dismissed EB-1C Case: Business Development

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLtCCO'PY 
U.S. Department of 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 
DATE: MAR 1 5 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(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. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-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 Delaware corporation that seeks to employ the beneficiary as its director of business 
development. 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)(l)(C), as a multinational executive or manager. 
I. Procedural History 
The petition was filed on April 9, 2009 along with supporting documents, including a statement dated March 
31, 2009, which offered relevant information pertaining to the petitioner's corporate relationship with the 
beneficiary'S foreign employer as well as job descriptions regarding the beneficiary'S foreign and proposed 
employment. The supporting evidence also included corporate and financial documents pertaining to both 
entities as well as each entity's organizational chart depicting the respective staffing hierarchies and the 
beneficiary's placement therein. 
After reviewing the petitioner's submissions, the director determined that the petition did not warrant 
approval and therefore issued a request for additional evidence (RFE) dated September 4, 2009 instructing the 
petitioner to provide organizational charts depicting the staffing hierarchies of the beneficiary'S foreign and 
U.S. employers. The director also asked the petitioner to provide more detailed descriptions of the 
beneficiary'S foreign and proposed positions, listing the beneficiary'S specific daily job duties and the 
percentage of time the beneficiary allocated and would allocate to each task. 
The petitioner responded to the RFE by providing an October 12, 2009 statement from counsel, which 
included the requested job descriptions, and the requested organizational charts. 
The director reviewed the submitted evidence and determined that the beneficiary's proposed job description 
indicated that the beneficiary would allocate the primary portion of his time to performing non-qualifying 
tasks. Based on this finding, the director concluded that the petitioner failed to establish that the beneficiary 
would be employed in a qualifying managerial or executive capacity and therefore issued a decision dated 
February 25,2010 denying the petition. 
On March 25, 2010, the petitioner filed a Form I-290B appealing the director's decision. Counsel 
subsequently submitted an appellate brief and supporting evidence in an effort to overcome the basis for the 
adverse decision. Counsel asserts that the director's decision was erroneous, contending that the beneficiary 
spends the majority of his time planning, directing, and coordinating operational activities at the highest 
managerial level. Counsel objects to the director's likening the beneficiary'S proposed position to that of a 
sales associate and asserts that the position is more similar to that of a sales manager. 
The AAO has reviewed the record in its entirety and finds that counsel's arguments are not persuasive in 
overcoming the basis for denial. All relevant documentation that pertains directly to the key issue in this 
matter will be fully addressed in the discussion below. 
II. The Law 
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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)(1)(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) of the 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; 
(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 
Page 4 
supervisor's supervIsory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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. 
III. Legal Analysis 
The primary issue to be addressed in this proceeding is the beneficiary's employment capacity in his proposed 
position with the petitioning U.S. entity. Specifically, the AAO will examine the record to determine whether 
the supporting evidence establishes that the petitioner would employ the beneficiary in the United States in a 
qualifying managerial or executive capacity. 
In 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.P.R. § 204.5(j)(5). The goal is to elicit a detailed 
description of the beneficiary's daily job duties, 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), affd, 905 F.2d 41 (2d. 
Cir. 1990). While the AAO acknowledges that the statutory definitions do not require the beneficiary to 
allocate 100% of his or her time to managerial- or executive-level tasks, in order to meet the statutory 
requirements, the petitioner must establish that the non-qualifying tasks the beneficiary would perform are 
only incidental to the proposed position and thus would not consume the primary portion of the beneficiary's 
time. 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 
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). 
The job description provided in response to the RFE is replete with operational tasks that are directly related 
to the sale of the petitioner's services. Specifically, counsel stated that the beneficiary has been and would 
continue to be responsible for the following: conducting market research and assessing the customers' needs, 
traveling to meet with customers, seeking out business partners, negotiating contracts, identifying prospective 
customers and developing sales leads, approaching potential customers and serving as their main point of 
contact, maintaining relationships with existing clients, preparing sales and budget reports, representing the 
Page 5 
company at trade shows to attract prospective customers, and communicating with customers and providing 
them with information about the services the petitioner offers. 
Although counsel pointed out that the beneficiary is autonomous in his position and has discretionary 
decision-making authority, both of which are necessary components of either managerial or executive 
capacity, the job duties catalogued above can only be characterized as those necessary to provide services that 
are offered to the petitioner's clientele. Counsel's additional statements on appeal, which paraphrase the 
previously provided job description, establish that the beneficiary is an essential employee who plays a key 
role within the organization. The fact that the beneficiary performs essential services, however, does not 
preclude a finding that the primary portion of the beneficiary'S time would be spent performing non­
qualifying, operational tasks. 
Counsel's attempt to distinguish the beneficiary'S "complex" position from the position of a sales 
representative or a sales associate, whose job duties he characterizes as more basic sales, is not persuasive in 
light of the operational nature of the job duties the beneficiary would in fact perform. Even if the AAO fmds 
that the beneficiary's tasks are more complex than those that would normally be assigned to a sales 
representative or sales associate, the level of complexity of the beneficiary'S tasks does not establish that 
those tasks are of a managerial or executive nature. Regardless of the level of complexity or the professional 
nature of the beneficiary's tasks in his proposed position, it appears that the primary portion of the 
beneficiary'S time would be allocated to tasks that the director properly deemed as non-qualifying. 
The AAO finds that the petitioner has failed to establish that the beneficiary would be employed in a 
qualifying managerial or executive capacity. For this reason, the instant petition cannot be approved. 
Additionally, while not previously addressed in the director's decision, the AAO finds that the record lacks 
evidence to establish that: (1) the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and (2) that the petitioner and the beneficiary'S foreign employer have a qualifying relationship. 
With regard to the beneficiary'S employment abroad, the record shows that counsel failed to comply with the 
director's request for a more detailed description of the beneficiary'S specific job duties. Although a job 
description was provided in the petitioner's initial support statement dated March 31, 2009, the description 
lacked sufficient information pertaining to the beneficiary's specific job duties. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 
103.2(b)(14). As the record in the present matter lacks crucial information specifying the beneficiary'S job 
duties during his employment with the foreign entity, the AAO cannot conclude that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity pursuant to 8 C.F.R. § 204.5(j)(3)(i)(B). 
Lastly, with regard to the issue of a qualifying relationship, the regulation and case law confirm that 
ownership and control are the factors that must be examined in determining whether a qualifying relationship 
exists between United States and foreign entities for purposes of this visa classification. Matter of Church 
Scientology International, 19 I&N Dec. 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 
362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
. ' . 
Page 6 
In the present matter, the petitioner stated in its original support statement that the beneficiary's foreign 
. owned by 
which in tum is partly owned by who the petitioner claimed to be its sole owner. 
However, the record does not contain sufficient evidence of either entity's ownership. 
While the petitioner provided the minutes of a meeting that took place on August 7, 2002 wherein reference 
was made to a proposal and acceptance of the proposal for the purchase of the petitioner's shares, neither the 
proposal nor a stock certificate showing the transfer of shares to the beneficiary was provided in support of 
the reference to the sale of shares. With regard to . of the beneficiary's foreign employer, while the 
petitioner provided evidence to show that is part owner of the holding company, no 
evidence was provided to establish that the holding company has an ownership interest in the foreign 
employer. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner has not provided sufficient evidence to corroborate the assertions made with regard to the 
claimed affiliate relationship between the petitioner and the beneficiary's foreign employer and therefore does 
not meet the regulatory requirement cited at 8 C.F.R. § 204.5G)(3)(i)(C). 
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 also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.