dismissed EB-1C Case: Business/Commerce

identifying data deleted to 
prevent clearly unwarr~ted 
invasion of personal pnv~y 
PUBUCCOPY 
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 2 6 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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. § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please [md 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){l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
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 president. 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 )(1 )(C), as a multinational 
executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated October 6, 2009, which included 
relevant information pertaining to the beneficiary's employment abroad as well as his proposed employment 
with the U.S. entity. The petitioner also provided supporting evidence in the form of corporate, business, and 
tax documents. 
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 12, 2010 informing the 
petitioner of various evidentiary deficiencies. The director instructed the petitioner to supplement the record 
with additional job descriptions and documents pertaining to the beneficiary's foreign and proposed 
employment in order to determine whether the beneficiary was employed abroad and whether he would be 
employed in the United States in a qualifying managerial or executive capacity. 
The petitioner provided a response, which included supplemental job descriptions, organizational charts, and 
tax documents addressing the director's concerns. 
After reviewing the record, the director concluded that the evidence and information provided failed to 
establish that the beneficiary's proposed employment with the U.S. entity meets the statutory definitions of 
managerial or executive capacity. The director therefore issued a decision dated October 20, 2010 denying 
the petition. 
On appeal, counsel asserts that the beneficiary is working in an executive capacity. Counsel stresses the 
beneficiary's discretionary authority and attributes the petitioning entity's growth and development to the 
beneficiary's guidance and business acumen. 
The AAO finds that the petitioner's arguments are not persuasive and fail to overcome the director's denial. 
The discussion below will provide an analysis of the relevant documentation and will explain the underlying 
reasoning for the AAO's decision. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 
Page 3 
under this subparagraph, has been employed for at least I 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 in this proceeding calls for an analysis of the benefIciary's 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 the benefIciary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) ofthe Act, 8 U.S.c. § I 101 (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 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 10 I (a)(44)(B) ofthe Act, 8 U.s.c. § I 10 I (a)(44)(B), provides: 
Page 4 
The term "executive capacity" means an assignment within an organization m 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 ofthe 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.P.R. § 204.5(j)(5). The AAO also finds that it is appropriate 
to consider other relevant factors, such as the type of business the petitioner operates, the petitioner's 
organizational hierarchy, which shows the complexity of a given entity and the beneficiary's placement in 
relation to other employees, and the petitioner's overall staffmg, which allows the AAO to gauge the extent to 
which the petitioner is able to relieve the beneficiary from having to focus the primary portion of his time on 
the performance of non-qualifying operational tasks. 
Turning first to the percentage breakdown used to describe the beneficiary's proposed employment, the AAO 
finds that a number of the items listed are indicative of non-qualifying operational tasks, including traveling 
abroad for sourcing and purchases, analyzing market trends to determine a market strategy, interacting with 
sales representatives, visiting customers, attending trade shows, and engaging in administrative tasks that 
involve addressing payments and receivables as well as taxation, banking, and legal matters. 
The AAO has reviewed the beneficiary's job description in light of the petitioner's organizational hierarchy, 
which shows that at the time of filing, the petitioner was comprised of five in-house employees-the 
beneficiary as the company's president, a general manager/product development, one office operations and 
sales manager, one warehouse manager, and one warehouse worker-and contract-based sales representatives 
and a bookkeeping firm. 
On appeal, counsel asserts that the beneficiary himself is not involved in actually selling the petitioner's 
products and points to the sales representatives whom the petitioner employs to carry out this essential non­
qualifying task. Counsel also provides examples of key business decisions the beneficiary has made and 
explains how these decisions help to shape the petitioner's organizational policies and enable the petitioner to 
reach various business objectives. However, notwithstanding the beneficiary's pivotal role and his senior 
position within the petitioner's organizational hierarchy, the AAO finds that neither the beneficiary's job 
description nor the petitioner's staffing establishes that the petitioner has progressed to a stage in its 
development where it is capable of relieving the beneficiary from having to allocate the primary portion of his 
time to performing operational and administrative tasks. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her 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 position in question. An employee who "primarily" performs the 
Page 5 
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). That being said, it cannot be concluded that anyone 
task that the beneficiary would perform can serve as an adequate basis for this adverse finding. However, 
when considered cumulatively, the percentage breakdown offered in response to the RFE is sufficient to show 
that the total amount of time the beneficiary would allocate to the 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 top placement within the petitioner's 
organizational hierarchy, the AAO finds that the petitioner has failed to establish that the beneficiary would 
be employed in a qualifying managerial or executive capacity. On the basis of this conclusion, the petition 
cannot be approved. 
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.