dismissed EB-1C Case: Business Consulting

identifying data deleted to 
prevent clearly unwananted 
invasion of pessanal p r ivac) 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: JUL 0 8 2009 
LIN 07 079 53802 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
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 Delaware corporation that seeks to employ the beneficiary as its chief executive 
officer (CEO). 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. 5 1 153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
based on two independent grounds of ineligibility: 1) the petitioner failed to establish its ability to 
pay the beneficiary's proffered wage at the time the Form 1-140 was filed; and 2) the petitioner failed 
to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes both grounds for denial and submits a brief in support of his assertions. 
After thoroughly reviewing counsel's brief and the additional documentation submitted on appeal, 
the AAO finds that the petitioner has overcome the first ground stated for denial. Accordingly, the 
remainder of this discussion will focus on the remaining ground cited in the director's decision-the 
beneficiary's qualifying employment in his proposed position with the U.S. petitioner. 
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)(l)(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 job duties. 
Specifically, the AAO will examine the record to determine whether sufficient supporting evidence 
was submitted to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 101 (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. 
Page 4 
In support of the Form 1-140, the petitioner submitted a letter dated December 14, 2006 in which the 
following description of the beneficiary's proposed U.S. position as CEO was provided: 
[The beneficiaryl's primary role as the CEO will be to provide leadership and 
direction to the overall business strategy and its execution. . . . Giving effect to 
execution of the business strategy requires hiring, coaching and performance 
management of the company's leadership team. In addition, as CEO, [the 
beneficiary] will fulfill a direct role in participating in key sales cycles, maintaining 
good working relationships with existing clients, promoting the company through 
regular analyst briefings and public relations activities, and in managing the interface 
to its shareholders. [He] also will be responsible on a number of legal, fiduciary and 
business compliance issues for the company. At least five different Vice Presidents 
and the Chief Financial Officer will continue to report directly to [the beneficiary]. 
On February 29, 2008, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide, in part, a detailed description of the beneficiary's proposed day-to-day duties 
with a percentage of time assigned to each duty, a description of duties of the petitioner's staff, and 
the petitioner's organizational chart illustrating the beneficiary's position with respect to others 
within the hierarchy. The petitioner was also asked to provide tax documents for 2006 and 2007 as 
well as work schedules for 2007 and 2008, identifying the employees and each employee's exact 
beginning and ending work time. 
In response, the petitioner provided the following description of the beneficiary's proposed 
employment: 
Marketing and sales 50% 
Directs and oversees the development of marketing messaging for web site, 
newsletters and press releases. 
 Liaise with and brief analysts and other trade 
organizations, trade shows and general purpose opportunities to promote the company 
and its message. 
Leads key clientlprospect presentations, board-level customer briefings, review of 
proposals, pricing decisions and sales strategy and tactics. Review RFP responses 
and customer proposals. 
Sales leadership includes the hiring of key sales positions, e[.]g[.,] VP Sales-America, 
supporting the team in their hiring activities in interviews and by setting KPIs, 
remuneration packages and conducting regular performance reviews. 
In this role, [the beneficiary] travels extensively across North America and into 
Europe and Africa. 
Consulting Services 10% 
[The beneficiaryl's extensive experience in consulting services allow him to provide 
leadership and direction to the consulting group around: 
Hiring practices, KPI setting and performance management[;] 
Directs key hiring activities and decisions[;] 
Developing methodology, project management and business results delivery 
processes[;] 
Ensuring customer quality and delivery excellence[.] 
In this role, [the beneficiary] participates in key project reviews and often attends 
milestone steering committee meetings for major clients[.] 
Product Development 10% 
[The beneficiary] leads the product direction and roadmap activities. This includes: 
Research into latest technologies, product design and usability[,] best practice 
developments in demand planning, inventory planning, sales and operations 
planning, trade & marketing promotions management and price optimization. 
Setting the product goals and driving the development of detailed requirement 
definitions for new modules and product areas. 
Agreeing product release schedules and helping set product release priorities[.] 
Included in this activity is the setting of the development team's KPI and leading the 
performance review processes, hiring decisions and decisions around the use of third- 
party tools and add-ins. 
Finance and Administration 10% 
[The beneficiary] is responsible for ensuring that the group achieves its financial 
goals including: 
. Hitting revenue targets monthly, quarterly, annually and on a multi-year agenda. 
Managing costs to a) budget or b) flex budget based on changing revenue 
circumstances[.] 
Managing liquidity b[y] ensuring debtors are properly managed and creditors are 
paid within credit terms and payrolls are met[.] 
Ensuring individual units (geographies) and revenue generating streams meet 
their agreed targets, e.g.[,] consulting utilization and billability; consulting margin 
. , . . 
In this role, [the beneficiary] leads the monthly management review and monthly 
board meetings to discuss results and the current forecast. 
There are many other aspects at a more detailed level . . . : 
Annual audits and financial statements[.] 
Ensuring compliance with statutory and other legal requirements[.] 
Working with the group's U[.]S[.] attorneys on contracts and other operational 
legal requirements[.] 
Finding offices and negotiating leases[.] 
Outsourcing services contracts . . . . 
Strategy 20% 
[The beneficiary] is expected to be current and familiar with developments in the 
world economies movement and change in the group's target industries, the major 
corporations, competitors and in overall changes and developments in business and in 
technology. 
[He] is expected to translate this knowledge into opportunities and threats to the 
group's business and then to develop that into a set of executable steps. 
Staying up to date and current requires [the beneficiary] to engage in customer 
interaction, interaction with analysts, reading magazines, books and blogs and 
attending webinars. Networking in the United States is a critical success factor in this 
activity. 
The petitioner submitted its organizational chart, which illustrated its staffing and hierarchy as of 
February 12, 2008, as well as job descriptions for each of the employees listed in the chart. The 
petitioner also provided ten 2007 W-2s. 
In a decision dated May 3 1, 2008, the director issued a notice denying the petition based, in part, on 
the finding that the petitioner failed to establish that it would employ the beneficiary in a qualifying 
managerial or executive capacity. The director noted that the beneficiary's job description included a 
number of non-qualifying tasks and further observed that 2007 W-2s were not submitted for several 
of the individuals who were named in the petitioner's organizational chart, thereby indicating that 
those employees were not employed by the petitioner at the time of filing. Additionally, the director 
specifically commented on the 2007 W-2 statements for the director of marketing, senior consultant, 
and consultant, noting that the W-2s show that the wages paid to these three individuals in 2007 
were not commensurate with full-time yearly salaries. Lastly, the director noted that the petitioner 
failed to provide work schedules for its employees, thereby precluding U.S. Citizenship and 
Immigration Services (USCIS) from being able to determine when each of the employees 
commenced hisher respective employment and whether they were employed on a full- or part-time 
basis. 
On appeal, counsel refers to the previously submitted two-and-a-half page job description, which 
included the requested time allotments. Counsel places emphasis on the petitioner's expanding 
business, pointing to the petitioner's revenue growth as evidence of its expansion. Counsel also 
points to the petitioner's expansion in staff, going from five employees in early 2007 to 12 
employees in 2008. 
Counsel's arguments however are not persuasive in overcoming the denial. With regard to the 
petitioner's description of the beneficiary's proposed employment, the AAO notes that the petitioner 
failed to comply with the director's express instruction to assign a percentage of time to each of the 
beneficiary's proposed job duties. In the present matter, the petitioner assigned a percentage of time 
to each of five broad categories, i.e., marketing and sales, consulting services, product development, 
finance and administration, and strategy. Although the petitioner expanded on each of the five 
categories by providing some of the underlying duties associated with those broad categories, none 
of the more specific job duties were assigned the requested time allocations, leaving USCIS to 
wonder how much time would be spent performing the qualifying tasks versus the non-qualifying 
ones. For instance, in the statements that described the beneficiary's role in marketing and sales, the 
petitioner stated that the beneficiary would approach analysts and trade organizations to promote the 
petitioner's software products. While this may be a qualifying task, as it implies that the marketing 
function is performed by someone other than the beneficiary, the beneficiary would also lead in 
certain client presentations, which is more indicative of a sales-related task and, therefore, non- 
qualifying. Similarly, with regard to product development, the beneficiary's job would involve 
conducting product research, also a non-qualifying operational task. 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 10 1 (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 failing to 
assign time constraints to specific job duties, per the director's express instruction, the petitioner has 
precluded USCIS from being able to gauge how much of the beneficiary's time would be attributed 
to specific tasks and whether the primary portion of his time would in fact be spent performing tasks 
within a qualifying capacity. 
Furthermore, while a detailed description of the beneficiary's proposed employment is required by 
8 C.F.R. 5 204.5(j)(5) and is admittedly key to establishing eligibility, this information alone is not 
enough. Rather, it must be considered in light of other highly relevant factors, including 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. In the 
present matter, while the petitioner has provided an organizational chart illustrating its staffing 
hierarchy as of February 2008, the record shows that the Form 1-140 in the present matter was filed 
on January 22, 2007, i.e., more than one year prior to the date of the organizational structure 
illustrated in the submitted chart. A petitioner must establish eligibility at the time of filing; a 
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). Here, as the director 
accurately noted, several key employees who were issued W-2s in 2007 did not receive salaries that 
were commensurate with a full year of employment, thereby indicating that the petitioner's director 
of marketing, senior consultant, and consultant may not have been employed by the petitioner at the 
time of filing. 
Moreover, in reviewing the 2007 W-2s that were submitted in response to the WE, the AAO notes 
that three employees to whom W-2s were issued do not appear on the petitioner's organizational 
chart. That being said, the AAO understands that the W-2s account for employees the petitioner had 
in 2007 while the organizational chart provides an illustration of the petitioner's organizational 
hierarchy as of February 2008. However, the fact that the petitioner has not provided an 
organizational chart that illustrates its organizational hierarchy as of January 2007 precludes the 
AAO from being able to determine which positions were filled at the time of filing. This 
information is particularly relevant, as the petitioner must establish that it had the ability to relieve 
the beneficiary from having to primarily perform non-qualifying tasks at the time of filing. The 
petitioner cannot effectively establish this ability without first providing evidence of a sufficient 
underlying support staff to perform the daily operational tasks that would not be deemed as 
qualifying. 
While the AAO acknowledges that the petitioner merely complied with the director's RFE request 
when it submitted an organizational chart illustrating its hierarchy as of February 2008, the director 
clarified the prior oversight by properly focusing on the Form 1-140 filing date as the relevant time 
period during which eligibility must initially be established. Thus, the petitioner was given adequate 
notice of the relevant requirement and had the opportunity to provide further information on appeal, 
including an organizational chart that reflected the petitioner's organizational hierarchy at the time of 
filing and an explanation as to how the organizational hierarchy that was in place at the time of filing 
was sufficient to relieve the beneficiary from having to primarily perform non-qualifying operational 
tasks. Instead, the petitioner's supporting documents on appeal include an even more recent 
organizational chart, depicting the petitioner's organizational hierarchy as of July 2008. 
Additionally, the petitioner provided a master list of its employees, which includes each employee's 
respective date of hire. In reviewing this list, the AAO observes that the only individual the 
petitioner employed at the time of filing was Roderick Fok, the petitioner's vice president of 
professional services. It is unclear how, in light of this staffing arrangement, the petitioner would 
have been able to employ the beneficiary in a qualifying managerial or executive capacity at the time 
of filing. 
In summary, the record contains insufficient information about the beneficiary's proposed job duties 
and is supported by documentation that indicates an overall lack of adequate support personnel at the 
time of filing. Therefore, this 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.