dismissed EB-1C Case: Business

identifYing data deleted to 
prev~t clearly unWarranted 
mvaslOn of personal privacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration SelVices 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: MAR 18 2011 
IN RE: Petitioner: 
Beneficiary: 
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. § 1153(b)(I)(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 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § I03.5(a)(I)(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 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 an Ohio corporation that 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)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.s.c. § IIS3(b)(I)(C), as a multinational 
executive or manager. The director denied the petition based on three independent grounds of ineligibility: 
I) the petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity; 2) the petitioner failed to establish that it would employ the beneficiary in a managerial or 
executive capacity; and 3) the petitioner failed to establish that it had the ability to pay the beneficiary'S 
proffered wage at the time of filing the petition. 
On appeal, counsel disputes the director's decision and submits a brief statement addressing each of the three 
grounds that served as a basis for denial. The record shows that the petitioner provided the beneficiary'S IRS 
Form W-2 wage and tax statements that reflect the beneficiary's salary in 2006 and 2007. This supplemental 
documentation indicates that the beneficiary was paid the proffered wage at the time of filing and beyond. 
Therefore, the petitioner has overcome the third ground cited as a basis for denial. The AAO notes that the 
director's finding that the beneficiary's proffered wage "is not consistent with an individual who works as a 
multinational manager or executive" is irrelevant to the issue of the petitioner's eligibility. As there is no 
statute or regulation that establishes a general wage standard that would be deemed appropriate for a 
managerial or executive employee, the director's comment is hereby withdrawn. Accordingly, this decision 
will focus on the two remaining grounds cited in the director's decision. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 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 )(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 
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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 primary issues in this proceeding call for an analysis of the beneficiary'S job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
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. § 1 1 01 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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 IOI(a)(44)(B) of the Act, 8 U.S.c. § I 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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. 
Page 4 
In support of the Fonn 1-140, a letter dated July 27, 2006 was submitted by the company's 
secretary treasurer, who provided the following description of the beneficiary's proposed employment with 
the U.S. entity: 
[The beneficiary's J duties as president include all major corporate decisions, such as any 
policy and/or procedural changes, recruitment, hiring and firing of all employees, 
development and/or implementation of any and all marketing strategies and/or advertisement 
campaigns, business forecasting, as well as any financial and/or investment decisions to be 
made on behalf of the corporation shall rest in the hands of its acting president[.J 
The petitioner's organizational chart was also provided in support of the Fonn 1-140. The chart depicts the 
beneficiary at the top of the hierarchy as the company's CEO with a general manager and a sales person listed 
on the right side of the chart in descending order and a vice president, the secretary treasurer, a receptionist, 
and a lot maintenance employee listed in descending order on the left side of the chart. 
With regard to the beneficiary's position with the foreign entity, _stated that the beneficiary was 
the managing director of the company since 1997 and thus ran the company as its CEO. Additionally, the 
record contains a letter dated February 18, 2006 signed by a partner of the foreign entity, who stated that the 
beneficiary'S position abroad involved making decisions on important matters and oversee recruitment, human 
resources, investments, finances, and administrative matters. The petitioner also provided the foreign entity's 
staff list, which named 25 employees including the beneficiary, and their respective position titles. 
Additionally, the petitioner listed a total of 118 individuals in a document titled "Worker's List." No 
explanation was provided to clarify the difference between the staff list and the worker list. 
On February 5, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide supplemental information about the beneficiary'S foreign and proposed U.S. employment. 
Specifically, the petitioner was asked to provide a detailed description listing the specific job duties that 
comprised the beneficiary'S employment abroad and those duties that would comprise the beneficiary'S 
proposed position in the United States. The director requested that each list of duties be accompanied by the 
percentage of time allocated to each of the listed job duties. The petitioner was also instructed to discuss the 
job titles, job duties, and qualifications of the beneficiary'S subordinates in each position and to include an 
organizational chart depicting each entity's hierarchy. 
In response, a letter dated April 28, 2008 was provided by the petitioner's fonner counsel, who briefly 
described the supporting exhibits that were being submitted in response to the director's RFE. Counsel 
indicated that the foreign entity's employee list had been previously provided. He also stated that the staff list 
is independent of the worker list and noted that the beneficiary was in charge of all the staff workers. 
However, none of counsel's follow-up statements explained specifically the distinction between the worker 
list and the staff list. With regard to the description of the beneficiary's foreign employment, counsel stated 
that the beneficiary, like any typical CEO, was in charge of all major corporate decisions, including corporate 
policies, procedures. personnel changes, recruitment, finance, marketing, and product development. 
With regard to the beneficiary'S proposed employment, the petitioner submitted a list of its employees and 
provided brief job descriptions for each individual. The beneficiary'S U.S. employment was briefly described 
as a position that would involve making all decisions concerning finances, staffing, and marketing. The 
petitioner stated that the cover letter contains a more detailed description of the beneficiary'S proposed job 
Page 5 
duties. No further statements were submitted to explain which of the letters, i.e. either counsel's letter, which 
was submitted with the response to the RFE, or the initial support letter, was referred to as the cover letter or 
which portions of either letter contained the detailed information about the beneficiary's specific job duties. 
The director denied the petition concluding that the general statements that were used to describe the 
beneficiary's employment were insufficient to establish that the beneficiary was employed abroad and that she 
would be employed in the United States within a qualifying managerial or executive capacity. The director 
determined that the petitioner failed to provide an account of the beneficiary's day-to-day job duties in either 
of her positions. 
On appeal, counsel asserts that the director acknowledged that the beneficiary manages all functions of the 
U.S. entity and contends that the director's decision is therefore arbitrary and capricious in light of this 
admission. A review of the director's decision, however, indicates that counsel's argument is without merit. 
Despite counsel's assertion that the director acknowledged that the beneficiary manages all of the petitioner's 
functions, the decision contains no indication that the director indeed made such a statement. In fact, the 
director expressly stated that U.S. Citizenship and Immigration Services (USCIS) cannot deem the 
beneficiary to be employed in a managerial or executive capacity even where the petitioner is able to establish 
that the beneficiary operates the entire company. The director noted that operating an entire company does 
not necessarily constitute managing an essential function. This finding was both preceded and followed by 
adverse findings with regard to the petitioner's deficient descriptions of the beneficiary'S foreign and proposed 
employment. 
In general, the term "function manager" applies 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. § 1 10 1 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e., 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. 
8 C.F.R. § 204.5(j)(5). In addition, the petitioner's description of the beneficiary'S daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related 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 (requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter 
afChurch Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In the present matter, the director repeatedly commented on the petitioner's failure to specify the beneficiary's 
actually daily job duties in the foreign and U.S. positions. The AAO notes that, despite the director's attempt 
to elicit this crucial information by issuing a detailed RFE, the petitioner did not comply with the director's 
instructions and instead provided overly vague job descriptions that fail to identify the beneficiary's specific 
tasks. Although counsel focuses on the foreign entity's organizational hierarchy in an attempt to establish that 
the beneficiary was employed abroad within a qualifying capacity, the beneficiary's position placement and 
the company's staffing cannot be solely relied upon to determine the nature of the proposed position. 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). The record does not clarify the difference 
Page 6 
between the list of staff and the list of workers that pertain to the foreign entity and these lists alone, without 
further explanation, are insufficient to establish that the beneficiary primarily performed managerial- or 
executive-level tasks. 
Similarly, the description of the beneficiary's proposed employment is also lacking in any detailed statements 
identifying precisely what tasks the beneficiary would perform in the context of the petitioner's business 
organization. As indicated above, a detailed description of the beneficiary's job duties is essential to 
determine that the proposed employment is within a qualifying managerial or executive capacity. Reciting 
the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient to establish 
what the beneficiary would be doing on a day-to-day basis. While the beneficiary's top-most position within 
the petitioner's organizational hierarchy is one key factor that USClS considers in determining whether the 
beneficiary's employment is within a qualifying capacity, this information does not outweigh the significance 
of the beneficiary's job description. The beneficiary cannot be deemed to be a managerial or executive 
employee, regardless of her position within the company hierarchy, if the primary portion of her time would 
be allocated to non-qualifying job duties. Here, the record has not been supplemented with the required 
information about the proposed job duties. Although counsel has submitted an appellate brief disputing the 
director's findings, the brief is primarily comprised of summaries of unpublished AAO decisions. The AAO 
notes that counsel has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in the unpublished decisions. Furthermore, while 8 C.F.R. § I03.3(c) provides that AAO precedent 
decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
Counsel's restatement of the beneficiary's broad job responsibilities is insufficient to overcome the director's 
sound reasoning, which properly focuses on the lack of relevant and crucial information about the 
beneficiary's job duties. Moreover, counsel's assertion that the petitioner can best benefit from fewer 
employees in order to keep its overhead costs low is irrelevant if the petitioner's decreased personnel structure 
requires the beneficiary to devote the primary portion of her time to non-qualifying tasks. While the 
petitioner's needs are certainly considered, such needs will not override the statutory requirement that the 
beneficiary primarily perform tasks within a qualifying managerial or executive capacity. Counsel's assertion 
that "Congress did not intend to force small corporations into bankruptcy in order to satisfy administrative 
preferences" is stated out of context and without proper consideration of express statutory provisions, which 
clearly establish that only those individuals who would primarily perform qualifying managerial or executive 
job duties will merit immigrant classification as a multinational manager or executive. Counsel has not 
pointed to any evidence that would suggest that Congress intended to bestow immigration benefits on 
individuals whose employment capacity has not been established as being primarily that of a manager or 
executive. Counsel's suggestion that certain statutory provisions may be overlooked if doing so would ensure 
the petitioning entity's financial well-being is unsupported. 
In summary, the petitioner has provided inadequate evidence to establish that the beneficiary was either 
employed abroad or that she would be employed by the U.S. entity in a qualifying managerial or executive 
capacity. Therefore, the instant petition cannot be approved. 
Lastly, while not addressed in the director's discussion, the AAO finds that the petitioner failed to establish 
that the beneficiary was employed abroad for one year during the relevant three-year period. The regulation 
at 8 C.F.R. § 204.SG)(3)(i) states, in part, the folJowing: 
Page 7 
A) If the alien is outside the United States, in the three years preceding the filing of the 
petition the alien has been employed outside the United States for at least one year in 
a managerial or executive capacity by a firm or corporation, or other legal entity, or 
by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity[.] 
The clear language of the statute indicates that the relevant three year period is that "preceding the time of the 
alien's application for classification and admission into the United States under this subparagraph." 
§ 203(b)( I )(C) ofthe Act, 8 U .S.C. § 1153(b)(I )(C). The statute, however, is silent with regard to aliens who 
have already been admitted to the United States in a nonimmigrant classification. In promulgating the 
regulations for section 203(b)(I)(C) of the Act, the legacy Immigration and Naturalization Service (INS) 
concluded that it was not the intent of Congress to exclude L-IA multinational managers or executives who 
had already been transferred to the United States from this employment-based immigrant classification. 
Specifically, INS stated the following with regard to the interpretation of the Congressional intent behind the 
relevant statutory provisions: 
The Service does not feel that Congress intended that nonimmigrant managers or executives 
who have already been transferred to the United States should be excluded from this 
classification. Therefore, the regulation provides that an alien who has been a manager or 
executive for one year overseas, during the three years preceding admission as a 
nonimmigrant manager or executive for a qualifying entity, would qualify. 
56 Fed. Reg. 30703, 30705 (July 5,1991). 
In other words, for those aliens who are currently in the United States in L-1 A status, the relevant time period 
mentioned in the statute should be the three-year period preceding the time of the alien's application and 
admission as (or change of status to) an L-IA multinational manager or executive classification. 
In light of the above, the beneficiary's 200 I entry into the United States for the purpose of working for a 
Texas entity other than the petitioner cannot be the basis for determining the relevant three-year time period 
during which the beneficiary's employment abroad would be considered. As the beneficiary did not enter the 
United States for the purpose of "working for the same employer or a subsidiary or affiliate of the firm or 
corporation, or other legal entity by which the alien was employed overseas," the criterion described in 
8 C.F.R. § 204.5(j)(3)(i)(B) cannot be applied. Rather, the beneficiary's time period of employment abroad 
must be scrutinized on the basis of the criterion described at 8 C.F.R. § 204.5(j)(3)(i)(A), which states that the 
relevant three-year time period is that which falls within the three years prior to the filing of the instant 
petition. As the instant petition was filed in 2006 and it is well established that the beneficiary was present in 
the United States between 2003 and 2006, it cannot be concluded that the beneficiary was employed abroad 
during the relevant three-year time period. 
· . 
Page 8 
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 identity 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). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
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.