dismissed EB-1C Case: Business

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pflvacy 
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: OFFICE: NEBRASKA SERVICE CENTER 
FEB 2 1 2012 
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, 
(j~.h 
- PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Colorado corporation that seeks to employ the beneficiary as a multinational manager. 
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 beneficiary submitted a statement dated September 4, 2009, which included 
job descriptions pertaining to his foreign and proposed employment as well as other relevant information 
regarding the petitioner's eligibility for the immigration benefit sought. The petitioner also provided 
supporting evidence, including the petitioner's financial and corporate documents and organizational charts 
showing the beneficiary's placement in the foreign entity's and U.S. petitioner's respective company 
hierarchies. 
After reviewing the record, the director determined that the petition did not warrant approval based on the 
following grounds: 1) the petitioner failed to establish that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity; 2) the petitioner failed to establish that the petitioner would 
employ the beneficiary in the United States in a qualifying managerial or executive capacity; and 3) the 
petitioner failed to establish that it has an employer-employee relationship with the beneficiary. The director 
therefore issued a decision dated December 8, 2009 denying the petition. 
Counsel, on behalf of the petitioner, filed a timely appeal disputing the denial and contending that U.S. 
Citizenship and Immigration Services (USCIS) failed to issue a request for additional evidence prior to 
ultimately denying the petition, thus denying the petitioner an opportunity to address and possibly overcome 
any perceived deficiencies. Counsel challenges all three grounds for denial. 
After reviewing the record in its entirety, the AAO finds that sufficient evidence was submitted to meet the 
preponderance of the evidence standard with regard to the beneficiary's employment capacity in his position 
with the foreign entity. As such, the first ground cited above as a basis for denial is hereby withdrawn. 
Notwithstanding the above, the AAO finds that counsel's arguments are not persuasive in establishing that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. As 
such, the director's decision will not be overturned. 
It is noted that all of the petitioner's submissions have been reviewed and all relevant documentation that 
pertains to the beneficiary's proposed employment will be addressed in the discussion below. 
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): 
* * * 
-Page 3 
(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 first 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) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization ill 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. 
Page 4 
Section 10 1 (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. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will then consider this 
information 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. Merely establishing that the beneficiary has discretionary authority and assumes a top-level placement 
within an entity's organizational hierarchy is not sufficient to establish that the beneficiary would be 
employed in a qualifying managerial or executive capacity. 
Additionally, it is important to note that establishing who performs the company's daily operational tasks is 
another key aspect of meeting one of the above statutory definitions. This information is particularly crucial 
when the petitioner provides evidence of a limited support staff, which is often indicative of an organization 
that requires the beneficiary to actively assist with non-qualifying tasks in order to ensure that the company 
continues to operate productively. While the AAO acknowledges that no beneficiary is required to allocate 
100% of their 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). 
In the present matter, the petitioner provided an organizational chart that identifies four employees, who were 
available to carry out the petitioner's daily operational tasks at the time the Form 1-140 was filed. However, 
the chart also shows two sales positions and one graphic designer position that were still vacant. It is unclear 
who within the petitioner's organization assumed the burden of the duties that would ultimately be assigned to 
the new employees once the vacant positions become filled. The AAO cannot assume that the beneficiary 
would refrain from carrying out those job duties himself, particularly when the beneficiary's job description is 
primarily comprised of general statements with emphasis placed on the beneficiary's role as a policy maker 
and leader. For instance, the petitioner indicated that the beneficiary would allocate 20% of his time to 
planning, developing, and establishing policies and objectives, which would require overseeing management 
functions and delegating responsibilities to the company's staff. 
PageS 
These vague statements fail to specifically identify any policies or objectives or indicate what is meant by 
"management functions." The petitioner allocates another 15% of the beneficiary's time to developing 
organizational policies and coordinating functions and operating procedures concerning new clients and sales 
contracts. Again, these statements are broad and fail to identify any organizational policies that have already 
been created or explain what specific tasks the beneficiary would perform in his efforts to coordinate the 
various functions and procedures that relate to new clients and contracts. While the petitioner indicates that 
the beneficiary would review and analyze financial data regarding marketing, sales, and service projects as 
part of his policy making role regarding new clients and contracts, it is unclear who, other than the beneficiary 
himself, would actually conduct the research to gather the information that the beneficiary intends to review. 
The AAO also questions the qualifying nature of the job duties that pertain to the beneficiary's role in public 
relations, which would require the beneficiary to review and implement marketing programs and draft and 
execute print media. Although the petitioner indicated that the beneficiary would be responsible for hiring a 
marketing professional, it is clear that such an individual had not yet been hired at the time the petition was 
filed, thus explaining why the beneficiary was assigned these non-qualifying marketing-related tasks. 
Similarly, while the beneficiary'S role in arranging business licenses and promoting the business may be 
essential for the petitioner's continued success and existence as a business entity, these are not job duties that 
are deemed as being within a managerial or executive capacity. Lastly, while the AAO understands the 
petitioner's need to have the beneficiary overseeing financial accounts and creating lines of credit to ensure 
the petitioner's borrowing capability, these too are indicative of operational tasks that do not rise to the level 
of managerial or executive capacity. 
For the reasons outlined above, the AAO cannot conclude that the petitioner, given its staffing composition at 
the time the petition was filed, was ready and able to employ the beneficiary in a qualifying managerial or 
executive capacity. On the basis of this conclusion, the instant petition cannot be approved. 
While counsel contends that the director erred by failing to issue a request for evidence, counsel's assertion is 
contrary to the current regulations, which give uscrs the discretionary authority to determine whether or not 
a request for evidence or a notice of intent to deny should be issued. 8 C.F.R. § 103.2(b)(8). Counsel's 
reference to an internal useIS memorandum is not persuasive, as the memorandum predates and is 
inconsistent with the current regulatory provisions that govern the issuance of requests for evidence and 
notices of intent to deny. 
Lastly, while the AAO acknowledges the director's additional fmding-that the petitioner failed to establish 
that it has an employer-employee relationship with the beneficiary-the appeal will be dismissed based on the 
findings presented above and the AAO need not address the director's third adverse finding at this time. 
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 met that burden. 
ORDER: The appeal is dismissed.