dismissed EB-1C Case: Business

i!!eatifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: MAR 30 Z012 OFFICE: TEXAS SERVICE CENTER 
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 
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 
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 general manager/director. 
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 statement dated June 2, 2009 indicating that the 
petitioner had eight employees, and numerous corporate, financial, and business documents pertaining to the 
U.S. petitioner and the beneficiary'S foreign employer. 
The director reviewed the supporting documents and determined that the petitioner did not provide sufficient 
evidence to establish eligibility for the benefit sought. The director therefore issued a notice of intent to deny 
dated July 31, 2009, instructing the petitioner to provide job descriptions listing the beneficiary's job duties 
with the foreign entity and his proposed duties with the U.S. entity, the percentage of time the beneficiary 
spent and would spend performing each of his listed duties, and evidence showing that the U.S. entity has 
been doing and continues to do business in accordance with regulatory requirements. 
The petitioner's response included one statement from counsel and two statements executed by the 
beneficiary in his capacity as general manager of the foreign entity and U.S. petitioner, respectively. All three 
statements were dated August 28, 2009 and discussed the beneficiary'S job duties and responsibilities in his 
position abroad as well as in his proposed position with the petitioning entity. The petitioner also provided 
copies of numerous emails between the petitioner and its foreign parent entity. It is noted that a significant 
number of the emails are not accompanied by English language translations. As the AAO cannot determine 
whether the untranslated evidence supports the petitioner's claims, such evidence is not probative and will not 
be accorded any weight in this proceeding. See 8 C.F.R. § 103.2(b)(3). 
In a decision dated March 2, 2010, the director determined 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 also determined that the petitioner failed to establish that it had been doing business for at least one 
year prior to filing the petition. The director therefore denied the petition based on these two grounds of 
ineligibility. 
On appeal, the petitioner submitted a supplemental statement dated April 1,2010 discussing the beneficiary's 
job duties in his positions with the U.S. and foreign entities. The petitioner also provided updated tax 
documentation, its balance sheet for 2009, another version of its organizational chart, and photographs of its 
business premises. 
The AAO finds that the supplemental evidence is not persuasive and fails to overcome the director's denial. 
It is noted that the petitioner's submissions have been reviewed and all relevant documentation will be fully 
addressed in the discussion below. 
Section 203(b) of the Act states in pertinent part: 
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(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 flrm or 
corporation or other legal entity or an afflliate 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 afflliate 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 afflliate or subsidiary. 
A United States employer may me a petition on Form 1-140 for classiflcation 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 fust issue to be addressed in this proceeding is the benefIciary'S employment capacity in his proposed 
position with the U.S. entity. SpecifIcally, the AAO will examine the record to determine whether the 
petitioner submitted sufflcient evidence to establish that the beneflciary 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 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 
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(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. § 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. 
In examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) considers a variety of factors, including descriptions of a beneficiary'S job duties and the 
duties and educational credentials of his or her subordinate employees, the beneficiary'S organizational 
placement with regard to other employees, the nature of an employer's business, and any other facts 
contributing to a complete understanding of the beneficiary'S employment capacity in the position in question. 
In the present matter, the focus is on the beneficiary'S proposed position with the petitioning entity. After 
having reviewed the job descriptions provided throughout this proceeding, the AAO finds that the petitioner 
has failed to establish that the beneficiary's time would be primarily allocated to tasks of a qualifying 
managerial or executive nature. 
As a preliminary matter, the AAO notes that any time the beneficiary spends providing services for the 
foreign entity will not be considered as it is irrelevant for the purpose of determining the employment 
capacity of the proposed position. While the beneficiary is not precluded from continuing to carry out duties 
that will help him meet his assigned responsibilities with the foreign entity, such duties are carried out for the 
benefit of a separate entity. Only those job duties the beneficiary would carry out in his proposed position as 
the petitioner's general manager will help to determine whether the beneficiary would be employed in a 
qualifying managerial or executive capacity. 
Based on the supplemental job description provided in the petitioner's statement on appeal, it appears that the 
beneficiary would spend 42 hours per week providing services for the petitioning entity. Of those 42 hours, a 
significant portion of the beneficiary's time would be spent carrying out non-qualifying tasks, such as 
networking to market the petitioner's products and services to new clients, traveling to meet with prospective 
clients, contacting and negotiating contracts with local suppliers, complying with legal requirements, and 
securing financing. Additionally, while the petitioner indicated that the beneficiary would delegate duties to 
Page 5 
the warehouse manager and oversee the warehouse manager in his execution of management tasks, the record 
shows that at the time the petition was filed, the petitioner did not employ a warehouse manager and in fact 
had a staff that was comprised of four employees total, including the beneficiary. It therefore stands to reason 
that in the absence of the warehouse manager, the beneficiary would be the one to oversee and supervise the 
non-professional warehouse employees whom the petitioner's organizational chart listed as subordinates of 
the warehouse manager. 
While the AAO acknowledges that 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 would only be incidental to his proposed position with the petitioning entity. 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). 
In the present matter, neither the beneficiary's job description nor the organizational hierarchy that the 
petitioner had in place at the time the petition was filed indicate that the petitioner was able to employ the 
beneficiary in a primarily managerial or executive capacity. While the petitioner may eventually progress to a 
stage of development where it would acquire the capability to relieve the beneficiary from having to allocate 
so much of his time to marketing, sales, and general administrative tasks, the record indicates that the 
petitioner had not reached that stage of development as of the date the instant petition was filed. 
In light of the above, the AAO finds that the petitioner failed to establish that the beneficiary would be 
employed in a qualifYing managerial or executive capacity and on the basis of this fmding, the instant petition 
cannot be approved. 
The other issue to be addressed in this proceeding is whether the petitioner provided sufficient evidence to 
establish that it meets the eligibility criteria discussed at 8 C.F.R. § 204.5(j)(3)(i)(D), which states that the 
petitioner must show that it has been doing business for at least one year prior to filing the Form 1-140. The 
regulation at 8 C.F.R. § 204.5(j)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office. " 
The record shows that the director acknowledged the petitioner's submission of the emails between the petitioner 
and the foreign entity, and evidence of office space and equipment being rented so that the petitioner would be 
able to do business. The director also determined that utility bills and evidence showing the payment of the 
beneficiary's wages are also not sufficient to establish that the petitioner has been doing business. The director 
informed the petitioner that in order to show that the company had been doing business for one year prior to filing 
the petition, it must provide evidence of actual business transactions between the petitioner and a third party. 
The earliest sales invoice issued during the one-year time period commencing June 2008 was an invoice from 
November 2008. The petitioner provided no evidence of any business transactions from June through October 
2008. Although the petitioner supplemented the record on appeal with a 2009 tax return and balance sheet, 
neither of these documents is sufficient to establish that the petitioner was conducting business on a "regular, 
systematic, and continuous" basis during the relevant one-year time period. See id. 
, , , , 
Page 6 
In light of the above, the AAO fmds that the petitioner failed to provide evidence to show that it meets the criteria 
cited in 8 c.P.R. § 204.SG)(3)(i)(D) and on the basis of this second adverse fmding, 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.