dismissed EB-1C Case: Business Consulting

U.S. Departnient of Elomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
/ 
FILE: - Office: VERMONT SERVICE CENTER Date: lXc 2 6 2001 
EAC 05 149 50168 
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. 9 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. 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is operating in the United States as a branch office of a foreign entity, which seeks to employ 
the beneficiary in the United States as its director. Accordingly, the petitioner endeavors to class@ 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. 8 1 153(b)(l)(C), as a multinational executive or manager. The director 
delineated the following three independent grounds as the basis for denial: 1) the petitioner failed to establish 
that it is doing business; 2) the petitioner failed to establish that the beneficiary's foreign employer is doing 
business; and 3) the petitioner failed to establish that it would employ the beneficiary in a managerial or 
executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
Section 203(b) of the Act states in pertinent part:' 
(1) Pnority 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. 
i 
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 first two issues in this proceeding rely on the definition of doing business, which 8 C.F.R. tj 204.5(j)(2) 
defines as the "the regular, systematic, and continuous provision of goods andlor services by a firm, corporation, 
or other entity and does not include the mere presence of an agent or office." 
> 
Based on a review of the initial petition and the documentation submitted in support thereof, the director 
determined that the petitioner failed to submit sufficient evidence to establish that the foreign and U.S. offices 
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conduct business on a regular, systematic, and continuous basis. Therefore, Citizenship and Immigration 
Services (CIS) issued a request for additional evidence (RFE) dated January 5, 2006 informing the petitioner 
of this deficiency. CIS specifically instructed the petitioner to provide evidence to establish that the U.S. and 
foreign offices are providing goods andlor services on a regular, systematic, and continuous basis. 
In response, the petitioner submitted a letter dated March 8, 2006 in which it stated that its goal is "to 
implement the latest management system based on cooperation between labor and management, to introduce 
effective management renovation, to train human resources and to present public policy proposals for 
reform." The petitioner also submitted an undated seven-page attachment in which it stated the following on 
page five: "[The petitioner] was established for the purpose of promoting business productivity through 
I 
 research, education and consultation." Thus, while the AAO acknowledges that the petitioner, as a non-profit 
entity, does not engaged in a direct exchange of services for monetary compensation like a for-profit entity, 
the petitioner must establish that it conducts research andor provides education and consultation services on a 
regular, systematic, and continuous basis. The mere provision of various tax documents, evidence that an 
entity has employees or a web site, or any other evidence establishing an entity's mere existence as a non- 
profit organization cannot be deemed as accurate indicators of an entity that conducts business in the manner 
prescribed by 8 C.F.R. § 204.5(j)(2). 
Accordingly, the director issued a decision dated August 21, 2006, concluding that the petitioner has not 
provided sufficient documentation to establish that either the U.S. branch office or its main office abroad are 
doing business. The director specifically noted the lack of documentation memorializing any business 
transactions. The AAO notes the director's misleading comment regarding the petitioner's inability to show 
the source of funds for its gross receipts. In light of the non-profit status of the foreign entity and its U.S. 
branch office, it is understandable that the funds of such an entity may not be derived from sales of products 
or services as would be the case with a for-profit entity. However, the petitioner must nevertheless establish 
its statutory eligibility to classify the beneficiary as a multinational manager or executive, which includes 
providing evidence to show that it meets the definition of doing business as defined in 8 C.F.R. §204.5(j)(2). 
On appeal, counsel objects to the director's adverse findings and asserts that the director failed to specify 
which documents were necessary in order to establish that it is doing business. In addressing the comments 
and observations in the director's denial, counsel provides a list along with corresponding documents 
describing the various projects and programs that the petitioner helped organize in 2005 and 2006. While the 
petitioner does not engage in a direct exchange of providing services for financial gain, it has provided 
sufficient evidence to establish ongoing transaction of business activity in accordance with the nature of its 
non-profit organization. Therefore, the petitioner has overcome this portion of the director's denial. 
However, the director also concluded that the record lacks evidence to establish that the petitioner's foreign 
counterpart, or its headquarters located in Japan, is also doing business. The AAO notes that this is a valid 
.concern, as a petitioner cannot be deemed a multinational entity unless it provides evidence to establish that it 
conducts business in two or more countries, one of which is the United States. See 8 C.F.R. $ 204.5(j)(2) for 
definition of multinational. All of the documents submitted on appeal address the issue of whether the 
petitioner is doing business. The petitioner has not supplemented the record with similar documentation with 
regard to the regular, systematic, and continuous business activity of its headquarters office in Japan. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
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Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As such, the petitioner has failed to 
overcome this portion of the director's denial, and the petition may not be approved for this reason. 
The third issue in this proceeding is whether the petitioner has established that it would employ the 
beneficiary in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 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. fj 1101(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 support of the Form 1-140, the petitioner submitted a letter dated March 24, 2005, which included the 
following description of the beneficiary's proposed employment: 
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1. 
 [Dlirect the work of the Washington[,] D[.]C[.] office of the company; 
2. 
 [Clonduct and organize conferences and seminars for the study of business issues for American and 
Japanese businesses with focus on overseas transaction programs; 
3. 
 [Ulndertake consulting services for official development assistance projects and enterprises; and 
4. 
 [Rlesearch management technology and initiatives for Japanese businesses. 
In the January 5, 2006 RFE, CIS instructed the petitioner to provide a detailed description of the beneficiary's 
job duties accompanied by an hourly breakdown indicating the amount of time allotted to each duty. The 
petitioner was also asked to provide further evidence of its staffing, including the number of employees it has 
and a description of their respective positions within the U.S. entity. 
The petitioner's response included its quarterly wage report for the second quarter of 2005, the time period 
during which the Form 1-140 was filed. The document identified Hiroshi Shinoda, a staff employee, and the 
beneficiary, the petitioner's director. In a separate discussion of the petitioner's staffing, the petitioner 
indicated that the employment of -as terminated in August of 2005. The petitioner indicated 
that the staff member's responsibilities included accounting and bookkeeping, assisting the beneficiary, and 
communicating with partners and networks. The record also shows that the petitioner employs a contract 
worker whose responsibilities include building up programs as well as translation and interpretation. 
With regard to the beneficiary, the petitioner generally stated that he is responsible for developing and 
carrying out the strategic plan of the U.S. office. The petitioner also discussed the beneficiary's various 
business goals and accomplishments since his employment commenced in the United States in 2003. The 
petitioner explained that when the beneficiary assumed the position of director of the U.S. branch office, he 
proposed to reorganize the branch's functions. By 2005, the beneficiary's responsibilities included advising in 
project development with the Inter-American Development Bank, assisting the Japan Society of Human 
Resource Management to partner with the Society of Human Resource Management in the United States, and 
submitting the petitioner's revised articles to local D.C. government. The petitioner did not specify how the 
beneficiary was assisted by others in carrying out these responsibilities or what the beneficiary's specific daily 
tasks would be in light of these broad responsibilities. The petitioner provided the following hourly 
breakdown to further explain the beneficiary's proposed tasks: 
1. Management and organization of [the] U.S. [o]ffice[.] 22 hours 
2. 
 Conduct and [clareer [dlevelopment for offl-]shore staff and resident staffl.] 
 8 hours 
3. Representing [the] U.S. [o]ffice[.] 4 hours 
4. Others, [sic] specially assigned[.] 1 hour 
After reviewing the submitted documentation, the director determined that the petitioner failed to establish 
that the beneficiary's duties would be primarily within a managerial or executive capacity. The director noted 
that the petitioner prov~ded only a vague description of the beneficiary's duties. 
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Page 6 
On appeal, counsel objects to the director's conclusion and reintroduces previously submitted documents and 
discusses the beneficiary's high degree of discretionary authority with respect to matters concerning the 
petitioner. Counsel also points to the beneficiary's significant role in developing new initiatives for the U.S.- 
based office, his role in brokering a relationship among two human resources companies, and his overall 
discretion in hiring and training personnel. However, tn examining the executive or managenal capacity of 
the beneficiary, the petitioner must provide a detailed description of the beneficiary's job duties. See 8 C.F.R. 
8 204.5Cj)(5). Furthermore, the petitioner must demonstrate that the primary portion of the beneficiary's time 
would be spent performing job duties with a qualifying managerial or executive capacity rather than tasks 
necessary to produce a product or to provide services. 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). 
In the present matter, the petitioner has neither provided a detailed description of the beneficiary's duties nor 
demonstrated that the beneficiary would be relieved from having to primarily provide the petitioner's essential 
services. While the petitioner's general description of the beneficiary's proposed employment strongly 
suggests that the beneficiary would assume the senior-most position within the organizational hierarchy, the 
petitioner's overall lack of an adequate support staff is suggestive of an employee who both oversees and 
primarily performs the essential functions of the business. In other words, if the petitioner's goal is to sponsor 
educational conferences and promote' Japan's business productivity and socio-economic development, the 
petitioner should be able to explain and provide documentation that establishes who actually carries out the 
essential functions that enable the petitioner to meet its business objectives. In the present matter, while the 
petitioner has provided only general overviews of the beneficiary's proposed employment, there is little 
evidence .to indicate that someone other than the beneficiary would actually provide consulting services to 
Inter-American Development Bank, act as liaison between the two human resource companies for whom the 
beneficiary brokered a collaborative relationship, build up the petitioner's website, or interact with the 
necessary companies and individuals in the petitioner's sponsorship efforts. 
Furthermore, while the petitioner generally indicates that the beneficiary's discretionary authority fits the 
definition of managerial or executive capacity, these definitions are meant to serve only as guidelines to be 
applied to a specific list of duties, as the actual duties thems'elves 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). 
Thus, in stating that 22 hours, which is equivalent to more than 50% of the beneficiary's time, would be spent 
managing and organizing the U.S. branch office, the petitioner must explain what duties the beneficiary 
actually performs in carrying out this broad business objective. Specifics are clearly an important indication 
of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103. The petitioner's inability to define with specificity the actual job duties the beneficiary would 
perform on a daily basis coupled with its lack of a sufficient support staff further preclude the AAO from 
approving the petitioner's Form I- 140. 
Furthermore, the record does not support a finding of eligibility based on at least one additional ground that 
was not specifically addressed in the director's decision. Namely, while the director discussed whether the 
petitioner is currerkly doing business, he failed to include a comprehensive discussion that includes the 
provisions cited in 8 C.F.R. 204.56)(3)(i)(D), which states that the petitioner must establish that it has been 
doing business for at least he year prior to filing the Form 1-140. In the present matter, the documentation 
Page 7 
provided primarily covers the time period since the filing of the Form 1-140, which does not address the time 
period that preceded the filing of the Form 1-140. In the present matter, the Form 1-140 was filed in April 2005. 
Therefore, based on the provisions of 8 C.F.R. 8 204.5Cj)(3)(i)(D), the petitioner must establish that it has 
provided its services on a "regular, systematic, and continuous" basis since April 2004. See 8 C.F.R. 
8 204.50)(2) for a definition of doing business. Based on the attachment submitted in response to the RFE, it 
appears that at least a portion of the relevant one-year time period was used by the beneficiary to prepare the 
petitioner for doing business. However, there is no evidence to suggest that the petitioner was providing its 
services in the regulated manner during the one year prior to filing the Form 1-140. 
I 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see alro Dor v. INS, 891 F.2d 997, 1002 A. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the WO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for 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. tj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.