dismissed EB-1C Case: Business Management

FILE: 
U.S. Department of Homcland Security 
U. S. Citizenship and Immigration Services 
O@ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER Date: DEC 3 O ZflBl 
IN RE: Petitioner: 
Beneficiary: 
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. Ej 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
I 
INSTRUCTIONS: 
I 
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. $ 103.5(a)(l)(i). 
\ 
PL'4./ 
Perry Rhew 
Chief, Administrative Appeals Office 
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 limited liability company organized in the State of Illinois. The petitioner seeks 
to employ the beneficiary as its president and chief executive officer. Accordingly, the petitioner 
endeavors to classifj 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. 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 disputes the director's decision and submits a brief addressing the director's 
adverse findings. 
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 fbmish 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. 
Page 3 
The primary issue in this proceeding is whether the petitioner submitted sufficient evidence to 
establish that it would employ the beneficiary in a qualifLing managerial or executive capacity. 
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; 
(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. I$ 1 101 (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 January 26, 2007, which listed 
the beneficiary's key responsibilities-financial management, sales and marketing management, 
procurement/vendor dealingslinventory management, administrative management, staff 
management, and general business expansion-and indicated the percentage of time the beneficiary 
would devote to each responsibility. The petitioner also discussed the types of job duties the 
beneficiary performed with regard to each of the six responsibilities. As the denial includes the 
primary portion of the job description the petitioner offered in support of the petition the AAO need 
not repeat this information in the current discussion.' 
On May 2, 2008, the director issued a request for additional evidence (RFE) acknowledging the 
initial job description offered in support of the Form 1-140 and instructing the petitioner to provide a 
more detailed description of the beneficiary's proposed job duties. The petitioner was asked to 
assign a percentage of time to each of the beneficiary's job duties. 
In response, the petitioner provided a letter dated July 16, 2008 in which the petitioner restated the 
job description that was previously offered in support of the Form 1-140 and offered an additional 
job description according to the director's specifications. The supplemental job description included 
the following percentage breakdown: 
1. Sales and Marketing Management (35%) 
Do price checks on the internet and fiom catalogs . . . . 5% 
Develop marketing and promotional material to attract new customers and 
promotional campaigns such as radio, magazine and newspaper 
advertisements. Develop and market new product lines . . . . 10% 
Develop and update new website to attract internet shoppers. 2.5% 
Update customer base with new customer details daily. 2.5% 
Meet with prospective, new and existing customers to develop relationships 
and promote new equipment, capabilities and range of products. 5% 
Attend a variety of networking events . . . . (weekly and monthly events) 
(1 0%) 
2. Financial Management (30%) 
Meet with the Administration Manager to review[:] 
' With regard to financial management, the first responsibility listed in the job description, the director 
omitted the portion of the job description that indicated that the beneficiary maintained banking contacts, 
supervised the bookkeeping functions to ensure reconciliation of bank statements, timely deposits, proper 
action regarding accounts payable and receivable, and timely execution of payroll. With regard to sales and 
marketing management, the beneficiary's second responsibility, the director omitted the portion of the job 
description that stated that the beneficiary would ensure client satisfaction and maintain and update the client 
database for targeted advertising purposes. 
- bank statements to determine current cash flow[;] 5% 
- accounts receivable to do age analysis and determine outstanding 
monies[;] 10% 
- accounts payable to confirm correct pricing and settlement discounts as 
agreed upon with vendors[;] 5% 
- approve payment of due accounts and sign checks issued for payment[;] 
10% 
3. Procurernentlvendor dealingslinventory management ( 1 0%) 
Review, approve and order inventory and office supplies as requisitioned 
during the day. 2.5% 
Supervise checking of delivered inventory and office supplies with [the] 
Production andlor Administration Manager to confirm correct delivery and 
prices. Arrange with [the] Production andlor Administration Manager to have 
delivered items correctly allocated to inventory. 2.5% 
Meet with vendor's representatives to discuss delivery, prices, new product 
lines, etc. 5% 
4. Staff management, Recruiting, Hiring and Training (1 5%) 
Arrange training of new and existing staff on new and existing equipment 
where required. 
Meet or accompany the Production supervisory regularly during the day to[:] 
- determine quality control, 
- discuss any operational issues[,] 
- ensure that production is running at an acceptable level[;] 
- ensure that he is updated on incoming orders so that he can schedule 
production, 
- determine inventory levels and requirements for current and upcoming 
orders[.] (1 0%) 
Regular liaison throughout the day with the Graphics Designer to ensure that 
[the] wmpany is able to meet deadlines and that designs are suitable for 
equipment and set up in accordance with the customers' requirements. (5%) 
5. Administrative Management (1 0%) 
Review and approve outgoing bids prepared by- 
e Open and respond to emails by vendors and customers or forwarded by the 
Administration Manager, Production Supervisor, or Graphics Designer. 
Meet with the Administration Manager to review: 
- delivery and invoice summary of the previous day, 
Page 6 
- outstanding orders to determine if [the] company is on track to meet 
deadlines, [and] 
- orders received and inventory required for new orders[.] (1 0%) 
In a decision dated October 31, 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 made a number of observations, including one about the petitioner's 2008 
second quarterly Employer's Contribution and Wage Report as well as the amount of the 
beneficiary's compensation. The director found that the quarterly report indicated that all but one 
employee was employed on a part-time basis and hrther noted that the beneficiary's salary was not 
commensurate with that of a multinational manager or executive. 
With regard to the first comment, the AAO notes that the Form 1-140 in the present matter was filed 
on February 2, 2007. As the goal in the present matter is to establish whether the petitioner was 
eligible for the immigration benefit at the time of filing, the AAO questions the relevance of a 2008 
quarterly wage report, which reflects salaries and wages paid more than one year after the petition 
was filed. The AAO also observes that while some of the salaries and/or wages are indicative of 
part-time employment, approximately eight of the thirteen individuals named in the report were 
shown as having been remunerated salaries that were commensurate with those of full-time 
employees. Therefore, the director's comment is neither relevant nor accurate based on the evidence 
submitted. 
With regard to the director's finding concerning the beneficiary's salary, the AAO notes that there is 
no statutory or regulatory provision that requires a petitioner to meet a salary requirement for the 
beneficiary. Moreover, there is no precedent case law to support the idea that a beneficiary's 
proposed salary is indicative of whether the proposed job duties would be within a qualifying 
managerial or executive capacity. 
In light of the above, the AAO hereby withdraws the director's inappropriate findings, which will 
have no bearing on the outcome in this proceeding. Nevertheless, a thorough review of the 
petitioner's submissions indicates that the director was ultimately correct in concluding that the 
petitioner failed to establish that the beneficiary would be employed in a qualifying managerial or 
executive capacity. 
On appeal, counsel states that the beneficiary is the petitioner's top-level executive with the highest 
degree of authority with respect to the company's operations. Counsel restates the job description 
that the petitioner provided in response to the and contends that the director offered a limited 
analysis of the beneficiary's proffered employment, focusing primarily on the definition of 
managerial capacity without providing a similar evaluation of the beneficiary's job description 
within the context of the definition of executive capacity. 
While counsel admittedly points out various weaknesses in the director's analysis, she fails to 
establish that the petitioner was eligible for the immigration benefit sought at the time the Form I- 
140 was filed. 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.F.R. $ 204.50)(5). In the present 
matter, the AAO finds that the job description the petitioner provided in response to the RFE was 
sufficient to convey a meaningful understanding of the types of job duties the beneficiary would 
carry out in his proposed position. However, the job description does not establish that the 
beneficiary's time would be primarily devoted to tasks of a qualifying nature. For instance, the 
petitioner stated that the beneficiary's main responsibilities would include sales and marketing 
management, inventory management through vendors, and administrative management. While the 
petitioner used the term "management" with respect to all three responsibilities, the petitioner cited 
primarily non-qualifying job duties in its explanation of how the beneficiary plans to hlfill these 
responsibilities. 
More specifically, the job description indicates that the beneficiary would not merely manage the 
sales and marketing, but rather that he himself would actually carry out all the duties associated with 
creating the necessary marketing material to promote the petitioner's services. Similarly, the 
beneficiary's role with regard to inventory would not be limited to management, but rather would 
include actually contacting and meeting with vendors. The beneficiary would also perform various 
human resource and administrative tasks, including arranging training for personnel, composing and 
answering emails, and tracking customer orders to ensure that deadlines are being met. 
It is noted 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 (Comrn. 1988). While counsel points out that the beneficiary would not actually 
perform any of the tasks associated with providing customers with the finished printing product, 
there are other non-qualifying tasks that would be assigned to the beneficiary. Based on the 
percentages assigned to the beneficiary's non-qualifying tasks, the AAO cannot conclude that the 
primary portion of the beneficiary's time would be devoted to tasks within a qualifying managerial or 
executive capacity. 
Lastly, despite counsel's assertion that the size of the petitioner's staff is not a determining factor in 
whether a beneficiary would primarily perform qualifying tasks, federal courts have generally agreed 
that U.S. Citizenship and Immigration Services (USCIS) "may properly consider an organization's 
small size as one factor in assessing whether its operations are substantial enough to support a 
manager. " Family, Inc. v. US. Citizenship and Immigration Services, 469 F. 3d 1 3 1 3, 1 3 1 6 (9th Cir. 
2006) (citing with approval Republic qf Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin 
Rros. Co. v. Suva, 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). Thus, the director's consideration of the petitioner's staff was not 
improper and, in fact, would have been justified, if the right information was considered, as an 
analysis of the petitioner's support staff enables USCIS to assess the petitioner's overall ability to 
relieve the beneficiary from having to primarily perform the daily operational tasks. 
In the present matter, while the organizational chart submitted in response to the RFE clearly meets 
the requirements specified by the director, the chart does not help USCIS establish the petitioner's 
Page 8 
staff at the time the petition was filed. Regardless of whether the petitioner's organization was 
adequately staffed at the time the was issued, 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 ofKatighak, 14 I&N Dec. 45,49 (Comm. 1971). 
Counsel cites Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the 
proposition that the small size of a petitioner will not, by itself, undermine a finding that a 
beneficiary will act in a primarily managerial or executive capacity. First, the AAO notes that 
counsel has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in Mars Jewelers, Inc., where the district court found in favor of the plaintiR With respect to 
Mars Jewelers, the AAO is not bound to follow the published decision of a United States district 
court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). 
Although the reasoning underlying a district judge's decision will be given due consideration when it 
is properly before the AAO, the analysis does not have to be followed as a matter of law. Id. at 71 9. 
In Mars Jewelers, Inc., the court emphasized that the former INS should not place undue emphasis 
on the size of a petitioner's business operations in its review of an alien's claimed managerial or 
executive capacity. The AAO agrees and has long interpreted the regulations and statute to prohibit 
discrimination against small or medium-size businesses. However, consistent with both the statute 
and the holding of the Mars Jewelers, the petitioner is required to establish that the beneficiary's 
position consists of primarily managerial or executive duties and that the petitioner will have 
sufficient personnel to relieve the beneficiary fiom performing operational andlor administrative 
tasks. The AAO emphasizes that our determination is based on the conclusion that the beneficiary is 
not primarily performing managerial duties; our decision does not rest on the size of the petitioning 
entity. 889 F.2d at 1472, n.5. 
Section 101 (a)(44)(C) of the Act requires the AAO to "take into account the reasonable needs of the 
organization, component, or function in light of the overall purpose and stage of development of the 
organization, component, or function." Reading section 101(a)(44) of the Act in its entirety, the 
"reasonable needs" of the petitioner may justify a beneficiary who allocates 51 percent of his duties 
to managerial or executive tasks as opposed to 90 percent, but those needs will not excuse a 
beneficiary who spends the majority of his or her time on non-qualifying duties. The reasonable 
needs of the petitioner will not supersede the requirement that the beneficiary be "primarily" 
employed in a managerial or executive capacity as required by the statute. See Brazil Quality Stones 
v. Chertoff; 53 1 F.3d 1063, 1070 n. 10 (9th Cir., 2008). 
In summary, despite counsel's numerous attempts to point out weaknesses in the director's analysis, 
such weakness cannot serve as a basis for sustaining this appeal and approving the petitioner's Form 
1-1 40. While the director's decision was flawed, the AAO must conclude that the director's ultimate 
determination was correct. As noted above, the petitioner must establish that the petitioner was 
eligible for the immigration benefit sought at the time the Form 1-240 wasfiled. Matter of Katighak, 
14 I&N Dec. at 49. Based on the evidence and information submitted in the present matter, the 
petitioner has not established that the primary portion of the beneficiary's time would be devoted to 
Page 9 
tasks within a qualifying managerial or executive capacity. Therefore, on the basis of this 
conclusion, the instant petition cannot be approved. 
Additionally, beyond the decision of the director, the record lacks sufficient evidence to establish 
that the petitioner has met the filing requirement specified at 8 C.F.R. $204.5(j)(3)(i)(D). The 
regulation requires the petitioner to establish that it has been doing business for at least one year 
prior to filing the Form 1-140. Furthermore, the regulation at 8 C.F.R. 5 204.5(j)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods andlor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." 
Based on the petition's filing date of February 2, 2007, the above regulatory provision requires the 
petitioner to establish that it was doing business as of February 2, 2006, or one year prior to filing. 
Although the Form 1-140 states that the petitioning corporation has been doing business since 1958, 
the Illinois Form LLC-5.5 indicates that the petitioner was not incorporated until April 26, 2006, 
only nine months before filing this petition. The AAO also notes that the petitioner purchased the 
printing business on December 21, 2006, or one month and twelve days before filing the petition. 
Accordingly, the petitioner has failed to establish that it had been doing business for at least one year 
prior to filing the Form I- 140, a requirement under the law. 
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), afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989) (noting that the AAO reviews appeals on a de novo basis). 
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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.