dismissed EB-1C Case: Business

(b)(6)
DATE: AUG 2 0 2015 
INRE: Petition er: 
Beneficiary: 
FILE#: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S . Citiz enship and Immigration Service: 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave . N.W. , MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Petition: Immigrant Petition for Alien Worker as a Multinational Executiv e or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorr ectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.usci s.gov/ i-290b) contains the latest information on fee, filing 
location , and other requirement s. Please do not mail any motions directly to the AAO . 
Thank you, 
Ron Rosenber~ 
Chief , Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal was rejected as untimely filed and 
the petitioner subsequently filed a motion to reopen and reconsider. In light of new evidence submitted, we 
hereby grant the petitioner's motion in order to give this matter full consideration on the merits presented in 
the record. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its chief executive. 
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. 
The director determined that the petitioner did not establish that the beneficiary would be employed in the 
United States in a qualifying 
managerial or executive capacity and denied the petition on that basis. 
On appeal, counsel disputes the director's decision dismissing the motion, contending that the decision to 
deny the petition is contradictory to U.S. Citizenship and Immigration Services' (USCIS') prior decisions to 
grant the petitioner's original a:nd two extension L-1 petitions. Counsel focuses on the additional documents 
the petitioner submitted in support of the motion. 
I. The Law 
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 the 
alien 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 
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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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 110l(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) of the Act, 8 U.S.C. § 110l(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. 
(b)(6)
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II. Facts and Procedural History 
The record shows that the petition was filed on February 17, 2012 and was accompanied by the petitioner's 
supporting statement , dated January 15, 2012 , in which the petitioner described the nature of its business, the 
basis of its relationship with the beneficiary's former employer abroad, and the beneficiary's duties and 
responsibilities in his proposed position with the U.S . entity. The petitioner also provided corporate, 
financial, and busi ness documents pertaining to the U.S. and foreign entities. 
On May 18, 2012, the director issued a request for evidence (RFE), informing the petitioner that the record 
Jacke d sufficient evidence to meet certain eligibility requirements. Among the eligibility factors addressed in 
the RFE were the beneficiary's proposed employment with the petitioning entity. The director found that the 
petit ioner had not submitted evidence to support the claim pertaining to the number of employees it had at the 
time of filing or to establish that the job duties the beneficiary would perform would be primarily within a 
qualifying managerial or executive capacity. Accordingly, the petitioner was instructed to provide payroll 
information pertaining to its employees, that included the employees' job descriptions and job titles, and to 
state whether the emp loyees work on a part- or full-time basis. 
In response, the petitioner provided payroll documents and tax documents establishing precisely whom it 
employed at the time of filing and the wages those employ ees received. The petitioner also provid ed a copy 
of its organizational chart naming the empl oyee s who wer e already working and indi cating which positions 
remained to be filled. In addition, the petition er provided several business contracts naming the beneficiary as 
the main contact person in eac h of the petitioner's purc hase transa ctions as well as a supplemental job 
description listing the benefici ary's key job responsibilities. 
After reviewing the record the director determined that the petitioner did not provid e s ufficient evidence to 
estab lish that the beneficiary would be employed in a qualifying manageri al or executive capacity. Therefore , 
the director issued a decision dated August 31, 2012, denying the petition. 
III. Issue on Appeal 
As indicated above, the prim ary issue to be addressed in this proceeding is whether the petitioner provided 
sufficient evidenc e to establish the ben eficia ry's proposed employment with the U.S. entity would be 
prim arily comprised of tasks within a qualifying manageri al or executive capacity. 
In general , when exa mining the executive or managerial capacity of a given position , we review the totality of 
the record, starting first with the description of the beneficiary's proposed job duties. See 8 C.F.R. 
§ 204.5(j)(5). Published case law has determined that the duties themselves will reveal the true nature of the 
benefic iary's 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) . We then consider the beneficiary's job description in the context of other 
relev ant evidenc e to determine which employees compri se the petitioner's organizational hierarchy, what 
duti es they carry ou t, and who within the organization was available to relieve the benefici ary from having to 
carry out the daily operational tasks at the time the petition was filed. As such, the petitioner's org anizational 
chart and evidence of employee salaries are both highly relevant in helping to establish the petitioner' s ability 
(b)(6)
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to support the benefici ary in a position where the primary portion of his time would be allocated to tasks of a 
managerial or executiv e nature. 
Turning first to the beneficiary's job description, we note that the beneficiary would allocate between ten and 
twenty hours of his time to various non-qualifying tasks, such as developing new business opportunities, 
conducting market and product research , and researching customers and their needs . We find that the 
underlying sales, marketi ng, and customer service natur e of these tasks is operational rather than executive or 
managerial. In addition, while the petitioner claimed that the benefici ary would "[s]upervise office 
procedures and pers o nnel including sales and clerical staff," the record shows that at the time of filing the 
beneficiary's only two s ubordinates included an accounts officer and a financial manager. Based on the job 
descriptions the petition er provided for these two emp loyees in its RFE response , neither can be deem ed as 
eit her a sales or clerical emp loyee. In fact, while the accounts officer's job description indicates that he would 
serve as a point of contact for customers and support an outside sales team, there is no indication that an 
accounts officer is a sales position and the petiti o ner provided no evidence to estab lish the existence of an 
outside sales team, which is referenced in the accounts officer's position. Desp ite the petitioner's claim that it 
is currently seeking to fill an executive secretary position, the record indicates that the position was vacant 
when the petition was filed . 
The petitioner also indicated that the beneficiary wou ld allocate ten hours weekly to creating and monitoring 
financial policies, budg ets, and costs. However , the petitioner did not provide any information as to the 
specif ic policies that the beneficiary has created thus far or discussed the underlying tasks of creating budgets. 
The vague nature of the petitioner's statements does not convey a meaning ful understanding of the actual 
tasks to be performed or what managerial or executive characteristics are inherent to the unknown tasks. 
Next, we turn to the petitioner's staffing at the time of filing. While the petitioner objects to the director's 
foc us on the size of the petitioner's personnel and the employees' respective wages, we find both factors to be 
relevant in determining the petitioner's eligibility in this instance, as they allow us to gauge the petitioner's 
abil ity to relieve the beneficiary from having to prim arily engage in the daily operational tasks that would be 
deemed as non-quali fyi ng. If the petitioner does not establish the existence of an adequate support staff, we 
ca n only conclude that the beneficiary would be required to assist with daily operational tasks and thus would 
not be able to spend his time primarily performing qualifying managerial or executive tasks. In the present 
matter , the record shows that the petitioner had a total of three employees, including the beneficiary, at the 
time of filing. 
A review of the empl oyee payroll document s indicates that two of the employees were employed on a 
part-time basis. While the petitioner asserts that the iss ue of whether the support personnel work on a full- or 
part-time basis is irrelev an t, this assertion is incorr ec t. Information pertaining to the petitioner's support staff, 
including the hours they work and the duties they perform, is highly relevant in determining the means by 
which the petitioner plans to support the beneficiary in an executive or manageri al or executive capacity . If 
the petitioner has few employees who provide their services on a limited part-tim e basis, it is reasonable for 
us to question the petiti oner's ability to relieve the beneficiary from having to allocate his time primarily to the 
performance of non-qualif ying operational and administrative tasks. Her e, the evidence does not establish 
that the petitioner can support the benefici ary in a qualifying managerial or executive capacity with the 
(b)(6)
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limited support staff it employed at the time the petition was filed. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec . 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r 1972)). While the petitioner provided an organizational chart outlining its 
hiring plans, a petitioner must establish eligibility at the time of filing; a petition cannot 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'r 1971). As such, the petition er's plan to hire additional emp loyees is irrelevant 
to the issue of establishing the petitioner's ability to employ the beneficiary in a qualifying managerial or 
executive capacity at the time of filing. 
On appeal, the petitioner cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.S (5th Cir. 1989), 
and Mars Jewel ers, Inc. v. INS, 702 F.Supp. 1570 , 1574 (N.D. Ga . 1988), to stand for the proposition that the 
small size of a petitioner will not, by itself , undermine a finding that a beneficiary will act in a primarily 
manage rial or executive capacity . First, we note that the petitioner has not furnished evi dence to establish that 
the fact s of the instant petition are analogous to those in National Hand Tool Corp., where the Fifth Circuit 
Court of Appe als decided in favo r of the legacy Immigr ation and Naturalization Service (INS), or Mars 
Jewelers, Inc., where the district court found in favor of the plaintiff. With respect to Mars Jewelers, we are 
not bound to follow the published decision of a United States district court in matters arising within the same 
district. See Matt er of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district 
judg e's decision will be given due consideration when it is properly befor e us, the analysis does not have to be 
followed as a matter of law. !d. at 719. 
In both National Hand Tool Corp. and Mars .Jewelers, Inc., the courts emp hasized that the former INS should 
not place undu e emp hasis on the size of a petitioner's busin ess operation s in its review of an alien's claimed 
manager ial or executive capacity. We have long int erpreted the regulations and statute to prohibit 
discri mination against small or medium-siz e businesses. However , consistent with both the statute and the 
holding of National Hand Tool Corp., we have requir ed the petition er to establi sh that the beneficiary's 
position consists of primarily managerial or executive duties and that the petition er will have sufficient 
perso nnel to reli eve the bene fic iary from perfor ming oper ational and/or administrative tasks. Like the court 
in National Hand Tool Corp., we emphasize that our holding is based on the conclusion that the beneficiary is 
not primarily perfo rming manage rial dutie s; our decision does not rest on the size of the petitioning entity. 
889 F.2d at 1472 , n.S. 
Finally, we note that the petiti oner's organizational chart illustrates a seven-person hier arc hy, which includes 
two managerial positions and an executive sec retary directly subordinate to the beneficiary, as well as an 
accounts offic er and two deliv er people subordinate to the business development manager. However, the 
reco rd shows that four of thos e positions - the business development manager, executive secretary, and two 
deliv er people- were vacant at the time the petition was fi led . It is therefore possibl e, and even likely , that 
the beneficiary, in the absence of a number of support employees, would ass ume the various non-qua lifying 
tasks that would otherwise be assig ned to the positions that were vacant at the time of filing. Regardless, the 
petitioner did not establish that the staffing composition that was in plac e at the time of filing was sufficient to 
warra nt employing the benefici ary in a capacity where the primary portion of his time would be spent 
perfo rming task s of a manag erial or executive nature. Whil e no ben eficiary is required to allocate 100% of 
(b)(6)
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his time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
. beneficiary would perform are only incidental to the proposed position. As previously indicated, 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). 
Accordingly, in light of the deficient job description that does not reflect the petitioner's limited staffing at the 
time of filing, we cannot conclude that the petitioner was capable of employing the beneficiary in a qualifying 
managerial or executive capacity at the time of filing and on the basis of this conclusion the instant petition 
cannot be approved. 
IV. Conclusion 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende , 26 I&N Dec. 127, 128, (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.