided additional information similar in content to the information 
contained in the current record of proceeding, then the director's decision to approve the petition 
would be deemed gross error. The approval of a nonimmigrant petition in no way guarantees that 
USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies 
many 1- 140 immigrant petitions after approving prior nonimmigrant I- 129 L- 1 petitions. See, e.g., Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 
22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). The AAO 
is not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. at 597. 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof; each petition must stand on its own individual merits. USCIS is not 
required to assume the burden of searching through previously provided evidence submitted in 
support of other petitions to determine the approvability of the petition at hand in the present matter. 
1 
 See page six of the AAO decision dated August 23,2005 
As the decision referenced by counsel in the present matter is not part of the current record of 
proceeding, the AAO has no way of gauging the basis for the director's decision to approve the 
petition. As such, the AAO cannot determine that the nonimmigrant petition warranted approval. 
In the present matter, the AAO has determined that the description of the proposed position indicates 
that the beneficiary's time would be primarily consumed with non-qualifying tasks. Although 
counsel points out on appeal that the beneficiary has ultimate discretion over all matters concerning 
the business, this aspect alone is not sufficient to establish that the beneficiary's position is within a 
qualifying capacity. In fact, it appears that counsel is justifying the petitioner's need to have the 
beneficiary perform many of the non-qualifying tasks he currently performs. However, the 
petitioner's business needs do not override the petitioner's burden to meet statutory requirements. 
Here, the record indicates that the petitioner has a continued need to employ the beneficiary in a non- 
qualifying capacity where the primary portion of the beneficiary's time would be spent performing 
daily operational tasks. As stated above, 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. at 604. In light of the petitioner's failure to establish that the 
beneficiary would primarily perform tasks of a qualifying nature, this petition cannot be approved. 
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.