dismissed EB-1C Case: Business Consulting

(b)(6)
DATE: ftB \ j 2.013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department or 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){l)(C) ofthe 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 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 Forni 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. § l03.5(a)(l)(i) requires that any motion must be ftled 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.usels.gov 
(b)(6)Page2 
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 a New York corporation that seeks to employ the beneficiary in the United States 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 I-140 the petitioner submitted a statement dated April 19, 2011, which contained 
relevant information pertaining to the petitioner's eligibility, 1 including a job description of the beneficiary's 
proposed employment with the petitioning entity. Although the petitioner indicated that the beneficiary has 
played an integral role in the petitioner's growth process, a job description of the beneficiary's projected tasks 
in the proposed position was not included in the initial supporting statement. 
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) dated June 27, 2011 informing the petitioner of 
various evidentiary deficiencies. One of the issues the director addressed was that of the beneficiary's 
proposed employment with the U.S. entity. . Specifically, the director instructed the petitioner to provide a 
more detailed job description enumerating the beneficiary's job duties and the percentage of time the 
beneficiary planned to devote to each task. The director also asked the petitioner to submit evidence of its 
staffing, indicating how many employees it has, the duties performed by each employee, and each employee's 
educational level. 
In response, the petitioner provided a statement dated July 25, 2011, which included a list of the beneficiary's 
assigned duties and responsibilities. The petitioner provided nearly identical lists· describing the beneficiary's 
foreign and proposed employment and failed to comply with the director's request for a percentage 
breakdown establishing how much t~e the beneficiary would allocate to each of the items included in the job 
description list. The petitioner did, however, comply with the request for an organizational chart, which was 
included as Exhibit 7, showing that the beneficiary and the company president are situated at similar levels of 
the petitioner's organizational hierarchy. The chart shows that the beneficiary oversees the company's vice 
president (who oversees two independent sales contractors), a market research analyst, an accountant (who 
oversees bookkeeping and payroll services providers), and an independently contracted import/export services 
agency. Despite the similarity in job descriptions for the beneficiary's foreign and proposed positions, the 
organizational charts for the two entities show considerably distinct staffing hierarchies. 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary would be employed with the U.S. entity 
in a qualifYing managerial or executive capacity. The 
director therefore issued a decision dated December 5, 2011 denying the petition. 
1 In the initial support letter (at page 2, paragraph 3)the petitioner indicated that the instant petition was being filed for 
the purpose of having the beneficiary's "stay extended on LlA nonimmigrant status." This matter concerns the filing of 
a Form 1-140 immigrant petition seeking an employment-based preference visa for the beneficiary. The matter· 
concerning the nonimmigrant petition is determined in an entirely separate proceeding and has no ·bearing on the 
outcome of this proceeding. 
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Page3 
On appeal, counsel restates the same list of job duties that the petitioner provided earlier in response to the 
RFE and asserts that only skilled staff members are employed in-house while the petitioner's clerical and 
administrative functions (including bookkeeping, payroll, reception, and sales) are outsourced to independent 
contractors. Counsel also indicates that the petitioner has recently undergone a merger, which altered the 
petitioner's organization by adding divisions and skilled employees to its organizational hierarchy and 
expanding its business to include IT, real estate development; and automotive consulting services. Counsel 
goes on to describe the beneficiary's role within the petitioner's new organizational hierarchy. 
The AAO has reviewed the record in its entirety and finds that counsel's assertions are not persuasive in 
overcoming the director's finding of ineligibility. The AAO will fully address the petitioner's eligibility and 
counsel's staJements 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 year by a fum 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 frrm, corporation or other legal entity, Of 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 I-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. 
Section 101(a)(44)(A) ofthe 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; . 
(b)(6)Page4 
(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: 
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. 
The primary issue in this proceeding is the beneficiary's employment capacity in his proposed position with 
the U.S. entity. In addressing this issue the AAO will first look to the petitioner's description of the 
beneficiary's proposed job duties. See 8 C.F.R. § 204.5(j)(5). Published case law supports the pivotal role of 
a detailed 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), aff'd, 905 F.2d 41 (2d. Cir. 1990); see also 
8 C.F.R. § 204.5(j)(5). Additionally, the AAO finds that it is appropriate to consider other 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 company's daily operational 
tasks. 
Turning first to the beneficiary's job description in this matter, the AAO finds that the list offered by the 
petitioner in response to the RFE included numerous non-qualifying tasks, such as creating and developing 
markets for the export business, coordinating export operations, negotiating with suppliers and dealers of used 
automotive parts, setting up and developing a U.S. inspection station, coordinating debt financing and debt 
service payments, dealing and negotiating with suppliers and manufacturers, and preparing budgets and 
forecast reports. The petitioner failed to provide percentage breakdowns to these and other of the 
(b)(6)Page5 
beneficiary's assigned tasks despite having been expresslY. instructed to do so. This information is needed as 
it allows USCIS to gauge how much ofthe beneficiary's time would be allocated to qualifying tasks versus 
those that would be deemed as non-qualifying. 
While no beneficiary is required to allocate I 00% 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 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 iri a managerial or executive capacity. See 
sections IOI(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 reviewing the beneficiary's job description in li~ht of its limited staffing, the AAO questions how the 
petitioner, given the staffmg at the time the Form 1-140 was filed, planned to relieve the beneficiary from 
allocating his time primarily to non-qualifying tasks. While the record clearly shows that the beneficiary's 
job description for his employment abroad was nearly identical to his job description in' the proposed U.S. 
position, the AAO cannot consider the similarity without also considering the distinction between the two 
entities' respective organizational hierarchies. The organizational hierarchy of the foreign entity is 
considerably more complex, showing multiple management· and supervisory tiers, as well as an 
extensive 
support staff to carry out the company's sales, marketing, clerical, and administrative functions. 
On the other hand, the petitioner's organizational hierarchy is considerably more limited. While the petitioner 
claims that the administrative and clerical functions were being outsourced to independent contractors, the 
record lacks evidence to support this claim. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Despite the nearly identical job descriptions of the beneficiary foreign and proposed positions, the AAO 
cannot ignore the fact that, unlike the petitioning entity at the time of fiiing, the foreign entity offered the 
beneficiary a support staff that was capable of relieving him from having to primarily perform non-qualifying 
tasks. In reviewing the relevance of the number of employees a petitioner has, federal courts have generally 
agreed that USCIS "may properly 
consider an organization's small size as one factor _in· assessing whether its 
operatiqns are substantial enough to support a manager." Family, Inc. v. U.S. Citizenship and Immigration 
Services, 469 F.3d 1313, 1316 (9th Cir. 2006). (citing with approval Republic of Transkei v. INS, 923 F.2d 
175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). In light of the differences 
between the U.S. and foreign entities, the AAO also questions how the petitioner can offer nearly identical job. 
descriptions for what appear to be two very distinct positions. 
While counsel offers evidence. showing that the petitioner has undergone an organizational transformation 
subsequent to a merger agreement which was executed on Augilst 12, 2011, the Form 1-140 which is the 
(b)(6)
. . . . 
Page6 
subject of this discussion was filed on May 13, 2011. Thus the filing of the petition preceded the merger 
agreement by three months. 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 
ofKatigbak, 14 I&N Dec. 45,49 (Comm. 1971). In light ofthe.fact that the merger agreement had not gone 
into effect until after the petition was filed, the petitioner's organizational transformation post-merger cannot 
be considered in determining the petitioner's eligibility in the present matter. A petitioner cannot offer on 
appeal a new position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
In light of the discussion above, the AAO fmds that the beneficiary's proposed position at the time the Form 
1-140 was filed did not merit immigrant classification of multinational manager or executive. Therefore, the 
instant 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.