dismissed EB-1C Case: Business

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PUBLIC 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 
DATE: APR 0 6 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(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. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 a New York 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)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational 
executive or manager. 
In support of the Form 1-140 the petitioner submitted a brief statement dated July 17, 2009 along with the 
petitioner's corporate documents, its financial and bank statements, a variety of business invoices, and 
numerous documents pertaining to the foreign entity's finances, organizational structure, and business 
activities. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated September 21, 2009 asking the 
petitioner to establish how the beneficiary would be able to devote the primary portion of his time to 
managerial or executive tasks given the petitioner's two-person staff. The director instructed the petitioner to 
provide a more detailed description of the beneficiary's proposed employment by providing job titles and job 
descriptions of all employees the beneficiary would supervise. The petitioner was also asked to provide a 
more specific description of the beneficiary'S foreign employment similarly discussing the job titles and job 
descriptions of the beneficiary'S subordinates abroad. 
The petitioner provided a response statement dated October 21, 2009 along with supporting evidence. The 
petitioner's statement included a percentage breakdown of the components that would comprise the 
beneficiary's proposed employment. The petitioner also provided job descriptions for three additional 
employees-a vice president of marketing and sales, a budget and administrative services manager, and a 
sales and billing clerk. The statement also included an hourly breakdown of the job duties the beneficiary 
carried out during his employment abroad. Additionally, the petitioner provided supporting evidence, 
including the petitioner's organizational chart showing its current staffing, wage and tax documents, and 
evidence of the petitioner's business transactions, such as invoices and shipping documents. With regard to 
the foreign entity, the petitioner provided financial documents, the foreign entity's organizational chart, and 
evidence of business transactions. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity or that the beneficiary would be 
employed in such a capacity in the United States. The director therefore issued a decision dated February 9, 
2010 denying the petition. The director weighed the beneficiary's U.S. job description in the context of the 
petitioner's staffing and determined that the petitioner failed to establish that it had the support staff necessary 
to relieve the beneficiary from having to allocate his time primarily to the performance of non-qualifying 
tasks. With regard to the beneficiary's employment abroad, the director determined that the information 
provided lacked specificity and was therefore insufficient to establish that the beneficiary was employed 
abroad in a qualifying managerial or executive capacity. 
On appeal, counsel submits a brief in which he disputes the denial, contending that the director failed to 
properly consider the supporting evidence submitted by the petitioner. Counsel restates the job descriptions 
provided by the petitioner in response to the RFE and contends that the petitioner uses independent 
Page 3 
contractors, such as accountants and graphic designers, whom the beneficiary oversees. Counsel asserts that 
the petitioner seeks to obtain manufacturer representatives and retailers to help distribute its products and 
further states that the petitioner's staffing since inception has been tailored to address its reasonable needs at 
various stages of development. 
The AAO fmds that the petitioner has provided sufficient evidence to overcome the director's finding with 
regard to the beneficiary's employment with the foreign entity and the finding is therefore withdrawn. 
Notwithstanding the withdrawal of one of the director's adverse fmdings, the AAO nevertheless concludes 
that counsel's arguments regarding the beneficiary's proposed employment are not persuasive and fail to 
overcome the denial with regard to the beneficiary's proposed employment. It is noted that the petitioner's 
submissions have been reviewed and all relevant documentation will be fully addressed. 
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)(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 primary issue to be addressed in this proceeding is the beneficiary's employment capacity in his proposed 
position with the petitioning U.S. entity. Specifically, the AAO will examine the record to determine 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. 
Section 101 (a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
Page 4 
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 10 I (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 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. 
As a preliminary matter, the AAO notes that both counsel's and the petitioner's references to the benefIciary's 
proposed position as "manageriaVexecutive" or managerial and executive is confusing. The petitioner does 
not clarify whether the benefIciary is claiming to be primarily engaged in managerial duties under section 
101 (a)(44)(A) of the Act, or primarily executive duties under section 10 I (a)(44)(B) of the Act. A benefIciary 
may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two 
statutory defInitions. If the petitioner chooses to represent the benefIciary as both an executive and a 
manager, it must establish that the benefIciary meets each of the four criteria set forth in the statutory 
defInition for executive capacity and the statutory defInition for managerial capacity. 
PageS 
The statutory definition of the term "managerial capacity" focuses on the beneficiary's role with respect to 
subordinate employees or, if the beneficiary does not manage subordinates, with respect to a function that the 
beneficiary manages within an organization. The managerial, supervisory, or professional nature of the 
beneficiary's subordinates and .the essential nature of the function the beneficiary manages, depending on 
whether the beneficiary is a personnel or a function manager, are key aspects of managerial capacity. Section 
101(a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(44)(A). In managing employees, the beneficiary must have 
discretionary authority over hiring and firing or, where no subordinates are managed, the beneficiary must 
show top placement within an organizational hierarchy or with respect to the function managed. Section 
101 (a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). !d. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1101(a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-day operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" 
the enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." !d. 
Here, the record shows that the petitioner had no more than two employees at the time the petition was filed, 
thus leading the director, and the AAO, to question who within the petitioning entity was performing the non­
qualifying operational tasks that were necessary for the petitioner to carry on its business. Although counsel 
claims that the petitioner uses the services of contract labor and refers to an unpublished decision in which the 
AAO determined that the beneficiary met the requirements for L-1 classification even though he was the sole 
employee, counsel has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in the unpublished decision. The record shows no evidence to corroborate the claim that the petitioner 
has been using contract labor to relieve the beneficiary from having to primarily perform non-qualifying 
tasks. 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. 
Additionally, counsel contends that the director's reliance on the petitioner's limited support staff is an 
indication that the director failed to take into account of the petitioner's reasonable needs. Counsel's 
argument, however, is not persuasive as the petitioner's reasonable needs will not supersede statutory 
provisions, which require the petitioner to establish that it has the ability to employ the beneficiary in a 
managerial or executive capacity at the time of filing. Section 203(b)(1 )(C); see also Matter of Katigbak, 14 
I&N Dec. 45, 49 (Comm. 1971). Despite counsel's assertions, the petitioner's staffing size can and should be 
considered as a means of gauging the petitioner's capability to relieve the beneficiary from having to 
primarily perform non-qualifying tasks. While a detailed job description is admittedly one key factor that the 
AAO considers in determining a beneficiary's managerial or executive capacity, it must be noted that even in 
instances where the petitioner provides a job description complete with primarily qualifying tasks, the job 
description by itself is meaningless if the organization that seeks to hire the beneficiary lacks the human 
resources to carry out the daily operational tasks thus allowing the beneficiary to focus on those tasks that are 
primarily within a qualifying managerial or executive capacity. 
Page 6 
While the petitioner claims to have employed two individuals at the time the Form 1-140 was filed, the 
petitioner's quarterly wage reporting statement for the third quarter of 2009 shows that the petitioner had only 
one employee in July of 2009 when the petition was filed. The AAO notes that this document is at odds with 
the petitioner's claim and with the petitioner's internally generated pay stubs, which indicate that the 
petitioner paid a total of three employees in July 2009 when the petition was filed. 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). In light of 
these discrepancies it remains unclear how many people the petitioner employed at the time of filing the 
petition, who was performing the petitioner's daily operational tasks at the time of filing the petition, and how 
the beneficiary would not have had to allocate the primary portion of his time to non-qualifying operational 
tasks. 
No beneficiary is required to allocate 100% of his time to managerial- or executive-level tasks, but the 
petitioner must establish that the non-qualifying tasks the beneficiary would perform are only incidental to the 
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 petitioner has not provided sufficient evidence to establish that at the time of filing the petitioner 
was able to ensure that the beneficiary would not have had to primarily perform tasks that are necessary to 
produce a product or to provide services. 
The AAO further notes that the petitioner provided an overly generalized job description, which emphasizes 
the beneficiary'S policy-making and managerial roles while failing to acknowledge the petitioner's extremely 
limited support staff. It is unrealistic, given the petitioner's organizational hierarchy, for the petitioner to 
assert that the beneficiary'S duties would focus primarily on developing and establishing goals and policies, 
directing the financial plan and making long-term business plans, conferring with and managing managerial 
employees, and making executive decisions. 
In light of the AAO's analysis of the evidence of record, the AAO cannot conclude that the petitioner has 
submitted sufficient evidence to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. For this reason, the instant petition cannot be approved. 
Additionally, while not previously addressed in the director's decision, the AAO finds that the petitioner 
failed to establish that it has a qualifying relationship with the beneficiary'S foreign employer. The regulation 
and case law confirm that ownership and control are the factors that must be examined in determining 
whether a qualifying relationship exists between United States and foreign entities for purposes of this visa 
classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of Siemens 
Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
The record lacks consistent evidence establishing the petitioner's ownership. Specifically, while the stock 
certificate the petitioner issued on March 6, 2007 shows that the foreign entity owns 200 of the petitioner's 
outstanding shares, the petitioner's 2008 tax return at Schedule E identifies the beneficiary himself as the 
owner of all of the petitioner's common stock. These two documents are not consistent with one another and 
thus cannot be used as reliable evidence establishing the identity of the petitioner's owner(s). See Matter of 
Page 7 
Ho, 19 I&N Dec. at 591-92 (Establishing that the petitioner must resolve inconsistencies in the record by 
submitting independent objective evidence.) 
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), aff'd, 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 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.