dismissed EB-1C Case: Business

(b)(6)
DATE: MAR 0 ~ 2013 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
:p;s.: ».eiJ~rtiil~li( o.r:~.~lli~lluilf ~ciirlty 
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 Im.niigration 
Services · 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
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Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative ApP,eals Office in your case. All of the documents 
related to this matter have been returned to the office that ori~nally decided your case. Please be advised that 
any further inquiry that you might have concerning yo,ur 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 ~ motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice 9f 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)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to recons
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ider or reopen. 
Thank you, 
. Ron Rosenberg . 
~. Acting Chief, Administrative Appeals Office 
www.;ilsd!l.gov 
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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. 
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The petitioner is a California corporation that seeks to employ the beneficiary in the United States as its 
president/chief executive officer. Accordingly, the petition~r endeavors to classify the beneficiary as an 
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employment-based immigrant pursuant to section 203(b)(1)(€:) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive ot manager. · 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. --Visas shall firstbe made available ... to qualified immigrants who 
are aliens described in any of the following subparagr~phs (A) through (C): 
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* * * 
(C) Certain Multinational Executives and MLagers. --An alien is described 
in this subparagraph if the alien, in the 3 ~ears 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 cbntinue to render services to the 
same employer or to a subs~diary or affilia~e 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 legallentity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the samJ 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)(l)(C) of the Act as a multinational executive or marlager. No labor certification is required for this 
classification. The prospective employer in the United St~tes must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed iJ the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties td be performed by the alien. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), !provides: 
The term "executive capacity" means an assignlent within an organization in which the 
employee primarily-- I . . · 
(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; I · · 
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(iii) exercises wide latitude in discretionacy decision-making; and 
(iv) receives only general supervision or !direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form I-140 the petitioner submitted a statemLt dated June 17, 2011, which contained a brief 
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discussion of the petitioner's business purpose and the beneficiary's proposed position in the United States. 
The petitioner also provided an unaudited financial statement] a 2009 tax return, and 2010 Form W-3 and W-
2 statements. The petitioner did not provide any informati~n pertaining to the beneficiary's employment 
abroad. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) da!ed October 18, 2011 informing the petitioner of 
various evidentiary deficiencies. The RFE addressed a vari~ty of issu~s. including the beneficiary's foreign 
and proposed employment. Specifically, the beneficiary inst~cted the petitioner to list the beneficiary's job 
duties with each entity and to assign time constraints to each! of the listed tasks. The director also asked the 
petitioner to provide both entities' organizational charts depibting their respective staffmg structures and job 
descriptions pertaining to the employees included in the chart~. . 
In response, the petitioner provided a statement dated .Decejber 20, 2011 from the chief financial officer of 
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the petitioning entity and a statement dated December 1, 2010 from the chief executive officer of the foreign 
entity briefly describing the beneficiary's positions with ~e U.S. and foreign entities, respectively. The 
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petitioner also provided the requested organizational charts. The petitioner did not, however, comply with the 
director's request for a list of the be~eficiary's job duties J.ith each entity along with how much time the 
beneficiary devoted and would devote to each of his assigned ijob duties with each entity. 
After considering the .petitioner's response, the director deteLiled that the petitioner failed to establish that 
the beneficiary was employed abroad or would be employed ~ith the U.S. entity in a qualifying managerial or 
executive capacity. In addressing the beneficiary's proposbd employment with the petitioning entity, the 
director pointed out that while the ·organizational chart sho~s that the petitioner h~ over 50 employees, the 
2010 W-2 statements show that the petitioner had four full-time and ten part-time employees. The director 
focused on evidence ofthe petitioner's staffing in 2010 and tletermined that the petitioner would not be able 
to ensure that the beneficiary would devote his 
time primaril~ to the pert:ormance of qualifying managerial- or 
executive-level tasks. The director also found that the petitioner submitted vague job descriptions that do not 
list the specific tasks the beneficiary performed during his ethployment abroad or those he would perform in 
his proposed position with the U.S. entity. In light of these! adverse findings, the director issued a decision 
dated February 8, 2012 denying 
the petition. 
On appeal, counsel provides the petitioner's 2011 tax return, updated organizational chart reflecting the 
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petitioner's current staffmg, as well as an appellate briefin which counsel provides a lengthy discussion of the 
petitioner's business and the beneficiary's role therein. The IAAO notes that the petitioner's 2011 tax return 
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shows that the petitioner's business expanded significantly by the time the petition was filed in June 2011. 
Both the petitioner's increased income and total salaries andlwages paid in 2011 indicate that the petitioning 
(b)(6)
Page4 
organization had undergone substantial changes since the petitioner's submission of2010 W-2 wage and tax 
statements, which reflected the petitioner's staffing prior to thd filing of the petition. 
After reviewing the additional . evidence and information ~rovided on appeal, the AAO finds tha~ the 
petitioner's organization ·at the time of filing was significantly different from the organization that existed in 
2010. Thus, while the director may have been correct in his determination based on the documents that were 
before him 
at the time of the denial, the record has now bee~ supplemen-ted with additional documentation, 
which depicts a complex organizational hierarchy that the bbneficiary heads in a leadership position. The 
petitioner established that this organization existed at the time of filing. See Matter of Katigbak, 14 I&N Dec. 
45,49 (Comm'r 1971). 
In light of the supplemental information pertaining to the beneficiary's proposed employment, the AAO finds 
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that the petitioner has provided sufficient evidence to establish that the beneficiary's employment with the 
U.S. entity would more likely than not be in a qualifying ex~cutive capacity. The AAO therefore concludes 
that the petitioner has successfully overcome one of the two ~minds cited in the denial. . 
Notwithstanding the 
favorable determination pertaining to thJ beneficiary's proposed employment, the record 
shows that counsel neither disputed nor addressed the seJond ground for denial, which dealt with the 
beneficiary's former employment with the petitioner's forei~ parent entity. Therefore, in light of counsel's 
failure to dispute or address the director's adverse findin~ with regard to the beneficiary's employment 
abroad, the AAO finds that the petitioner has effectively codceded to the adverse finding. The appeal must 
therefore be dismissed on the basis that the petitioner failed td provide sufficient evidence to establish that the 
beneficiary was employed 
abroad in a qualifying managerial Jr executive capacity. 
In visa petition proceedings, the burden of proving eligibili~ 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.