dismissed EB-1C Case: Business Development

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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice ofAdminisbative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: LIN 07 174 54 136 OFFICE: NEBRASKA SERVICE CENTER Date: MAR 0 4 2010 
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. 8 103.5 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. 5 103.5(a)(l)(i). 
u 
Perry Rhew 
Chief, Administrative Appeals Office 
LIN 07 174 54136 
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 president of international 
business development and marketing. 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 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 submits a brief 
asserting that the beneficiary would be employed in an executive 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 submitted sufficient evidence to establish that 
the beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
LIN 07 174 54136 
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(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. 3 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 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 May 16, 2007 in which the petitioner 
stated that the beneficiary's proposed position would include managing all aspects of the daily operation; 
supervising employees as well as hiring and firing employees; and establishing company goals and policies. 
In another letter, also dated May 16, 2007, the petitioner further added that the beneficiary would set sales 
goals, develop business strategies, and evaluate new projects. 
On September 26, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner 
to provide a more detailed description of the beneficiary's proposed position. The petitioner was asked to list 
specific job duties and to assign a percentage of time that the beneficiary would devote to each task. The 
director asked the petitioner to identify the individuals that perform the customer service, bookkeeping, 
troubleshooting, and other such operational tasks in the course of the petitioner's daily operation. 
Additionally, the petitioner was instructed to provide a copy of its organizational chart. 
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In response, the petitioner provided the following breakdown of the beneficiary's proposed position: 
50% Marketing Software Products. 
Attend industry exhibitions worldwide. Develop and place advertisements in selected 
industry magazines/publications. Publish WinWor[l]d magazine . . . . Conduct direct 
marketing to potential customers. Set sales goals; develop marketing strategies to achieve 
those goals. Provide quarterly updates and data to [the foreign entity] detailing the results. 
20% Manage Existing Clients, Customize local software 
Regularly visits existing clients seeking further marketing opportunities and, in some cases, 
provide customized software solutions for specific needs. All software products are 
developed in Turkey, but certain on-sight modifications and adaptations can be developed at 
the customer's location. [The beneficiary] is qualified to provide limited software 
customization support. . . . 
15% Seek Capitol Investment from [the] U.S. Window Industry 
Expansion via direct investment is a practical and beneficial opportunity for [the petitioner] to 
more quickly research customers in the global marketplace. [The beneficiary] regularly 
evaluates investment proposals and seeks out certain business combinations that would allow 
[the petitioner] to rapidly expand its operations. . . . 
10% Publish Win World magazine 
Seek paid advertising to support publications and printing costs. Send WinWorld to 2,500 
window companies on a bi-monthly basis. . . . [The beneficiary] has executive 
responsibilities for ad sales and article production in the U.S. . . . 
5% Manage day-to-day operations, including all personnel decisions 
[The beneficiary] is the general manager of the U.S. office and therefore is responsible for 
managing the daily operations of the office-licensing, rent, staffing, tax issues, etc. . . . 
The petitioner indicated that a sales person and a bookkeeper are both contracted and that a customer service 
employee and an office administrator are both employed on a part-time basis. The petitioner also added that 
the part-time customer service employee handles the technical aspects of the business, including 
troubleshooting and software installation, when necessary. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to establish 
eligibility for the immigration benefit sought and therefore issued a decision dated January 22, 2009, denying 
the petition. The director concluded that the petitioner failed to establish that it would employ the beneficiary 
in a qualifying managerial or executive capacity. 
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On appeal, counsel asserts that the job description submitted in response to the RFE establishes that the 
beneficiary's job duties satisfy the criteria enumerated in the definition of executive capacity. Counsel 
contends that the beneficiary is responsible for directing the management of the petitioning entity, which 
includes setting the company's goals and policies as well as choosing the business opportunities that the entity 
would pursue. Counsel's argument in this regard, however, is not persuasive, as the beneficiary's key policy- 
making role and discretionary authority are not instructive as to the nature of the job duties the beneficiary 
would primarily perform. It is possible, particularly where a petitioner lacks the organizational complexity or 
adequate support staff, for a beneficiary to assume the top-most position within an organization's hierarchy 
while still having to perform the daily operational tasks that are necessary to ensure that the petitioner 
continues to function. It is noted, however, that 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). 
Therefore, while policy-making and discretionary authority are both undeniably necessary components of 
managerial and executive capacity positions, U.S. Citizenship and Immigration Services (USCIS) must first 
examine the petitioner's description of the proposed job duties before concluding whether or not the proposed 
position would be within a qualifying capacity. See 8 C.F.R. 9 204.5(j)(5). USCIS will also consider the 
petitioner's organizational hierarchy in order to determine whether the company is adequately staffed with 
support personnel such that the beneficiary would be relieved from having to primarily perform non- 
qualifying tasks. 
In the present matter, the petitioner indicated that 50% of the beneficiary's time would be attributed to 
marketing software products, which would include attending industry exhibitions, developing and placing 
advertisements, publishing a magazine, conducting direct marketing, setting sales goals, and updating the 
foreign entity with quarterly reports. Despite the fact that the job duties associated with marketing the 
product are indicative of daily operational tasks, the petitioner did not specify how much of the beneficiary's 
time would be attributed to each duty. The petitioner also failed to state what specific tasks would be 
involved in setting sales goals, thus leaving open the possibility that additional non-qualifying tasks may be 
associated with this broad job responsibility. Although the petitioner stated that the beneficiary would devote 
10% of his time to publishing a magazine, the primary task associated with this responsibility is seeking paid 
advertisers to support the publication. The AAO notes that this is a daily operational task necessary to 
provide a product. See sections 101(a)(44)(A) and (B) of the Act. 
The petitioner also indicated that the beneficiary would spend 20% of his time visiting clients to further 
promote the company's product and provide software solutions for customers' specific needs. Despite the 
claim that the petitioner employs a customer service representative, the petitioner readily states that at least 
some portion of the customer-related tasks would continue to be taken on by the beneficiary, thus adding to 
his list of non-qualifying tasks. 
The AAO further notes that in evaluating the petitioner's organizational hierarchy, it is not readily apparent 
that the petitioner has the required support staff to relieve the beneficiary from having to perform non- 
qualifying tasks. Although a determination of the beneficiary's proposed employment capacity cannot be 
based solely on the size of the petitioning entity, USCIS can and should consider the size of the petitioner's 
support staff in order to gauge the company's ability to employ the beneficiary in a primarily managerial or 
LIN 07 174 54136 
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executive position. See Family, Inc. v. US Citizenship and Immigration Services, 469 F.3d 13 13, 13 16 (9th 
Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 199 1); 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). 
In the present matter, while the petitioner claimed four employees at the time of filing, the petitioner's 2007 
corporate tax return shows that the petitioner paid only $7,439 in salaries and wages the year during which the 
1-140 was filed. Based on this information, it is not apparent that the petitioner employed an adequate support 
staff to relieve the beneficiary from having to perform non-qualifying tasks. In light of the above, the AAO 
cannot conclude that the petitioner had progressed to a stage of development that would require the 
employment of a primarily managerial or executive employee. Moreover, the job description submitted 
strongly indicates that the primary portion of the beneficiary's time would be spent performing daily 
operational tasks rather than tasks within a managerial or executive capacity. Therefore, on the basis of this 
initial conclusion, 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. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.