dismissed EB-1C Case: Business Management

Identifying data deleted to 
prevent clearly unw~ted 
invasion of personal pnvacy 
PUBLIC COpy 
DATE: FEB 0 7 2012 
INRE: Petitioner: 
Beneficiary: 
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 
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 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.usds.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 an Ohio corporation that seeks to employ the beneficiary as an executive. 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. § l1S3(b)(1)(C), as a multinational 
executive or manager. 
The director denied the petition based on two adverse findings. The director determined that the petitioner 
failed to establish that: (1) the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and (2) the beneficiary would be employed in the United States in a managerial or executive 
capacity. 
On appeal, counsel disputes the director's decision and asserts that the beneficiary is a senior-level executive. 
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 I 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. 
The two primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether sufficient evidence has been submitted to establish that 
the beneficiary was employed abroad and would be employed in the United States in a qualifying managerial 
or executive capacity. 
Page 3 
Section 10 1 (a)(44)(A) ofthe 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. 
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 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 provided a number of letters from the beneficiary's foreign 
business associates all who made positive statements concerning the beneficiary's good character, which they 
claimed to know as a result of their individual associations with the beneficiary in the course of business. 
However, none of the petitioner's submissions included a description of the beneficiary's employment 
abroad. Although counsel submitted a letter dated June 2,2008 in support of the petition, he did not provide a 
description of the beneficiary's employment abroad and instead attempted to incorporate by reference 
"previous L-1A approvals" and supporting documents as evidence of the beneficiary's claimed qualifying 
employment abroad. The AAO notes that each nonimmigrant and immigrant petition is a separate record of 
Page 4 
proceeding with a separate burden of proof and must therefore stand on its own individual merits. u.s. 
Citizenship and Immigration Services (USCIS) is not required to assume the burden of searching through 
previously provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. Moreover, the approval of a nonimmigrant petition m no way 
guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. 
Nevertheless, among the supporting documents the petitioner provided is the foreign entity's organizational 
chart in which the beneficiary is depicted at the top of the hierarchy, followed by a vice president and a 
manager in descending order. The remainder of the staff included one delivery clerk, one warehouse clerk, 
and two sales clerks, all of whom were supervised by the company manager. 
With regard to the beneficiary's proposed employment with the petitioning entity, counsel stated that the 
beneficiary "guides the course of the business's activities" and will allocate his time as follows: 
• Formulate corporate direction, long and short-term goals, objectives and policies: 5 hours per 
week. 
• Review and direct the financial position of the company. This includes budgeting, money 
management, monitor[ing] inventory, payroll and purchasing supervision, as well as record 
keeping and asset maintenance: 5 hours per week. 
• Develop business contacts, establish professional relationships: 10 hours per week. 
• Plan and supervise marketing, sales and promotional activities: 10 hours per week. 
• Explore new growth opportunities and liaise with other contacts. 10 hours per week. 
Counsel further stated that the beneficiary would be employed both in a managerial and in an executive 
capacity in that he will do the following: manage the operation as well as an essential function, exercise 
discretionary authority over personnel and over daily operations, supervise professionals, direct the 
management of the organization, establish the goals and policies, make discretionary decisions, and receive 
only general input from other executives. 
1 
In support of counsel's statements, the petitioner provided a copy of its organizational chart, which depicts the 
beneficiary as head of the organization followed by a vice president as his direct subordinate. The third tier of 
the hierarchy includes an office manager, an accounts clerk, and a housekeeping manager. Finally, the chart 
shows four front desk clerks as subordinates of the office manager and three housekeepers and one laundry 
person as subordinates of the housekeeping manager. 
1 Counsel went on to discuss the beneficiary's prominent role in operating "a complex, multi-tiered business operation," 
making repeated references to the beneficiary's positions in two other U.S. businesses of which the beneficiary is a 
principal owner. The AAO notes, however, that these entities are separately incorporated and thus are not part of the 
petitioning entity. Only the petitioner's eligibility will be addressed in the present matter as the Form 1-140 was filed by 
the petitioning entity in its pursuit to employ the beneficiary within its own organization. Any tasks the beneficiary 
plans to perform in other organizations, regardless of whether such tasks are qualifying or not, are irrelevant for the 
purpose of determining the petitioner's eligibility and thus will not be addressed in this proceeding. 
Page 5 
In view of the various evidentiary deficiencies, the director issued a request for additional evidence (RFE) 
dated July 7, 2009. In an effort to elicit further evidence of the beneficiary's employment capacity in his 
foreign and proposed positions, the director instructed the petitioner to provide a detailed description of the 
beneficiary's actual daily job duties in his prior position with the foreign entity and in his prospective position 
with the U.S. entity. The petitioner was asked to indicate what percentage of time the beneficiary allocated 
and would allocate to each listed job duty and to refrain from grouping several tasks together. The director 
also instructed the petitioner to provide organizational charts for the u.s. and foreign entities listing each 
organization's employees and supplementing the charts with detailed employee job descriptions. 
In response, counsel provided a statement dated September 10, 2009 in which he referred to the beneficiary as 
"the senior level executive both in Kenya and in the U.S." and stated that the beneficiary has been and would 
continue to be responsible for operational, financial, and organizational direction; controlling expenses, fiscal 
management, and budget planning; determining and implementing operational policies; and making hiring 
decisions and supervisory policies. Although counsel also provided a description that included an hourly 
breakdown of the beneficiary'S "typical work week, as divided among (3) U.S. entities," he failed to focus 
specifically on the beneficiary'S role within the petitioning entity. The breakdown included the following: 
• Act as financial officer, supervising and monitoring all aspects of business operations: 15 
hours per week. 
Duties encompass: weekly, quarterly, annual budget preparation and monitoring; general 
administration of companies' assets and liabilities; negotiate contracts with vendors; 
maintenance of inventories at profitable levels; determine policies for control of shortage. 
• As operating officer, monitor compliance with federal rules, state and county regulations: 10 
hours per week. 
Duties encompass: general inspections for policing all sites for code enforcement purposes to 
work with managers regarding health, safety, insurance, etc., requirements are met. 
• As public relations representative: 5-10 hours per week. 
Duties encompass: Placement and review of advertising, marketing and public relations 
activities, including general liaison to the public. 
• As senior personnel executive: 5-10 hours per week. 
Duties encompass: Provide organizational and operational direction for functions and 
services through meetings and directives to the corporate managers. 
A similar job description was provided on the petitioner's letterhead in a statement dated August 30, 2009, 
which indicated that the above description was also applicable to the beneficiary's employment with the 
foreign entity. 
With regard to the request for an organizational chart, counsel stated that the chart which was initially 
submitted in support of the petition reflected the staffing at the time the petition was filed. Based on the 2008 
second quarterly wage report, which the petitioner submitted in response to the RFE, the organization may 
have had up to thirteen employees at the time of filing. However, as five of the named employees did not 
work the full thirteen weeks that comprised the second quarter, the exact number of employees at the time of 
filing is unclear and could have been as low as eight. Furthermore, at least one of the eight employees who 
Page 6 
worked the full thirteen weeks, i.e., the accounts clerk, was compensated a wage that was not commensurate 
with that of a full-time employee. The AAO further notes that the individual who was named as the vice 
president in the organizational chart was not listed among the employees in any of the petitioner's quarterly 
wage reports for 2008. 
With regard to the beneficiary's employment with the foreign entity, the petitioner did not provide a separate 
job description apart from the one included in the August 30, 2009 statement. The petitioner also provided an 
organizational chart that is different from the organizational chart that was originally submitted in support of 
the petition. Specifically, although both charts show the beneficiary in the position of president and_ 
in the position of vice president, the more recently submitted chart shows _ in the position of 
warehouse manager supervising a temporary warehouse staff, whereas the original chart showed this 
individual to be a manager overseeing a delivery clerk, a warehouse clerk, and two sales clerks. Additionally, 
the latter chart indicates that is a sales manager with one sales person as his direct subordinate, 
whereas the original chart indicated was a warehouse clerk with no subordinates. Lastly, 
while the second chart lists a customer service manager and shows that_ is his direct subordinate, 
the original chart indicates that_ was one of two sales clerks both of whom were shown as being 
supervised by _the manager. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In a decision dated October 29, 2009 the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary was employed abroad and would be employed in the United States in a 
qualifying managerial or executive capacity. With regard to his conclusion concerning the beneficiary's 
employment abroad, the director observed that the job descriptions provided in response to the RFE were not 
in accordance with the director's instructions, which expressly requested the petitioner not to group several 
tasks together, but rather to list the tasks individually and to assign time constraints to each task. The director 
also noted that a number of the job duties used to describe the beneficiary's employment were not managerial 
or executive. Lastly, the director pointed out the anomalies between the two distinct organizational charts that 
were seemingly intended to account for the same time period ofthe beneficiary's employment abroad. 
With regard to the beneficiary's proposed employment with the petitioning entity, the director noted that there 
were discrepancies between the information provided in the petitioner's organizational chart and information 
that was provided in the petitioner's second quarterly wage report. The director also reviewed the work 
schedule that the petitioner provided in response to the RFE and observed that since only one desk clerk is on 
duty during any of the three shifts of the motel's hours of operation, the front desk manager appears to be 
managing no one at the time of hislher shift. The director made the same observation in reference to the 
housekeeping manager and staff. 
On appeal, counsel attempts to address the anomalies found in the two organizational charts that pertain to the 
beneficiary's foreign employer, asserting that the later chart was merely meant to expand the scope of the 
employees' positions. As an example, counsel contends that it is possible for a warehouse clerk with twelve 
years of experience to have "simply had his job description enlarged." Counsel's statement, however, is not 
persuasive in overcoming the adverse finding, as it fails to acknowledge the root of the problem, which is that 
the "enlarged" scope of employment was not indicated when the petition was initially filed and now leads the 
AAO to believe that the position description has been bolstered in order to make the beneficiary's position fit 
Page 7 
the statutory criteria for managerial or executive capacity. Moreover, counsel provides no explanation as to 
why the two charts list different employees or why the more recently submitted chart contains positions that 
were not included in the original chart. It is noted that doubt cast on any aspect of the petitioner's proof may 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Id. at 591. 
Additionally, the AAO notes that when examining the executive or managerial capacity of the beneficiary, the 
descriptions of the beneficiary's positions, both abroad and with the u.s. entities, is a key element. See 
8 C.F.R. § 204.5(j)(5). Published case law recognizes that a detailed job description is a valuable tool in 
assessing the beneficiary'S employment capacity, finding that 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). 
The petitioner failed to provide a specific job description for the beneficiary'S employment abroad and instead 
provided one vague job description to address both the beneficiary'S foreign and u.s. positions. However, 
the single job description fails to convey a meaningful understanding of the specific tasks the beneficiary 
performed in the scope of his role within a building hardware and hardware supplies operation; nor is there 
sufficient information to establish which tasks the beneficiary would perform in the scope of his new role 
within the petitioner's hospitality business in the United States. 
As pointed out in the director's decision, duties such as contract negotiations and budget preparation, without 
further explanation, cannot be deemed as qualifying tasks. Similarly, job duties that deal with marketing and 
advertising the petitioner's hospitality services and dealing with the general public also cannot be deemed as 
qualifying managerial or executive tasks. These are operational tasks that are required for an entity to 
continue to function on a daily basis. While the AAO acknowledges that no beneficiary is required to allocate 
100% of his time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying 
tasks the beneficiary performed abroad and would perform in the United States were and would be only 
inc.idental to each of his respective positions. 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 10 1 (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). 
Although the director expressly instructed the petitioner to itemize the beneficiary's job duties in an attempt 
to elicit an accurate account of the specific tasks that comprised the beneficiary'S foreign position and those 
that would comprise the proposed position, the information contained in the response grouped together both 
qualifying and non-qualifying functions without describing tasks with adequate clarity and without properly 
indicating how much of the beneficiary'S time has been and would be spent on qualifying tasks versus the 
non-qualifying ones. 
In summary, the AAO finds that the petitioner failed to use an effective means to describe the beneficiary's 
foreign and proposed positions and it failed to explain how each entity's given organizational hierarchy was 
and would be used to relieve the beneficiary from having to primarily engage in the performance of non­
qualifying operational tasks. In light of these findings, the AAO concludes that the petitioner failed to 
establish that the beneficiary was employed abroad or that he would be employed in the United States in a 
· . 
Page 8 
qualifying managerial or executive capacity. Based on these two grounds of ineligibility, the instant petition 
cannot be approved. 
Accordingly, 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.