dismissed EB-1C Case: Business

identifying data deleted to 
prevent clearly unwarr~te.d 
invasion of personal pnvacy 
PUBLTCCOPY 
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: 
JUl 262012 
OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § I J53(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(J)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
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 California corporation that seeks to employ the beneficiary as its chief executive officer. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant 
pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(l)(C), 
as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated September 11, 2009, which contained 
relevant information pertaining to the petitioner's eligibility, including an overview of the petitioner's 
business, the business of its foreign affiliate entity, and brief descriptions of the beneficiary's foreign and 
proposed employment. The petitioner also provided supporting evidence in the form of financial and 
business documents pertaining to both entities. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated March 17, 2010 informing the 
petitioner of various evidentiary deficiencies. Among the director's concerns was the lack of a detailed job 
description pertaining to the beneficiary'S proposed position with the U.S. entity. The director therefore 
instructed the petitioner to supplement the record with a detailed job description listing the beneficiary's 
specific daily tasks and the percentage of time the beneficiary would allocate to each activity. 
The petitioner provided a response, which included a list of the beneficiary's responsibilities and their 
respective time allocations. 
After reviewing the record, the director concluded that the petitioner failed to establish that the petitioner 
would employ the beneficiary in a qualifying managerial or executive capacity. The director determined that 
the beneficiary's salary was not commensurate with that of a company CEO and further determined that the 
petitioner did not establish that the beneficiary oversees a subordinate staff of managerial, supervisory, or 
professional employees who would relieve the beneficiary from having to allocate his time primarily to the 
performance of non-qualifying tasks. 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. The director issued a decision dated August 10, 2010 denying the instant petition. 
On appeal, counsel submits a brief whose primary focus is to overcome the director's conclusion that the 
petitioner and the beneficiary do not have an employer-employee relationship. Although counsel generally 
disputes the finding that the beneficiary would not oversee a staff of professional, managerial, or supervisory 
personnel, there are no statements in the appellate brief or supporting documents explaining why the 
director's finding was incorrect or establishing that the beneficiary would be employed in the United States 
in a qualifying managerial or executive capacity. 
After reviewing the record in totality, the AAO finds that the director improperly relied on the beneficiary's 
salary as a relevant factor in determining the qualifying nature of the beneficiary's proposed employment. 
The AAO also finds that the record does not support the director's determination that the beneficiary would 
not oversee professional, managerial, or supervisory employees. Notwithstanding the director's analysis, the 
record indicates that counsel neglected to address a key eligibility issue-the managerial or executive 
Page 3 
capacity of the beneficiary's proposed employment with the u.s. entity. The AAO finds that the petitioner 
has omitted relevant information that is necessary in order to determine whether the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
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 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 key issue to be addressed in this proceeding is the beneficiary's employment capacity in his proposed 
position with the petitioning U.S. entity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 1100(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III 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 actlVlty 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 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. 
In exammmg 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. § 204.50)(5). Published case law supports the pivotal 
role of a clearly defIned job description, determining that 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. § 204.50)(5). 
The director expressly informed the petitioner that the job description previously provided in support of the 
petition was defIcient and lacked relevant information regarding the benefIciary's daily job duties. Despite 
the director's specifIc request for a detailed account of the benefIciary's proposed tasks, the petitioner's 
response was overly vague in its reliance on broad tenninology, which failed to specify the benefIciary's 
actual daily activities and instead focused on the benefIciary's discretionary authority and his elevated 
position within the petitioner's organizational hierarchy. While both of these factors are admittedly essential 
in order for the benefIciary to be deemed a multinational manager or executive, neither is an adequate 
substitute for a detailed description of the benefIciary's proposed job duties. uscrs cannot assume that the 
benefIciary would allocate his time primarily to qualifying managerial or executive tasks based on his 
placement within the petitioner's organizational hierarchy. A determination of the benefIciary's employment 
capacity is based in large part on the actual job duties that would be performed. 
Page 5 
It is therefore necessary for the petitioner to convey a meaningful understanding of the proposed employment 
by actually specifying what tasks the beneficiary would routinely carry out within the scope of the hierarchy 
that the petitioner had in place as of the date the petition was filed. Assigning time constraints to the 
beneficiary's daily tasks further allows the AAO to gauge the proportion of time the beneficiary would spend 
performing qualifying tasks versus those that are not qualifying. The AAO acknowledges that no beneficiary 
is required to allocate 100% of his time to managerial- or executive-level tasks. The fact that the beneficiary 
may allocate less than half of his time to the performance of operational tasks is acceptable and would not 
preclude the beneficiary from meeting the statutory definition of managerial or executive capacity so long as 
the record shows 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). 
The petitioner relies on vague terminology and paraphrased portions of statutory language to describe the 
proposed employment. For instance, the petitioner indicated that the beneficiary would allocate 20% of his 
time to establishing and maintaining goals and policies. Although the petitioner attempted to elaborate on 
this broad statement, merely explaining that the beneficiary would ensure that the company maximizes its 
profits and "review policies across all departments" conveys virtually no information as to the actual 
underlying tasks that would be performed in connection with these broad business goals. The petitioner 
stated that 20% of the beneficiary'S time would be allocated to exercising wide latitude in discretionary 
decision-making by having "an expansionary vision," targeting "a wider array of markets," and relying on 
"strategic initiatives" put forth by the company's managers. These statements are also vague and fail to point 
to any specific job duties that the beneficiary would routinely perform. The petitioner indicated that another 
20% of the beneficiary's time would be spent expanding the petitioner's reach in order to meet sales goals, 
but the petitioner did not elaborate on this broad statement and did not explain what the beneficiary would do 
to reach more distributors and gain access to new markets. 
The AAO finds that the petitioner failed to provide a comprehensive description of the beneficiary's 
proposed job duties. See 8 C.F.R. § 204.50)(5). The job description provided is simply too vague to allow 
for a conclusion as to what the beneficiary would do on a daily basis. Therefore, the AAO cannot conclude 
that the beneficiary would spend the primary portion of his time performing tasks within a qualifying 
managerial or executive capacity. 
In light of the conclusion that the petitioner has failed to establish that the beneficiary would be employed in a 
primarily managerial or executive capacity, there is no need to address the employer-employee issue, which 
the director cited as a second basis for the 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.