dismissed EB-1C Case: Business Development

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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: JAN 2 8 ZO1g 
LIN 08 007 55895 
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. § 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 or reopen, as required by 8 C.F.R. ij 103.5(a)(l)(i). 
verry Rhew 
Chief, Administrative Appeals Office 
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 vice president for 
business development. 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 determined that the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity and denied the petition on 
that basis. 
On appeal, counsel argues that sufficient evidence was submitted to establish that the beneficiary would be 
employed in a qualifying capacity. 
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 is whether the petitioner would employ the beneficiary in a qualifying 
managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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. 5 1 10 l(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 fi-om 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 August 14, 2007 in which it claimed that 
the beneficiary would be employed in a managerial capacity. The petitioner also provided a description of the 
proposed employment, claiming that 50% of the beneficiary's time would be devoted to managing a 
professional staff; managing the company's operations, including pricing and policies, by reviewing local 
market conditions, competition, and product popularity; overseeing purchasing of gasoline, lubricants, 
groceries, and supplies; and setting labor apportionment policies to control costs. The petitioner stated that 
20% of the beneficiary's time would be spent overseeing financial activity, setting the budget for 
expenditures, monitoring performance and profitability, and planning the company's development and 
expansion; another 20% of the beneficiary's time would be spent developing employee training programs and 
supervising managers and assistant managers to ensure efficiency and good customer service; and the 
remaining 10% of the beneficiary's time would be spent hiring and appointing staff to head the various 
company departments. 
The petitioner also provided its organizational chart, which shows the beneficiary directly subordinate to the 
president. The chart shows that the beneficiary's immediate subordinates include an operations manager, who 
supervises two facility managers and a purchase manager, and a marketing manager, who oversees an 
assistant accounts manager and five assistant managers. According to the chart, all of the employees of the 
company are managers. 
On August 27, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a more detailed description of the beneficiary's proposed employment, including a list of the actual 
day-to-day tasks the beneficiary would perform and the approximate percentage of time that would be 
attributed to each of the listed tasks. The petitioner was also asked to provide a detailed organizational chart 
with all the names and departments that comprise the petitioner's organizational hierarchy. 
In response, the petitioner provided a letter from counsel dated October 6, 2008 in which counsel provided a 
supplemental job description for the beneficiary's proposed U.S. employment. Counsel separated the 
beneficiary's key responsibilities into four main categories, each of which was assigned a percentage of time 
the beneficiary would devote to the job duties within that category. The first category-managing essential 
functions of the organization-was allotted 25% of the beneficiary's time. The responsibilities that fall into 
this category would include general management activities, establishing company policies, negotiating long- 
term agreements with vendors, negotiating for expansion, and initiating the process to reevaluate the 
company's assets. Counsel provided the following list of examples of specific actions taken by the 
beneficiary in his management of essential functions: evaluating existing policies and market conditions to 
affect a price change with regard to various items the petitioner currently sells; negotiating agreements with 
vendors who provide the petitioner's inventory and supplies; obtaining a new appraisal of the petitioner's 
property, which led to renegotiations with vendors to get better prices on various products; and make policies 
to control costs. 
The second category-general management of the company-was allotted another 25% of the beneficiary's 
time. The responsibilities that were listed in this category include overseeing financial activities, setting a 
budget for expenditures, monitoring performance and profitability, and planning for the development and 
expansion of the company. Counsel also provided examples of steps the beneficiary has taken to manage the 
company, including meeting weekly with the company's accounts manager to assess the company's finances 
and review the availability of funding for new projects and expansion activities; accompanying the finance 
manager in meeting with bankers regarding financing and refinancing options, meeting with brokers in an 
effort to obtain new property for development, and assisting the finance manager in appointing contractors for 
the expansion activities; and using his discretionary authority to appoint contractors, rather than company 
employees, to carry out certain tasks, such as conducting a traffic study for a new project. 
The third category--exercising discretion over daily activities-was allotted 30% of the beneficiary's time. 
Examples that counsel listed within this category include the following: meeting with the saleslmarketing and 
purchase managers to discuss plans to promote the company through advertising and coupons and supervising 
holiday celebrations; deciding to install a "Pump Top TV" to provide the petitioner with additional advertising 
and attract customers; meeting regularly with the operations manager to retain companies to conduct state- 
required training and to appoint vendors to conduct environmental safety testing of the facility; and deciding 
to develop a training program to improve employee skills. 
The fourth category, which was left untitled, was allotted the remaining 20% of the beneficiary's time and 
includes supervising and controlling the work of supervisory employees, exercising discretion with regard to 
personnel-related issues, and supervising managers and assistant managers to ensure efficiency and good 
customer service. Counsel stated that the beneficiary oversees 14 employees and reviews new hires for the 
managerial or assistant manager positions, including checking each candidate's background and references 
checks as well as sitting in on the interviews. The beneficiary also reviews the work of managers and 
assistant managers and makes decisions regarding raises and promotions. 
The petitioner also provided its organizational chart and corresponding employee list both of which reflect the 
petitioner's staffing as of August 2008. 
In a decision dated December 4, 2008, the director denied the petition, concluding that the petitioner failed to 
establish that it would employ the beneficiary in a qualifying managerial or executive capacity. The director 
found it unreasonable for an eight-person entity to employ two workers who are involved primarily in 
directing the management of the organization. The director pointed out that in the documentation submitted 
at the time of filing the petitioner stated that it had 12 employees, indicating that there in an inconsistency 
between the organizational chart and the petitioner's other submissions. However, the AAO notes that the 
director's observation was incorrect, as the petitioner's organizational chart lists a total of twelve employees, 
the number of employees the petitioner initially claimed in the Form 1-140. 
Nevertheless, other deficiencies, which the AAO will address below, indicate that approval of the petition was 
not warranted and that the director's overall conclusion regarding the petitioner's eligibility was correct. 
On appeal, counsel contends that the beneficiary manages all aspects of the petitioner's business, including 
two managerial employees, who are the beneficiary's direct subordinates. Counsel points out that the 
petitioner is fully staffed to ensure that the beneficiary is relieved from having to engage in any of the 
activities related to the retail business. Counsel also focuses on the beneficiary's degree of discretionary 
authority, pointing out the beneficiary's authority with regard to personnel decisions, issues regarding sales 
and marketing, the petitioner's finances, and all aspects of the petitioner's business expansion. 
While the above factors are all material to an overall analysis of the beneficiary's employment capacity, the 
regulation at 8 C.F.R. $ 204.5(j)(5) requires that the petitioner provide a detailed description of the job duties 
the beneficiary would be expected to perform in his proposed position. 
In the present matter, the RFE provided express instructions as to the content of the job description and the 
format in which it was to be presented. Specifically, the petitioner was asked to list the beneficiary's actual 
daily tasks and to assign a percentage of time that would be allotted to each task. These instructions indicate 
that the purpose of the RFE was to elicit very specific information about the activities that the beneficiary 
would perform and the amount of time that would be allotted to qualifying job duties versus the non- 
qualifying ones. Instead of complying with the director's express instructions, counsel used broad job 
responsibilities and examples of various ways in which the beneficiary has used his discretionary authority to 
describe the beneficiary's proposed employment. Counsel cited very few of the beneficiary's specific tasks 
and assigned a percentage of time to each of four broad categories that were used to compartmentalize the 
overall job responsibilities. For instance, counsel indicated that 25% of the beneficiary's time would be spent 
performing tasks associated with the first category, i.e., managing an essential function. Although performing 
management functions and establishing policies are included within this category, it is unclear which specific 
tasks the beneficiary undertakes in meeting these responsibilities. 
 It is noted that the examples counsel 
provided in his effort to convey a clearer understanding of these broad responsibilities fail to specify any daily 
tasks. For example, counsel stated that the beneficiary evaluates existing marketing policies to determine 
when a change in pricing is required. However, there is no explanation as to how the beneficiary obtains 
information regarding local marketing conditions, competition, and popularity of certain merchandise, all of 
which serve as the foundation for the beneficiary's ultimate determination of when a price change is 
warranted. Counsel also included long-term vendor negotiation and negotiation for expansion in this first 
category of essential management functions. However, the petitioner has not established that the beneficiary's 
negotiating responsibilities translate into qualifying managerial or executive tasks. 
Counsel indicated that the beneficiary would attribute another 25% of his time to the second category- 
general management of the company-which includes overseeing the company's financial activities. Counsel 
stated that such oversight requires the beneficiary to accompany the finance manager to meetings with 
bankers and contractors. However, it is unclear how attending meetings with bankers to discuss financing and 
refinance or attending meetings with appointing contractors to assume certain tasks with regard to the 
company's expansion can be readily understood as qualifying duties. While meeting with the accounts 
manager to review funding may be deemed a qualifying task, the petitioner's original organizational chart, 
which was submitted at the time of filing, does not include an accounts manager position. Based on the 
information conveyed in the organizational chart that was submitted in response to the RFE, it appears that 
the accounts manager position was filled after the Form 1-140 was filed. A petitioner must establish 
eligibility based on the facts and circumstances that exist 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). 
The third category indicates that it consists of tasks that illustrate the beneficiary's use of his discretionary 
authority over daily activities-a category that was assigned 30% of the beneficiary's time. The category 
included such duties as meeting with the saleslmarketing, purchase, and operations managers. However, it is 
unclear how much of the beneficiary's time was allotted to meeting with each of the different managers. This 
information is particularly important with regard to the beneficiary's supervision of the purchase manager, 
who, according to the organizational chart submitted at the time of filing, had no subordinate employees and 
was therefore not a managerial or supewisory employee, despite what his position title may indicate. See 
section 10 1 (a)(44)(A)(ii) of the Act. 
The fourth and final category, to which 20% of the beneficiary's time was allotted, has no general heading, 
but rather cites the beneficiary's supervisory responsibilities with respect to the petitioner's supervisors, 
managers, and assistant managers. It is unclear how these job responsibilities can be distinguished from those 
referenced in the third category, as both clearly indicate that the beneficiary has supervisory authority over the 
company's employees. The examples counsel cites to explain how the beneficiary carries out his supervisory 
role merely restate other information that was previously provided. For instance, counsel stated that the 
beneficiary supervises the accounts and marketing departments and the company's managers and assistant 
managers. Reciting these job responsibilities does not provide a clearer explanation of how these 
responsibilities would be carried out. Counsel also stated that the beneficiary ultimately evaluates each 
candidate that would assume a management or an assistant management position. However, it is unclear how 
much of the beneficiary's time would actually be attributed to this task, nor is there any indication that due 
consideration was given to the petitioner's specific needs and whether those needs include frequently hiring 
managers and assistant managers. While the petitioner may need to fill these positions more frequently in the 
future, given its plans to expand its business, it is not apparent that the petitioner had such hiring needs at the 
time of filing, thereby leading the AAO to question how much of the beneficiary's time would be attributed to 
tasks associated with the hiring of managerial employees. 
Lastly, in contrast to the job description counsel provided in response to the RFE, counsel's statement on 
appeal focuses significantly on the beneficiary's involvement in overseeing all aspects of the petitioner's 
installation of a new car wash. Counsel states that the beneficiary oversaw the safety and operations training 
of all company employees once the new canvash was installed. The duties associated with such oversight, 
which presumably involve overseeing contractual employees, cannot be deemed as qualifying. The 
beneficiary's oversight of other such projects gives rise to similar questions, which can only be addressed with 
a specific explanation of the beneficiary's actual daily tasks. The actual duties themselves reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 
F.2d 41 (2d. Cir. 1990). 
Counsel equally focuses on the beneficiary's significant role as the key employee charged with the expansion 
of the petitioner's business. While such a role relieves the beneficiary from having to perform the operational 
tasks associated with the petitioner's current retail business, it is not apparent that the duties associated with 
the expansion, including interacting with brokers who would find and contractors who would develop 
property that would house the petitioner's additional retail locations, can be deemed as qualifying. 
The petitioner has failed to provide a detailed description of the beneficiary's proposed job duties, which 
prevent the AAO from being able to assess whether they would be primarily managerial or executive in 
nature as of the date the petition was filed. Furthermore, based on the additional information provided by 
counsel in the appellate brief, it appears that a portion of the beneficiary's time, which the petitioner has failed 
to adequately account for in either of the provided job descriptions, would be devoted to overseeing the 
petitioner's business expansion, a project that would involve non-qualifying tasks. In view of these findings, 
the AAO cannot conclude that the beneficiary's proffered position would primarily involve the performance 
of tasks within a qualifying managerial or executive capacity. On the basis of this conclusion, 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. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.