dismissed EB-1C Case: Business

identifYing data deleted to 
prevent cleariy unwarranted 
invasion of personaJ privacy 
PUBUCCOpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
TEXAS SERVICE CENTER 
U.S. Departmeot 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 
JAN 13 2011 Date: 
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. § I I 53(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, 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. 
rry Rhew 
Chief, Administrative Appeals Office 
www.uscls.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 limited liability company organized in the State of Georgia. The petitioner seeks to 
employ the beneficiary as president of its organization. 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. § 1153(b)( 1 l(c), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to 
establish that the beneficiary would be employed in the United States in a managerial or executive capacity; 
and 2) the petitioner failed to establish that it has a qualifying relationship with the beneficiary's foreign 
employer. The petitioner challenges both bases of the director's decision on appeal. The petitioner also 
submits additional documentation. 
After reviewing the documentation submitted on appeal, the AAO finds that the petitioner has submitted 
sufficient documentation to establish that it is more likely than not that a qualifying relationship exists 
between the petitioner and the foreign entity and that the petitioner has therefore overcome the second ground 
that was cited as a basis for denial. As such, the remainder of this discussion will focus on the arguments and 
supporting evidence that address the beneficiary's prospective employment with the U.S. petitioner. 
Section 203(b) ofthe 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 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. 
Page 3 
The primary issue in this proceeding is whether sufficient evidence was submitted to establish that the 
beneficiary would be employed by the u.s. petitioner in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § IIOI(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) ofthe 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. 
On August 10,2009, the petitioner filed the Form 1-140 showing that the petitioner had four employees at the 
time of filing. The petitioner also provided an addendum to the Form 1-140 which included the following 
nontechnical job description for the beneficiary's proposed position: 
Page 4 
As President, the beneficiary's initial task will be the overall management of the corporation. 
In furtherance of this assignment, she will be responsible for corporate policy making and 
setting corporate goals and directions; allocat[ing] resources, utilizing the strategic plan. She 
determines the range of products for full production, business development, production 
systems and procedures development as well as form alliances and negotiate[s] contracts and 
facilitate[s] contracts. Hire and instruct senior level professionals and officers for the 
company, determinate [sic] their compensations, [and] terminations. 
The record does not include further supporting information or documentation. Accordingly, on October 21, 
2009, the director issued a notice of intent to deny the petition (NOlO), notifYing the petitioner of various 
grounds for the intended denial. The beneficiary's proposed employment with the U.S. entity was among the 
issues addressed in the NOlO. Specifically, the director instructed the petitioner to provide evidence 
establishing that the job duties the beneficiary will perform fit the statutory criteria for managerial or 
executive capacity. The director also asked the petitioner to assign a breakdown of time to the beneficiary's 
proposed job duties. 
In response, managing director of the petItIOning entity, submitted a letter dated 
November 19,2009 on behalf of the petitioner. 'led to provide a time breakdown or list of 
the beneficiary's proposed job duties. Instead, discussed the beneficiary's discretionary 
authority over all company operations and the minimal direction the beneficiary would take from the foreign 
entity's board of directors. She also stated that the beneficiary supervises managers and makes all decisions 
with regard to the hiring of financial and legal advisers. 
Additionally, the petitioner provided a chart illustrating its organizational hierarchy. The beneficiary is 
depicted as the leader of the organization in the position of president and CEO. The chart depicts an assistant 
manager and an accounts manager as the beneficiary's two direct subordinates, and an administrative support 
employee and a development/warehouse manager as the assistant manager's two subordinates. The remainder 
of the chart shows a territory sales assistant, a warehouse supervisor, and a warehouse helper and three 
installers/delivery employees as the warehouse supervisor's subordinates. 
After reviewing the petitioner's submissions, the director determined that the petItIOner did not submit 
sufficient evidence to warrant approval of the Form 1-140 and thus issued a decision dated January 28, 20 I 0 
denying the petition. The director found that the broad set of job responsibilities that the petitioner provided 
failed to convey a meaningful understanding of the beneficiary's daily job duties. The director also found, 
based on his examination of a material quote invoice, which listed the beneficiary as a sales person, and an 
email, in which the beneficiary discussed a purchase order, that the beneficiary would not primarily perform 
tasks of a managerial or executive nature. This determination was also based on the petitioner's staffing, 
which the director found to be too limited to relieve the beneficiary from having to primarily perform non­
qualifYing operational tasks. 
On submits a letter dated February 12,2010 on behalf of the petitioner stating that the 
position of president involves a broad range of job duties. She then goes on to illustrate the beneficiary'S role 
of authority by listing the various discretionary decisions that the beneficiary has made in her position as the 
company's president. 
Page 5 
While the AAO appreciates the type of authority the beneficiary exercises daily as the petitioner's top-most 
employee, the beneficiary's position placement within the petitioner's hierarchy and her discretionary 
authority are only two of the factors that are considered in determining whether the beneficiary merits the 
classification of multinational manager or executive. 
In examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). 
As previously explained in the director's decision, a detailed description of the beneficiary's specific job 
duties is crucial, as the actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajj'd, 905 F.2d 41 (2d. Cir. 1990). The detailed job 
description must then be considered 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. In the present matter, the description of the beneficiary's job duties and the 
overall organizational hierarchy itself do not support a favorable conclusion. 
First, with regard to the job description, the AAO notes that the information provided is extremely vague in 
that it lacks any discussion of the beneficiary's actual daily tasks and thus is extremely limited in its probative 
value. The need for a detailed description of job duties was duly conveyed in the Nom where the director 
instructed the petitioner to provide a supplemental job description as well as a breakdown of time the 
beneficiary would spend performing her assigned tasks. However, as noted herein, the petitioner's response 
did not specifY actual daily tasks and thus precluded USClS from gaining the necessary insight to determine 
whether the primary portion of the beneficiary's time would be allocated to job duties within a managerial or 
executive capacity. 
Second, with regard to the beneficiary's organizational hierarchy, the AAO finds that the evidence is 
inconclusive as to who was available at the time of filing to provide the operational tasks necessary for the 
petitioner's daily function and thus to relieve the beneficiary from having to spend the primary portion of her 
time on non-qualifYing job duties. According to the information provided in the petitioner's Form 1-140, the 
petitioner had a total of four employees, presumably including the beneficiary herself, at the time of filing. 
However, the organizational chart that was submitted in response to the NOlO suggests a vast departure from 
a four-person organization. While it is plausible that the organization experienced a staffing expansion since 
the Form 1-140 was filed, the petitioner did not provide any explanation to account for the considerable 
discrepancy between the information offered at Part 5, No.2 of the Form [-140 and the organizational chart. 
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). The AAO further notes that the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). Thus, even if the petitioner were to resolve what the AAO perceives as an inconsistency by 
establishing that the organizational chart reflects new hires that took place after the Form 1-140 was filed, the 
record nevertheless lacks sufficient evidence to establish that an organization that had only four employees at 
the time of filing the Form 1-140 was capable of relieving the beneficiary from having to primarily perform 
non-qualifYing tasks. 
Page 6 
While the AAO acknowledges that no beneficiary is required to allocate 100% of her time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualitying tasks the beneficiary would 
perform are only incidental to her 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 record in the present matter does not clearly 
delineate the beneficiary's proposed job duties nor establish that the petitioner either required or was able to 
support an employee in a managerial or executive capacity pursuant to section 203(b)( I )(C) of the Act. 
Therefore, in light of these findings, the AAO concludes that the petitioner failed to establish that the 
beneficiary'S proposed employment would be within a qualifying managerial or executive capacity and on the 
basis of this initial finding of ineligibility, the AAO cannot approve the instant petition. 
Furthermore, the record does not support a finding of eligibility based on two additional grounds that were not 
previously addressed in the director's decision. 
First, the AAO finds that the petitioner failed to establish that the beneficiary meets the requirements 
specified at 8 C.F.R. § 204.5(j)(3)(i)(B), which states that the petitioner must establish that the beneficiary 
was employed abroad in a qualitying managerial or executive position for at least one out of the three years 
prior to her entry to the United States as a nonimmigrant to work for the same employer. Second, the AAO 
finds that the petitioner failed to establish that it comports with provisions at 8 C.F.R. § 204.5(j)(3)(i)(D), 
which states that the petitioner must establish that it has been doing business for at least one year prior to 
filing the Form 1-140. 
With regard to the first issue of the beneficiary'S employment abroad, the petitioner provided a general job 
description that defined the past employment using broad terminology. The petitioner also failed to provide 
the requested time breakdown as requested in the NOID. 
Turning to the issue of the petitioner's "regular, systematic, and continuous provision of goods and/or services," 
the record does not establish that the petitioner was doing business during the requisite one-year time period prior 
to the date the Form 1-140 was filed. See 8 C.F.R. § 204.5(j)(2)1 
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 (ED. 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 grounds of ineligibility discussed above, this 
petition cannot be approved. 
I The AAO further notes that, while not included in the record of proceeding, documents found through the State of 
Georgia Secretary of State, Corporations Division show that the petitioner was dissolved/revoked on May 16. 2008 for 
failure to file its annual registration. The documentation further shows that the petitioner was not reinstated until January 
21, 2009. While this information will not be used to formulate the basis of an adverse finding, it further indicates that 
the petitioner may be ineligible for the immigration benefit sougbt due to its possible failure to comply with the one-year 
of doing business requirement as cited at 8 C.F.R. § 204.5(j)(3)(i)(D). 
Page 7 
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.