dismissed EB-1C Case: Business Consulting

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBEEG COPY 
t FILE: 
WAC 03 247 54 13 1 Office: CALIFORNIA SERVICE CENTER 
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 1 153(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. 
-Robert P. biemann, Director 
Administrative Appeals Office 
WAC 03 247 54 13 1 
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DISCUSSION: The Director, California Service Center, denied the employment-based petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of Nevada in January 1998. It promotes Japanese and 
U.S. business relationships. It seeks to employ the beneficiary as its president and chief executive officer. 
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 1153(b)(l)(C), as a 
multinational executive or manager. 
The director determined that the petitioner had not established that the beneficiary would be employed in a 
primarily managerial or executive capacity for the United States entity. 
On appeal, the petitioner contends that the beneficiary spends a majority of his time developing and 
sustaining client relationships and directing the company's business plan. The petitioner asserts that the 
beneficiary directs one professional level general manager, who in turn directs one administrative assistant. 
The petitioner also notes its plans to expand in the United States market and increase its number of 
employees. 
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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 that indicates that the alien is to be employed in the United States in a managerial or executive 
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capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
5 204.5(j)(5). 
The issue in this proceeding is whether the beneficiary will be employed in a managerial or executive 
capacity for the United States entity. 
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; 
. . 11. 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; 
. . . 
111. 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. 11 Ol(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
1. directs the management of the organization or a major component or function 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
function: 
iii. exercises wide latitude in discretionary decision making; and 
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iv. receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In an August 25, 2003 letter appended to the petition, the petitioner indicated that the beneficiary's duties 
included the direction of the petitioner's business policy, development of the overall corporate plan, and 
interfacing with potential and current clients. The petitioner also noted that its general manager reported 
directly to the beneficiary and that the general manager's duties included the day-to-day operations of the 
petitioner. The petitioner stated that the general manager's duties also included contacting other professionals 
contracted to perform work for the petitioner, hosting trade lectures for local wholesalers and exporters, 
hosting investment lectures for Japanese investors, directing the petitioner's public relations, conducting 
entertainment market analysis, and evaluating international money markets. The petitioner also indicated that 
a secretary had been hired to perform office duties such as bookkeeping, answering telephones, and filing 
documents. 
On August 12, 2004, the director requested: (1) a more detailed description of the beneficiary's duties in the 
United States; (2) a copy of the petitioner's organizational chart describing its managerial hierarchy and 
staffing levels, as of the date of filing the petition, which should include the names of all executives, 
managers, supervisors, and number of employees within each department or subdivision, and a brief 
description of job duties, educational levels, salarieslwages for all employees under the beneficiary's 
supervision; and, (3) the petitioner's state wage reports for the last four quarters. 
In an October 22, 2004 response to the director's request for further evidence in support of the petition, the 
petitioner indicated that the beneficiary is responsible for: marketing, recommending and creating a new 
company logo, setting strategic margins on U.S. products, making corporate structure reforms including 
changing the company's reporting method and shifting the company's database and marketing methods, 
analyzing risk management, networking including appearances as a keynote speaker at conventions, 
tradeshows and conferences, meeting with public relations firms, collaborating with a consulting firm to 
extend the petitioner's consulting services, assisting U.S. businesses to enter the Japanese market, providing 
consulting services, hiring an accounting firm, managing cash flow, and writing business books. 
The petitioner also noted that the beneficiary continued to make purchase order decisions for the parent 
company, directed the parent company's branch managers to develop niche products, employed a Japanese 
company to secure the parent corporation's database, formed a quality control task force for the parent 
company, and discontinued the parent company's telemarketing business. 
The petitioner also provided an elaborate organizational chart showing the beneficiary as president, a general 
manager and an administrative assistant with numerous proposed positions that were currently unfilled. The 
petitioner's Nevada, NUCS-4072, Employer's Quarterly Contribution and Wage Report, for the third quarter 
of 2003 confirmed the beneficiary's employment, as well as that of the general manager, and the 
administrative assistant. 
On December 13, 2004, the director determined that: (1) the description of the beneficiary's job duties was 
general and did not provide sufficient detail regarding the beneficiary's actual duties and the percentage of 
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time devoted to those duties; (2) some of the beneficiary's duties such as marketing and making purchase 
order decisions had not been shown to be managerial or executive responsibilities; (3) the petitioner did not 
possess the organizational complexity to warrant an executive position; and (4) the record indicated that a 
preponderance of the beneficiary's duties would be directly providing the services of the business. The 
director denied the petition concluding that the record did not establish that the beneficiary had been or would 
be employed in a qualifying managerial or executive capacity. 
On appeal, the petitioner asserts that: the beneficiary supervises one professional, who in turn, supervises an 
administrative assistant; the beneficiary continues to supervise positions located in Japan which will be 
moved to the United States in -the future; the beneficiary makes all management decisions and directs all 
employees; and, that denying the petition is premature. 
The petitioner's assertions are not persuasive. When examining 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.F.R. 5 204.5Cj)(5). 
The petitioner provides a general description of the beneficiary's duties, indicating that the beneficiary's duties 
include the direction of the petitioner's business policy, development of the overall corporate plan, and 
interfacing with potential and current clients. These phrases do not sufficiently define the beneficiary's actual 
duties. 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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 
1990). Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner 
has failed to answer a critical question in this case: What does the beneficiary primarily do on a daily basis? 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sma, 724 
F. Supp. at 1108. 
The petitioner indicates that the beneficiary, among other things, is responsible for marketing, recommending 
and creating a new company logo, setting strategic margins on U.S. products, networking, providing 
consulting services, assisting U.S. businesses to enter the Japanese market, and writing business books. These 
duties are more indicative of an individual performing promotional and consulting tasks for the company. As 
the director observed, an employee who primarily performs the tasks necessary to produce a product or to 
provide services is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner does not explain or further 
clarify on appeal how performing the company's market research, developing new products, and hosting or 
attending meetings are primarily executive or managerial duties. 
On appeal, the petitioner further confirms that the beneficiary is the individual responsible for developing and 
expanding the petitioner's operations and diversifying its services and product lines. The petitioner indicates 
that the beneficiary spends the majority of his time developing and sustaining client relationships and 
directing the petitioner's development and business plan. The petitioner in this matter described its purpose as 
promoting Japanese and U.S. business relationships. It is apparent that the beneficiary's primary 
responsibility is providing promotional services. Guiding a start up company in the early stages of its 
development and creating business opportunities do not constitute managing or directing the management of 
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the company in this instance. A petitioner must be sufficiently established to support a managerial or 
executive position when it filed the petition. The petitioner's intent to increase its number of employees is not 
relevant to establishing the beneficiary's current managerial or executive status. 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). 
In this matter, the petitioner has not demonstrated that the beneficiary manages or directs the enterprise or an 
essential function of the enterprise through the work of others. Although the petitioner has hired a general 
manager to assist the beneficiary in his endeavors to expand the petitioner's business, the addition of the 
"general manager" does not relieve the beneficiary from primarily providing the petitioner's everyday 
consulting and operational services. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Further, although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. In this matter, the petitioner has not 
established that either the "general manager" or the administrative assistant positions require the services of 
employees who possess or require a bachelor's degree, such that they could be classified as professionals. 
Nor has the petitioner shown that either of these employees primarily supervises subordinate staff members or 
manages a clearly defined department or function of the petitioner, such that they could be classified as 
managers or supervisors. Moreover, the petitioner has not adequately explained the necessity of the 
beneficiary's position in the United States to supervise employees located in Japan. The petitioner has not 
shown that the beneficiary's subordinate employees in the United States are supervisory, professional, or 
managerial, as required by section 101(a)(44)(A)(ii) of the Act; nor has the petitioner substantiated or 
adequately explained the beneficiary's supervision of employees located in Japan. 
The AAO notes that the petitioner has submitted numerous untranslated documents on appeal. However, the 
petitioner's failure to submit certified translations of these documents precludes the AAO from determining 
whether the evidence supports the petitioner's claims. See 8 C.F.R. 3 103.2(b)(3). Accordingly, the evidence 
is not probative and will not be accorded any weight in this proceeding. 
On review, the petitioner has not presented sufficient evidence to establish that the beneficiary's duties for the 
United States petitioner comprise primarily executive or managerial duties. 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.