dismissed EB-1C Case: Business

DATE: 
INRE: 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
MAY 3 0 lOU 
OFFICE: 
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 
FILE:_ 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
with the field office or service center that originally decided your case by filing a Form I-290B, Notice of 
Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion 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)(l)(i) requires any motion to 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 
-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 _entity 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)(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 discussing the nature of the U.S. 
business and briefly describing the beneficiary's proposed employment. 
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 (NOill) dated March 2,2010 informing 
the petitioner of various evidentiary deficiencies, including the petitioner's failure to provide evidence 
regarding the beneficiary's proposed employment in the United States. 
The petitioner provided a response, which included, but was not limited to, a list of the beneficiary's 
proposed duties and responsibilities. The petitioner cited the beneficiary's various job responsibilities in 
an effort to depict the beneficiary in a position of authority with respect to budgets and finances, policies 
and business objectives, and the appointment and management of department heads or managers. 
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. 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 therefore issued a decision 
dated May 28,2010 denying the petition based on these two findings. 
On appeal, counsel submits an appellate brief along with supporting documents in an effort to overcome 
the denial. 
The AAO finds that counsel's assertions are not persuasive and fail to establish that the statutory criteria 
have been met. It is noted that all of the petitioner's submissions have been reviewed. All relevant 
documentation that pertains directly to the key issue in this matter will be fully 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): 
* * * 
(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 
-Page 3 
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 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 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 
(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: 
Page 4 
The term "executive capacity" means an assignment within an organization in which the 
employee primari1y--
(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, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). 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), affd, 905 
F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). 
The AAO will also consider other relevant factors, including the petitioner's organizational hierarchy and 
staffmg, as well as the beneficiary's position with respect to subordinate employees. These factors are 
highly relevant as they enable the AAO to assess the beneficiary's role within the petitioning entity and to 
gauge the petitioner's overall ability to relieve the beneficiary from having to primarily perform non­
qualifying job duties. While the AAO acknowledges that no beneficiary is required to allocate 100% of 
his time to manageria1- 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). 
The AAO finds that neither the beneficiary's job description nor the facts provided with regard to the 
petitioner's organizational hierarchy adequately support the claim that the beneficiary would be employed 
in a qualifying managerial or executive capacity. 
Turning to the job description, the AAO will address the hourly breakdown that the petitioner has 
provided on appeal in an effort to show how the beneficiary's time would be allocated among his various 
duties and responsibilities in his proposed position with the U. S. entity. As the initial component of the 
job description, the petitioner states that eight hours a week of the beneficiary's time would be allocated 
to meeting with staff, consulting with managerial or supervisory personnel, and dictating correspondence. 
The AAO notes that in light of the organizational hierarchy, which depicts only one managerial or 
supervisory employee, the assertion that the beneficiary would spend 20% of his time overseeing 
department heads or managers is not credible. While it is possible that the petitioner may eventually 
expand into a more complex organization, the facts as presented in this matter do not show that the 
petitioner had multiple department heads or managerial positions within its organization at the time of 
filing the petition. A petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(1). A 
Page 5 
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). Despite the fact that the 
petitioner had other staff for the beneficiary to oversee, it has not been established that the marketing and 
sales associate, customer service employee, or the accounting employee are supervisory or professional 
employees and thus it cannot be said that overseeing or managing such employees would be time spent 
performing tasks in a qualifying capacity. Similarly, dictating correspondence is not necessarily a task 
that fits the statutory definition of managerial or executive capacity. 
The AAO also finds that the beneficiary would perform other non-qualifying tasks, including obtaining 
information "from all relevant sources," dispensing technical information, making presentations, writing 
business correspondence, engaging in personnel and management dispute resolution, promoting and 
selling the petitioner's products and services, and sales and informational speeches. Although the 
beneficiary would serve neither his position within the petitioner's 
organizational hierarchy nor the discretionary authority he would derive as a result of that position is 
sufficient to establish that the tasks the beneficiary would perform would be in a managerial or executive 
capacity. The fact that the beneficiary would manage a small business does not necessarily establish that 
he would be employed in a primarily managerial or executive capacity within the meaning of section 
101 (a)(44) of the Act. 
After reviewing the petitioner's staffing and organizational hierarchy in light of the job duties described 
above, the AAO finds that the petitioner has not attained a level of organizational complexity wherein 
hiring or firing of personnel, making discretionary decisions, and setting company goals and policies 
would constitute significant components of the duties the beneficiary would perform on a day-to-day 
basis. While no single component of the beneficiary'S job can serve as an adequate basis for an adverse 
finding, when considered cumulatively, the total amount of time that the beneficiary would allocate to 
non-qualifying tasks is greater than the time that would be spent performing tasks within a qualifying 
managerial or executive capacity. Therefore, notwithstanding the beneficiary'S discretionary authority 
and his placement within the petitioner's organizational hierarchy, the AAO finds that the petitioner failed 
to establish that the beneficiary would be employed in a qualifying managerial or executive capacity. 
In light of the conclusion that the petitioner is ineligible to classifY the beneficiary in the immigrant visa 
category of multinational manager or executive, 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.