dismissed EB-1C Case: Business

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PlJDLlC COpy 
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 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
MAR 2 4 2011 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(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 
infonnation 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 Fonn 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days ofthe 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 a California corporation that seeks to employ the beneficiary as its project executive. 
Accordingly, the petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(J)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § JJ53(b)(J)(C), as a 
multinational executive or manager. The director denied the petition based on two independent grounds of 
ineligibility: J) the petitioner failed to establish that the beneficiary was employed abroad in a qualifYing 
managerial or executive capacity; and 2) the petitioner failed to establish that it would employ the beneficiary 
in a managerial or executive capacity. Although the director also addressed what he perceived to be 
discrepancies in the petitioner's ownership, he determined that the totality of the evidence approach did not 
warrant an adverse conclusion regarding the petitioner's qualifying relationship with its foreign counterpart 
and thus concluded that sufficient evidence was subm itted to satisfY the initial evidence requirement 
discussed at 8 C.F.R. § 204.5(j)(3)(i)(C). 
On appeal, counsel disputes the director's conclusions and submits a brief providing additional infonnation 
about the beneficiary's foreign and proposed employment. 
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 J 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 finn, 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)( I )(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 fonn 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 perfonned by the alien. 
Page 3 
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 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 III 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. § llOl(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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 supporting documents, which contained the foreign 
entity's and the petitioner's organizational charts and a description of the beneficiary's employment with each 
entity. As the director summarized each entity's organizational chart and restated each of the beneficiary'S 
position descriptions, the AAO need not repeat this information for the record. 
On February 13, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide additional infonnation with regard to the beneficiary's foreign and proposed employment. 
Specifically, the director asked the petitioner to provide more detailed job descriptions, listing the 
beneficiary's actual daily tasks during his employment abroad and his proposed employment with the U.S. 
entity and the amount of time that was and would be allocated to each task. The petitioner was also asked to 
provide a detailed organizational chart for itself and for the beneficiary's foreign employer. The director 
noted that several individuals were listed without position titles and asked that each chart list the entity's 
employees by name and position title. The director also requested that brief job descriptions be provided for 
the beneficiary's immediate supervisor and subordinate employees in each of his positions. 
While the petitioner's response included supplemental job descriptions for both of the beneficiary's positions, 
neither position breakdown included time allocations to indicate what percentage of time was and would be 
devoted to the beneficiary's individual tasks within each of his respective positions. Instead, the petitioner 
provided a separate document which allocates a percentage of time to various duties and responsibilities 
according to the specific day of the week assigned to a duty or responsibility. As the director included the 
percentage breakdown in the denial, this information does not need to be restated in the current proceeding. It 
is noted that not all duties and responsibilities that were included in the percentage breakdown chart 
correspond to the items that were included in the separate job description, which categorizes the beneficiary's 
duties according to their respective job responsibilities. 
The petitioner also provided an additional organizational chart for each entity. The foreign entity's 
organizational chart identifies only two employees-the beneficiary in the position of director/project 
executive and the director, whose position is depicted as the beneficiary's superior. The chart also lists ten 
departments that were subject to the beneficiary'S supervision: management, manufacture, operations, 
export/import, marketing, finance, networking, customer service, bidding, and administration. The same 
chart shows that the beneficiary'S superior was charged with general oversight of the beneficiary in addition to 
the bidding, advertising, administration, and estimation departments. The beneficiary'S subordinates in the 
foreign position were listed in a separate document and were said to include heads of the management, 
manufacture, operations, and export/import departments. No further mention was made of the remaining six 
departments the beneficiary was claimed to have been overseeing. 
With regard to the U.S. entity's organizational chart, the beneficiary was similarly shown as supervisor often 
departments, including manufacture, operations, export/import, customer service, research, marketing, 
estimation and bidding, advertising and networking, finance, and administration. The beneficiary'S two 
superiors were identified as the director and principal director of the company. The petitioner listed eight 
employees in a separate document, which listed each individual's department and that department's general 
purpose. One of the eight employees was shown as having been tenninated, leaving the company with seven 
employees, four of whom were employed in non-directorial positions. The document indicated that all 
employees are encouraged and required to perform multiple tasks so that any individual can perfonn the tasks 
of an employee who is absent. 
In a decision dated June 21, 2009, the director denied the petition concluding that the petitioner failed to 
establish that the beneficiary was employed abroad and that he would be employed in the United States in a 
qualifYing managerial or executive capacity as statutorily required. The director found the job descriptions to 
be vague and lacking sufficient infonnation regarding the beneficiary'S specific job duties. The director also 
noted that the foreign entity's organizational chart, which was originally submitted in support of the petition, 
Page 5 
differed significantly from the chart that was submitted in response to the RFE, particularly in terms of the 
number of employees the foreign entity had during the time of the beneficiary'S employment. With regard to 
the beneficiary'S proposed position with the U.S. entity, the director observed that only four Form W-2s were 
submitted for 2008, thus indicating that the petitioner had only four employees during the year the petition 
was filed. The director also pointed out that a separate list of employees that pertained to the U.S. entity 
listed a total of seven the beneficiary. Lastly, the director noted a 
pertaining to the employment the while 
Form G-325A indicates that she was employed as a partner from February 2002 
through May 2007, the record of proceeding indicates the qualifyin~ 
entity as the director during the same time period, thus creating a conflict in the type of employment_ 
held prior to the filing of the petition. 
On appeal, counsel challenges the director's conclusions, claiming that the beneficiary'S time in both positions 
has been and would be primarily allocated to tasks of a qualifying nature. Counsel elaborates on this 
assertion by breaking down the statutory definition of executive capacity and pointing to documents in the 
record that establish how the beneficiary meets each of the four statutory criteria. 
After reviewing the evidence of record, particularly the beneficiary'S job descriptions and each entity's 
organizational chart, the AAO concludes that the director's adverse findings were warranted. Although the 
beneficiary's breakdown of job duties was not accompanied by the requested time allocation, the purpose for 
which was to determine the percentage of time that was allocated to the beneficiary's duties abroad and his 
proposed job duties with the U.S. entity, each position breakdown contained sufficient information to enable 
the AAO determine with a considerable degree of certainty that neither the beneficiary's foreign position nor 
his proposed position with the U.S. entity required that the primary portion of the beneficiary'S time be spent 
performing tasks in a qualifying managerial or executive capacity. 
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. § 204.5(j)(5). The significance of a detailed job description is 
supported by published case law, which holds that 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), ajj'd, 905 F.2d 41 (2d. 
Cir. 1990). In the present matter, the beneficiary'S foreign position was said to involve a variety of non­
qualifying tasks, including the following: making arrangements with vendors for supply and delivery of 
merchandise, training staff in office procedure, marketing the foreign entity's products and seeking out 
clientele to sell the products, maintaining contact with vendors regarding supplies, and communicating with 
clients and vendors. As the petitioner did not comply with the RFE, which instructed the petitioner to assign 
a unit of time to each of the tasks the beneficiary performed abroad, the AAO is unable to determine how 
much of the beneficiary'S time was allocated to qualifying versus non-qualifying tasks. While the AAO 
acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or executive-level 
tasks, the burden is on the petitioner to establish that the non-qualifying tasks the beneficiary would perform 
do not require the majority of the beneficiary'S time in his proposed position. See Matter of Brantigan, II 
I&N Dec. 493 (BIA 1966). 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). Without a corresponding time breakdown establishing how much of the beneficiary'S time was spent 
performing each of the above-mentioned non-qualifying job duties, the AAO is unable to conclude that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity, 
Additionally, although the foreign entity's supplemental organizational chart submitted in response to the RFE 
identified the beneficiary at the top of the hierarchy, subordinate only to the company's director, the chart 
appears to be inconsistent with the original chart that was submitted in support of the petition, The more 
recent chart lists numerous departments under the beneficiary'S supervision, including many that were 
previously listed as being under the supervision of other individuals. Furthermore, while the separate list of 
subordinates, which the petitioner to the organizational chart that was provided in 
response to the RFE, indicates that in charge of management, was among the beneficiary's 
subordinates, the original organizational chart clearly depicts this individual at the same level within the 
hierarchy as the himself. In fact, based on the information provided in the original chart, it 
appeared that and the beneficiary both supervised the individuals who were employed in the 
manufacturing, operations and human resources, and the exports/imports departments. As noted previously in 
the director's decision, the petitioner must 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). Counsel's brief does not address the inconsistent information provided in the foreign entity's 
two distinctly different organizational charts. 
Similarly, the supplemental description of the beneficiary'S proposed job duties, which was provided in 
response to the RFE, also indicates that a significant portion of the beneficiary's proposed job description 
consists of non-qualifying tasks, including conducting inventory, listing inventory items electronically, 
communicating with suppliers, couriers, and shipping companies, training staff on office procedure, 
marketing and soliciting clients to purchase the petitioner's products, communicating with old and new 
customers, researching new products, and contacting supply vendors. Although the petitioner supplemented 
the position description with a chart showing an approximate time distribution during the beneficiary's six-day 
work week, not all of the items listed in the chart corresponded with the job duties that were listed in the 
breakdown of job duties. For instance, the chart indicated that the beneficiary would allocate 12% or one 
hour of his time each day to office procedure. However, none of the information provided in the breakdown 
of job duties expressly identified any of the tasks as falling into the heading of "office procedure." Instead, 
the petitioner submitted yet another separate document, which indicates that office procedure includes 
checking the prior day's work, following up on production schedules, assigning tasks to meet schedules, 
multitasking, providing "RFl" responses, and other miscellaneous activities such as staff evaluation, bills and 
invoicing, correspondence, inventory, and scheduling. Again, none of the specific tasks identified in the 
general category of office procedure was assigned a specific time allocation. 
The petitioner also did not explain which job duties fall into the category of "miscellaneous dispatch," which 
would consume another 12% of the beneficiary's time. The chart also indicates that a significant portion of 
the beneficiary's time, or 40%, would be allocated to a combination of marketing, sales, bidding, and 
consultant and client networking. However, without further explanation clarifying how these job duties fit the 
definition of managerial or executive capacity, it appears that three hours of the beneficiary'S time would be 
allocated to non-qualifying operational tasks. Lastly, the AAO notes that there is an inherent flaw in the 
chart's time distribution in that the chart accounts for only five hours, or 64%, of the beneficiary'S time from 
Monday through Friday, It is therefore unclear which tasks would consume the remaining 36% of the 
beneficiary'S time. 
Page 7 
Additionally, the organizational chart submitted in response to the RFE is equally as confusing as the chart 
that was submitted to describe the foreign entity's organizational hierarchy. The U.S. chart similarly identifies 
the beneficiary at a top level within the organization and lists the same ten departments under his general 
supervision. However, as with the foreign entity's chart, the u.S. chart is also unaccompanied by names of 
subordinates who perform the work within these departments and the separate document that lists all of the 
petitioner's employees shows that such employees were divided among the administrative, manufacture, 
export/import, sales, and operation departments. No information was provided to explain who would be 
performing the work of the customer service, research, marketing, estimation and bidding, advertising and 
networking, and the finance departments. 
In summary, the record shows that neither entity's organizational chart nor the description of the beneficiary's 
duties within each entity establishes that the beneficiary was employed abroad or that he would be employed 
in the United States in a qualifying managerial or executive capacity. While no clear determination can be 
made to establish precisely what portion of the beneficiary's time in his position abroad and in his proposed 
position was and would be allocated to the performance of non-qualifYing operational tasks, the burden is on 
the petitioner to establish that the primary portion of his time has been and would be spent performing duties 
within a qualifYing managerial or executive capacity. 
Here, the contradictory organizational charts and inconclusive job descriptions, which failed to specifically 
assign time allotments to individual job duties, preclude the AAO from being able to affirmatively conclude 
that the beneficiary was employed abroad and would be employed by the u.s. entity in a qualifYing 
managerial or executive capacity. While the AAO does not dispute the beneficiary's ability to exercise his 
discretionary authority over the goals, policies, and business decisions within each entity, this is only a single 
element of several that contribute to an overall determination of the beneficiary's eligibility. 
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. § 204.S(j)(S). 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. Based on the analysis provided in this decision, the AAO cannot conclude that the beneficiary's 
position within either entity is one in which the beneficiary primarily performed and would perform tasks 
within a qualifYing capacity. Therefore, on the basis of these two separate conclusions the instant 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.