dismissed EB-1C Case: Business

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: 
JUl 0 3 2012 
INRE: Petitioner: 
Beneficiary: 
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 
OFFICE: TEXAS SERVICE CENTER 
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)(l)(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 in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request can be found at 8 C.F.R. § \03.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § \03.5(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.go,,· 
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 Florida 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 mauager. 
In support of the Form 1-140 the petitioner submitted a statement dated January II, 2010, which contained 
relevant information pertaining to the petitioner's eligibility, including an overview of the petitioner's 
business, the business of its foreign parent entity, and descriptions of the beneficiary's foreign and proposed 
employment. The petitioner also provided supporting evidence in the form of financial and corporate 
documents pertaining to the petitioner and its foreign parent entity. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a notice of intent to deny (NOID) dated April 28, 2010 informing the petitioner 
of various evidentiary deficiencies. Among the issues addressed was the beneficiary's proposed employment 
with the U.S. entity. Specifically, the director determined that the record lacked evidence showing that the 
beneficiary would be employed in the United States in a qualifying capacity. Therefore, the director 
instructed the petitioner to provide a definitive job description with a list of the beneficiary's proposed job 
duties and the percentage of time that would be allocated to each item on the list. The director also asked the 
petitioner to discuss the beneficiary's subordinates, including their respective job titles, job duties, and 
educational levels. 
The petitioner's response included a statement dated May 27,2010 from the petitioner's attorney who listed 
the supporting evidence being submitted with the response. In a statement dated May 26, 2010, the petitioner 
provided a virtually identical job description for the beneficiary as the one that was originally submitted in 
support of the Form 1-140. The petitioner also included job descriptions for its other employees as well as 
photocopies of the IRS Form W-2s that were issued to the petitioner's employees in 2009. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity. The director 
commented on evidence of the petitioner's limited staffing and determined that the petitioner failed to justify 
allocating 30% of the beneficiary's time to managing such a limited staff. Additionally, the director relied on 
the common law definition of the term "employee" in concluding that the petitioner and the beneficiary do 
not have an employer-employee relationship. In light of these adverse findings, the director denied the 
petition in a decision dated August 17, 2010. 
On appeal, counsel submits a brief in which she disputes the grounds for denial and points to supplemental 
documents submitted in support of the appeal. 
The AAO finds that the petitioner has submitted sufficient evidence to overcome the second ground for 
denial. Nevertheless, with regard to the director's conclusion pertaining to the beneficiary's employment 
capacity in his proposed position with the U.S. position, the AAO finds that counsel's assertions are not 
persuasive and fail to overcome the director's denial. The discussion below will provide an analysis of the 
relevant documentation and will explain the underlying reasoning for the AAO's decision. 
Page 3 
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 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)(I )(e) 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 IOJ(a)(44)(A) of the Act, 8 U.S.C. § JlOJ(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 
Page 4 
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. § I 10 I (a)(44)(B), provides: 
The term "executive capacity" means an assigmnent within an organization 1ll 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 counsel's discussion of events that took place or circumstances 
that changed after the petition was fIled are not relevant for the purpose of determining the petitioner's 
eligibility, which must be established based on the facts and circumstances that existed at the time of fIling. 
8 C.F.R. § 103.2(b)(1). 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. 1971). 
Therefore, while the petitioner's hiring of additional staff or improved financial condition may be relevant for 
establishing eligibility in future petitions, such information is not relevant in the present matter and need not 
be considered or addressed. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the beneficiary's proposed job duties. See 8 C.F.R. § 204.5(j)(5). The AAO also 
finds that it is appropriate and often necessary to consider other relevant factors, such as the petitioner's 
organizational hierarchy, which shows the complexity of a given entity and the beneficiary's placement in 
relation to other employees, as well as the petitioner's overall staffing, which allows the AAO to gauge the 
extent to which the petitioner is able to relieve the beneficiary from having to focus the primary portion of his 
time on the performance of non-qualifying operational tasks. 
In the present matter, the AAO finds that there are a number of deficiencies. First, despite the fact that the 
petitioner was issued a NOrD in which the director expressly asked for a supplemental job description, the 
response contained only a job description and percentage breakdown that was virtually identical to the job 
description initially submitted in support of the Form 1-140. Merely resubmitting evidence, which the 
Page 5 
director implicitly deemed deficient by asking for further evidence, is not sufficient and IS generally 
unresponsive to the director's request. 
Furthermore, in reviewing the beneficiary's job description, the AAO finds that the information provided is 
overly general and thus fails to convey a meaningful understanding of the specific tasks the beneficiary would 
perform on a daily basis within the scope of the petitioner's staffmg and organizational hierarchy at the time 
of filing the petition. The petitioner indicated in both job descriptions that the beneficiary would allocate 15% 
of his time to managing his team and directing and coordinating the employees' activities. The petitioner 
failed to specify the actual daily tasks the beneficiary would perform in meeting these general job 
responsibilities. The petitioner was equally vague in stating that another 15% of the beneficiary's time would 
be allocated to making policies and planning, directing, and coordinating U.S. operations. The goal of any 
president of an entity is to make policy and direct operations. It stands to reason that the specific tasks of an 
entity's president would vary, depending on the type of business the entity conducts and the particular 
organizational hierarchy of the entity in question. The petitioner failed to explain what policies the 
beneficiary would formulate or what specific actions he would carry out in managing and coordinating 
operations within the scope of the petitioner's business. Published case law clearly supports the pivotal role 
of a clearly defined job description, 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); 
see also 8 C.F.R. § 204.5(j)(5). Failing to adequately describe the proposed employment precludes the AAO 
from being able to determine whether the position in question is one that is within a managerial or executive 
capacity. 
While the petitioner claimed that 10% of the beneficiary's time would be allocated to supervising departments 
linked to marketing, sales, finance, and accounting, this information cannot be verified when reviewing the 
organizational chart the petitioner provided to illustrate its staffing and hierarchy at the time of filing the 
petition. The petitioner's organizational chart does not show the existence of marketing, sales, finance, and 
accounting departments. While the petitioner planned to hire a sales manager some time in 2010, this 
position was vacant as of February 4,2010 when the petition was actually filed. It is therefore unclear who, 
other than the beneficiary himself, was available to carry out the sales manager's tasks at the time of filing the 
petition. That being said, while the petitioner indicated that 5% of the beneficiary's time would be spent 
supervising product development, the petitioner has not provided information to clarify who would actually 
develop the products. Lastly, the AAO notes that developing marketing strategies and addressing customer 
complaints, all of which are duties assigned to the beneficiary, cannot be deemed as tasks within a qualifying 
managerial or executive capacity. 
Finally, in reviewing the petitioner's staffing, the evidence does not show that the pelltlOner had the 
organizational complexity or the necessary staffmg to relieve the beneficiary from having to allocate the 
primary portion of his time to the performance of non-qualifying operational tasks. While no beneficiary is 
required to allocate 100% of 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. 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). 
Page 6 
While the petitioner originally claimed to have employed a total of six staff members at the time of filing the 
petition, there is no evidence on record to support this claim, as the petition was filed in February 2010 and 
none of the petitioner's tax records indicate whom the petitioner employed at that time. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. MatterofSofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Moreover, the petitioner has not explained why it 
included three waiters in its organizational chart, given that the petitioner identified itself as a food 
distribution business rather than a restaurant. 
In summary, the AAO finds that the record lacks sufficient information and supporting evidence to establish 
that the petitioner was adequately staffed at the time of filing the petition so that the primary portion of the 
beneficiary's time would have been allocated to the performance of job duties within a qualifying managerial 
or executive capacity. Therefore, it cannot be concluded that the beneficiary would be employed III a 
qualifying managerial or executive capacity, and the petition cannot be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 V.S.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.