dismissed EB-1C Case: Business Management

DATE: DEC 0 5 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department or Homeland Security 
u. S. Citizenship and Immigration Services 
Administrat;ve Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
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 US.c. § I IS3(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 in 
accordance with the instructions on Form 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. § 103.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
wn·w.uscis.gO\I 
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 an Illinois corporation that seeks to employ the beneficiary in the United States as its 
president and general manager. Accordingly, the petitioner endeavors to classilY the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(1 )(C) of the Immigration and Nationality Act (the 
Act), 8 US.c. § IIS3(b)(l)(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated December 17,2010, which contained 
relevant information pertaining, in part, to the beneficiary's employment abroad and with the petitioning 
entity. The petitioner also provided evidence in the form of corporate, business, and financial documents 
pertaining to both entities. 
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 May 31, 2011 informing the petitioner of 
various evidentiary deficiencies. The RFE included a request for a more detailed job description pertaining to 
the beneficiary's proposed employment with a list of the beneficiary's job duties and their time allocations. 
The director also instructed the petitioner to provide organizational charts depicting its own and the foreign 
entity's respective staffing structures and the beneficiary's placement within those structures. 
The petitioner complied with the director's request supplementing the record with the additional evidence. 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary was employed abroad and that he would be employed with the U.S. entity in a qualifying 
managerial or executive capacity. The director therefore issued a decision dated September 8, 2011 denying 
the petition. 
The petitioner has filed an appeal seeking that the director's decision be reversed. On appeal, counsel asserts 
that the director erred in finding that the job description offered in response to the RFE was deficient. 
Counsel also disputes the director's reliance on "conventional wisdom" regarding the notion that a hierarchy 
in employee salaries should serve as a basis for concluding that the beneficiary would not be employed in a 
qualifying managerial or executive capacity. 
Upon review, the AAO finds that the record contains sufficient evidence to demonstrate that the beneficiary 
was employed abroad in a qualifying capacity. Therefore, the remainder of this discussion will address the 
sole remaining ground for denial, which focuses on the beneficiary's employment capacity in his proposed 
position with the US. petitioner. While the AAO concurs with counsel's rejection of the director's reliance 
on employee salaries as an indicator of the beneficiary'S employment capacity, the AAO ultimately concludes 
that the record lacks sufficient evidence to establish that the beneticiary's employment with the U.S. entity 
would be in a managerial or 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): 
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• • • 
(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)(I )(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 issue in this proceeding is whether the record contains sufficient evidence demonstrating that the 
beneficiary's U.S. employment would be in a qualifying managerial or executive capacity. 
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 III 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. 
Page 4 
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 m 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 exammmg the executive or managerial capacity of the beneficiary, the AAO will look first 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 clearly defined job description, deeming the actual duties themselves as the 
factors that determine the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), aji'd. 905 F.2d 41 (2d. Cir. 1990). Additionally. the AAO finds that it is appropriate 
to consider other relevant factors, including the petitioner's organizational hierarchy and overall staffing, 
which establish who would actually perform the daily non-qualifying tasks. 
The job description provided by the petitioner in its RFE response is overly broad and fails to account for 
large portions of the beneficiary's time. The petitioner stated that 12.5% of the beneficiary's time would be 
allocated to directing policies and objectives, 12.5% would be allocated to supervising marketing planning, 
and another 12.5% would be spent supervising sales analysis. However, none of these broadly stated job 
responsibilities allow the AAO to gain a meaningful understanding of what specific tasks would constitute 
directing policies and objectives or supervising marketing planning and sales analysis. The petitioner was 
similarly vague about the specific tasks involved in supervising operations and technical support, which 
would consume another 25% of the beneficiary'S time. The AAO further notes that the petitioner allocated 
only 30 minutes of the beneficiary'S time to supervising personnel, despite the fact that the organizational 
chart listed seven employees under the beneficiary's direct supervision. While further clarification on the 
beneficiary's duties may have allowed the petitioner to meet its burden of proof, failure to provide specific 
information about the beneficiary'S actual daily tasks leaves the AAO unable to reach an affirmative 
conclusion as to the managerial or executive capacity of the beneficiary's proposed employment. 
In reviewing the petitioner's organizational chart, while it appears that the petitioner is staffed with personnel 
who perform its daily operational tasks, it is unclear how much of the beneficiary's time would be spent 
directly overseeing the individuals who are depicted as his direct subordinates or whether those subordinates, 
despite their managerial position titles, are managerial or professional employees. This information is crucial 
as any time spent overseeing the work of non-supervisory or non-professional employees would not be 
considered as time spent performing tasks within a qualifying managerial or executive capacity. 
While the AAO acknowledges that no beneficiary is required to allocate 100% 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 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 record as presently constituted lacks the requisite 
information necessary to establish that the primary portion of the beneficiary's time would be allocated to 
tasks within a qualifying managerial or executive capacity. Therefore, on the basis of this 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. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.