dismissed EB-1C Case: Business Management

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Prevent ~1lt;i.i) 1Q"an;lnred 
invasion of'personai pfivacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
'3 
OFFICE: NEBRASKA SERVICE CENTER Date: WAR 1 6 230 
WAC 07 262 51314 
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. 3 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. 9 103.5 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). 
\I Chief, Administrative Appeals Office 
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 foreign entity licensed to do business in the State of Illinois. The petitioner seeks to employ 
the beneficiary as its presidenumanaging director. 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 concluded 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, 
disputing the director's conclusion. 
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 established that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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. 8 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 from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a supplement titled "Nontechnical Description of Job," 
which included a list of the beneficiary's proposed duties and responsibilities. The list included numerous 
discretionary decision-making elements, such as implementing goals and objectives, overseeing budget 
planning and implementation and making budget-related recommendations to the board of directors, hiring 
and firing employees and directing them in fulfilling their respective roles within the U.S. entity, and ensuring 
that the following are in place: an annual evaluation system, a three-year plan for labor, expenses, and 
capital, cost effective personnel policies, and personnel recruiting, training, and retention programs. The 
beneficiary would also be responsible for overseeing marketing and promotion of products and services; 
overseeing any expansion, remodeling, and repair work; negotiating for factory/warehouse space; negotiating 
contracts for purchasing and leasing equipment; assisting managers with problem-solving; overseeing the 
development of staff compensation packages; supervising a project manager; and working with the finance 
manager to ensure cost control measures are in place. 
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The petitioner also provided its organizational chart, which depicts the U.S. entity as a two-tier organization 
headed by the beneficiary in his capacity as presidentlchief executive and financial officer. The chart depicts 
the beneficiary as having two subordinates, one in the positions of operations coordinator and financial 
manager and the other in the position of sales and purchasing manager. 
On November 6, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, in part, a more detailed description of the beneficiary's proposed employment, including a list of 
tasks the beneficiary would perform in fulfiIIing his daily responsibiIities and the amount of time attributed to 
each of the listed tasks. The petitioner was also asked to provide all IRS Form W-2s issued to its employees 
(including the beneficiary) in 2007. 
In response, the beneficiary, on behalf of the petitioner, provided a letter dated December 6, 2008, in which 
he provided a general description of his proposed employment and stated that 70% of his time is spent 
performing duties for the U.S. entity and 30% of his time is spent performing tasks for the foreign entity. As 
the director included the beneficiary's job description in the denial, the AAO need not repeat this information 
in the current decision. The petitioner also provided the requested W-2s for 2007 as well as a project progress 
log, which contains specific dates in 2008, descriptions of the various actions taken with regard to certain 
projects, and the initials of the employees who were responsible for taking the actions. 
In a decision dated January 22, 2009, the director denied the petition concluding that the petitioner failed to 
adequately describe the beneficiary's daily job duties and therefore did not establish that the beneficiary 
would primarily perform tasks within a qualifying managerial or executive capacity. 
On appeal, counsel disputes the director's conclusion, referring to the project progress log, which she claims 
includes a detailed breakdown of the daily activities performed by the beneficiary and his subordinates. It is 
noted, however, that the activity log's earliest activity was recorded as having taken place on August 4, 2008, 
which is more than one year after the Form 1-140 was filed. 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 of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). As the activity log 
described activities that took place after the petition was filed, it is unclear how this information is relevant in 
establishing the petitioner's eligibility at the time of filing. 
Additionally, even if the AAO were to overlook the dates of the activities described in the activity log, the 
content of the activity log is insufficient to determine what actual tasks the beneficiary performed on a daily 
basis. More specifically, the log shows that the beneficiary did not participate in all of the activities that were 
listed and thus the list was ineffective in establishing what the beneficiary did on a daily basis. While it is 
understandable that the beneficiary does not participate in all activities listed in the log, it is the petitioner's 
burden to establish exactly what specific tasks the beneficiary would perform on a daily basis, which includes 
' 
listing the tasks that the beneficiary would carry out when he is not engaged in activities that are listed in the 
log. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). It is therefore of utmost 
importance for the petitioner to identify with sufficient specificity what the beneficiary would be doing on a 
daily basis. The director's RFE was clear in stressing the need for a detailed description of job duties. The 
director went even further by specifying the desired format, which was to include the percentage of time 
assigned to each listed job duty. As discussed above, the petitioner's response did not contain the requested, 
and required, information. 
Counsel contends that the director reached an erroneous conclusion because he focused on the broad language 
found in the initial job description and overlooked specific details that described the beneficiary's proposed 
employment. However, counsel's reference to a detailed description of the proposed employment is unclear, 
particularly given that the director quoted, verbatim, the paragraph contained in the RFE response, where the 
petitioner provided supplemental information. While unclear, it appears that the director's reference to 
"specific details used to elaborate and describe the [bleneficiary's position" may apply to the activity progress 
log that was included in the petitioner's response to the RFE. However, as stated above, the progress log does 
not satisfy the director's request. 
Additionally, counsel asserts that the beneficiary will be acting in an executive or managerial capacity, failing 
to specify which capacity applies to the proposed position. A beneficiary may not be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner chooses to 
represent the beneficiary as both an executive and a manager, it must establish that the beneficiary meets each 
of the four criteria set forth in the statutory definition for executive and the statutory definition for managerial 
capacity. 
Furthermore, counsel's assertion that the beneficiary directs expansion, which counsel contends is a major 
component or function, lacks sufficient supporting evidence. In order to establish that the beneficiary directs 
a major component or function, the petitioner must at the very least provide a detailed description of the 
beneficiary's daily tasks, a key element that is missing from the petitioner's record of proceeding. 
Additionally, U.S. Citizenship and Immigration Services (USCIS) may examine the petitioner's organizational 
composition in order to determine that the beneficiary primarily directs the component or function and does 
not primarily perform the underlying tasks associated with that function. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be 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). Here, the petitioner had a total of three employees at the 
time the petition was filed. While the petitioner's staffing is not the sole determining factor in determining 
whether the petitioner is eligible for classification as a multinational manager or executive, this factor can and 
should be examined, in conjunction with the beneficiary's job description, in order to gain a meaningful 
understanding of how the petitioner plans to relieve the beneficiary from having to primarily perform daily 
operational tasks. When a petitioning entity lacks organizational complexity and fails to delineate the 
beneficiary's proposed daily tasks, the AAO may question the likelihood that the petitioner has the capability 
to relieve the beneficiary from having to primarily perform non-qualifying tasks. 
In the present matter, the petitioner has failed to provide a sufficient description of the beneficiary's proposed 
employment. Moreover, it is unclear how the broad statements provided initially in support of the appeal 
actually apply to the beneficiary in the scheme of the organizational hierarchy that existed at the time of 
filing. For instance, the petitioner stated that the beneficiary would work with the human resources manager 
to develop goals and strategies for staff relations. However, the organizational chart did not identify a human 
resources manager, nor is there any indication that a human resources manager was even required given the 
petitioner's organizational composition at the time of filing. The petitioner's claim that the beneficiary 
"[elnsures the development of personnel policies," is similarly dubious, as the beneficiary's support staff 
consists of two employees. While the petitioner claimed that the beneficiary would ensure that the staff is 
adequately trained, it is unclear what kind of training the beneficiary's two subordinates would receive and 
who, if not the beneficiary, would actually provide the training material and train his two subordinates. 
Page 6 
Next, the petitioner provided no explanation as to why the beneficiary is charged with supervising a project 
manager when there is no such position identified in the organizational chart. In other words, not only is the 
beneficiary's description overly broad, a finding that the director properly made, but after further evaluating 
the job description, the AAO finds that a number of the job responsibilities are inconsistent with the 
organizational hierarchy that the petitioner depicted in the chart. As stated above, the chart does not list a 
human resources manager or a project manager despite the fact that these positions are both mentioned in the 
beneficiary's job description, indicating that each would purportedly play a role in how the beneficiary would 
fulfill his daily responsibilities. 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 the present matter, the petitioner has neither acknowledged nor resolved the above described 
inconsistencies, thereby indicating that the job description offered in support of the petition is unreliable, as it 
is not based on the petitioner's organizational structure at the time the petition was filed. Despite counsel's 
dissatisfaction with the level of detail in the director's decision, the fact remains that the petitioner was 
adequately advised of the significance of a detailed description of the beneficiary's proposed job duties when 
an RFE was first issued. The petitioner was expressly asked to provide a list of specific tasks and to assign 
the percentage of time that would be attributed to each task. Neither the format nor the content of the 
petitioner's response was in compliance with these instructions. This deficiency alone is sufficient to warrant 
denial of the petition. See 8 C.F.R. 9 103.2(b)(14). Moreover, the record indicates that the director's decision 
provided ample information to adequately advise the petitioner of the deficiencies that served as the bases for 
denial and therefore did not impede the petitioner in constructing a meaningful appellate brief and/or 
supplementing the record with additional information and/or evidence to cure the deficiencies. As stated 
above, the petitioner was duly notified that the beneficiary's overly general job description was the primary 
basis for denial. The fact that the director included a lesser degree of detail than what counsel would have 
preferred does not constitute error on the part of the director. Similarly, the director's use of identical 
language in multiple Form 1-140 denials is not in itself erroneous if the language is relevant and applies to the 
given set of facts in a particular Form 1-140. It is clear that the language relied upon by the director is directly 
applicable to the facts presented by the petitioner. 
Lastly, counsel asserts that the director erroneously accused the petitioner of "attempting to circumvent the 
intent of the visa category" under which the current Form 1-140 was filed. Again, counsel's argument is 
without merit. While the director briefly commented on the petitioner's ownership scheme, questioning 
whether Congress intended to extend the multinational manager or executive immigrant visa category to 
beneficiaries with majority ownership in the entities that were petitioning for them, there is no indication that 
the director's observation was in any way a contributing factor in the adverse decision. Rather, the director 
was clear in stating that the denial was directly based on the finding that the petitioner failed to establish that 
the beneficiary's proposed employment would be within a qualifying managerial or executive capacity. As 
discussed above, the petitioner has not overcome the director's basis for denial. Therefore, the petition cannot 
be approved. 
Furthermore, while not previously addressed in the director's decision, the record indicates that the petitioner 
has not presented sufficient evidence to establish that it has satisfied the provisions of 8 C.F.R. 
5 204.5Cj)(3)(i)(D), which states that the petitioner must establish that it has been doing business for at least 
one year prior to filing the Form 1-140. 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." In the present matter, the petitioner has provided 
an unaudited financial statement for 2006; a copy of its tax return for the year during which the Form 1-140 
was filed; photocopied photographs of the petitioner's business premises; and letters from business contacts. 
However, these documents are not sufficient to establish that the petitioner has engaged in the sale and 
distribution of metal goods on a regular, systematic, and continuous basis. While the letters from the petitioner's 
business associates establish that the petitioner has made business contacts, these letters do not establish that any 
sales were ultimately made, as they are not supported by any sales invoices. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
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). Therefore, based on the additional ground 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. 3 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.