dismissed EB-1C Case: Business Management

PUBUC('OPy 
DATE: JUN 1 3 2012 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Securit)' 
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 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(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 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Do not file any motion directly with the AAO. 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, 
Perry Rhew 
kJ Chiet; Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Delaware limited liability company that seeks to employ the beneficiary as its chief 
executive officer (CEO). Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)( I )(C) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(1 )(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement, which included relevant information 
addressing the petitioner's eligibility and the beneficiary's foreign and U.S. employment. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant 
approval. The director therefore issued a request for additional evidence (RFE) dated December 23, 2009 
instructing the petitioner to provide numerous documents in an effort to elicit relevant information 
pertaining to the beneficiary's employment abroad. 
The petitioner responded, providing a statement dated March 17, 2010 accompanied by supplemental 
documents addressing the director's various concerns. 
After reviewing the record, the director concluded that the petitioner failed to establish eligibility and 
therefore denied the petition in a decision dated May 5, 2010. The director issued two adverse findings 
with regard to the beneficiary's employment abroad. First, the director determined that the petitioner 
failed to establish that the beneficiary was employed abroad for the statutorily mandated duration of one 
year during the three years directly prior to the filing of the instant petition. Second, regardless of the 
time period of the beneficiary's foreign employment, the director determined that the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
On appeal, counsel submits a brief disputing the denial. Counsel asserts that the director improperly 
relied on the date of the 1-140 filing as the proper basis for determining the relevant three-year period 
during which the qualifying foreign employment must be established. Counsel also restates the list of the 
beneficiary's job responsibilities in his position with the foreign entity, Incapsulate, Inc., contending that 
the beneficiary was employed in a qualifying managerial or executive capacity. 
The AAO finds that counsel's statements on appeal are not persuasive and fail to overcome the director's 
denial. It is noted that all of the petitioner's submissions have been reviewed. All relevant 
documentation that pertains directly to the key issue in this mailer will be fully addressed in the 
discussion below. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 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)(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 ajob 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. 
As noted above, the two primary issues to be addressed in this proceeding pertain to the beneficiary's 
employment with the foreign entity. Specifically, the AAO will examine the record to determine whether 
the petitioner submitted sufficient evidence to establish that the beneficiary was employed abroad for the 
required amount of time within the requisite time period, and if so, whether such employment was in a 
qualil'ying 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 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 
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(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 IOI(a)(44)(8) ofthe Act, 8 U.S.C. § IIOI(a)(44)(8), 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. 
First, the AAO will address the beneficiary'S period of employment abroad. The AAO notes the 
regulation at 8 C.F.R. § 204.5(j)(3)(i), which states, in part, the following: 
A) !fthe alien is outside the United States, in the three years preceding the filing of the 
petition the alien has been employed outside the United States for at least one year in 
a managerial or executive capacity by a firm or corporation, or other legal entity, or 
by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
8) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity[.] 
The clear language of the statute indicates that the relevant three-year period is that "preceding the time of 
the alien's application for classification and admission into the United States under this subparagraph." 
§ 203(b){l)(C) of the Act, 8 U.S.C. § lI53(b)(I)(C). The statute, however, is silent with regard to aliens 
who, like the beneficiary, have already been admitted to the United States in a nonimmigrant 
classification. 
In promulgating the regulations on section 203(b)(I )(C) of the Act, the legacy Immigration and 
Naturalization Service (INS) concluded that it was not the intent of Congress to exclude L-IA 
multinational managers or executives who had already been transferred to the United States from this 
--Page 5 
employment-based immigrant classification. Specifically, INS stated the following with regard to the 
interpretation of the Congressional intent behind the relevant statutory provisions: 
The Service does not feel that Congress intended that nonimmigrant managers or executives 
who have already been transferred to the United States should be excluded from this 
classification. Therefore, the regulation provides that an alien who has been a manager or 
executive for one year overseas, during the three years preceding admission as a 
nonimmigrant manager or executive for a qualifying entity, would qualify. 
56 Fed. Reg. 30703, 30705 (July 5,1991). 
In other words, for those aliens who are currently in the United States in L-IA status, the relevant time 
period mentioned in the statute should be the three-year period preceding the time of the alien's 
application and admission as (or change of status to) an L-IA multinational managerial or executive 
classification. 
In light of the above, the AAO finds that neither counsel, who asserts that the three-year time period that 
ended on March 3, 2006 must be considered, nor the director, who determined that the three year period 
prior to the date the petition was filed must considered, was correct. 
The AAO tinds counsel's statutory interpretation to be incorrect because it is based on the unsupported 
presumption that the beneficiary was "working for the same employer or a subsidiary or affiliate of the 
firm or corporation, or other legal entity by which the alien was employed overseas." 8 C.F.R. § 
204.5(j)(3)(i)(B) .. The record simply does not support counsel's assertion. The TN nonimmigrant visa 
allows a citizen of Canada to enter the United States temporarily to engage in business at a professional 
level in accordance with the North American Free Trade Agreement. 8 C.F.R. § 214.6(a). The TN visa 
classification encompasses a large number of professions, such as accountants, architects, and engineers. 
8 C.F.R. § 214.6(c). 
The record indicates that the beneficiary was present in the United States in TN status on a fairly 
continuous basis from January 26, 2000, until July 3, 2009. The one break in this period occurred from 
December 29, 2004 until December 3 I, 2005, when the beneficiary indicates that he made only short 
visits to the United States in B-1 and H-4 nonimmigrant status. 
To determine whether the beneficiary was working in the United States for the same employer or a 
subsidiary or affiliate of the firm that employed him overseas, the director requested copies of the 
paperwork submitted by the beneficiary in support of the TN classification, specifically including the 
employment letters from the U.S. companies. 
In response, the petitioner only submitted three letters. The letters 
• stated that the beneficiary was employed as a TN "Computer Systems Analyst" by these companies 
from 2003 to 2004 and 2007 to 2008. The letter,; specifically indicate that the two companies directly 
employed the beneficiary as a TN; there is no indication that they contracted with the Canadian entity for 
the beneficiary'S services. Only the third letter from _ states that it has contracted with the 
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Canadian company for the services of the beneficiary as a Computer Systems Analyst, for the period 
November 2007 until November 2008.' 
The AAO recognizes that TN non immigrants are prohibited from self-employment. See 8 C.F.R. 
§ 214.6(b) (defining "engage in business activities at a professional level"). It is noted that the petitioner 
failed to submit employment letters for the beneficiary's remaining five-year period of stay in the United 
States in TN status. The petitioner also declined to submit the beneficiary's Canadian tax returns, 
contrary to the director's request.' See Petitioner's RFE Response, Exhibit F at page 3. All of these 
documents might have reasonably demonstrated the nature of the beneficiary'S employment and whether 
he was working for a related company in the United States. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § I 03.2(b)( 14). 
Based on letters covering 2004 and 2007, and the absence of 
evidence for the remaining period of time, the petitioner has not established that the beneficiary was 
working for the petitioner or a related company while in TN status. Accordingly, the beneficiary's 
employment as a TN must be deemed interruptive and non-qualifying. 
Notwithstanding this conclusion, the AAO finds that the director was incorrect in his reliance on the date 
of filing of the instant Form 1-140 to determine the relevant three-year time period. The director failed to 
properly consider the fact that the beneficiary was already present in the United States as an L-I 
nonimmigrant working for the petitioning entity at the time the instant petition was filed. Therefore, 
contrary to the assertions of both counsel and the director, the beneficiary fits the criterion described in 8 
C.F.R. § 204.5(j)(3)(i)(B) and thus must have his period of employment abroad analyzed based on the 
date he obtained a change of status to that of an L-I nonimmigrant, or November 13, 2008. 
In light of the above, the relevant three-year time period during which the beneficiary's one year of 
foreign employment must have occurred is from November 13,2005 until November 13,2008. Based on 
counsel's statements and the documentation offered by the petitioner, the beneficiary worked in the 
United States in TN status from at least December 31, 2005 through July 3, 2009. Thus, while the 
beneficiary may have been employed for at least one year, he could not have worked abroad for longer 
than forty-eight consecutive days within the relevant three-year time period. The beneficiary must 
, While the _letter is the only letter to reference the Canadian company, it is noted that_ 
.shares an address and office suite with the p~:itioning company in Vienna, VA. The relationship between 
these two companies is not clear. 
, The petitioner did submit partial copies of select tax returns to show that the Canadian entity, _ 
_ has been doing business abroad. Petitioner's RFE Response, Exhibit K. Among these documents, the 
petitioner submitted the beneficiary's 2003 Canadian Tax Form 1'-2124 ("Statement of Business Activities"). 
However, rather than demonstrating that was doing business, the beneficiary indicated on the 
Form 1'-2124 that he provided software engineering services for a different company named ••••• 
located in Ontario, Canada. Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. MatterofHo, 191&N Dec. 582, 591 ISlA 1988). 
physically work abroad to satisfy the one-year requirement. Matter of Kloeti, 18 I&N Dec. 295 (Reg'l 
Comm'r 1981). 
Additionally, the AAO finds that even if the petitioner were to establish that the beneficiary had the 
requisite time period of foreign employment, the record does not establish that such employment was in a 
qualifying managerial or executive capacity. 
As a preliminary matter, the AAO finds that in order to fully assess the beneficiary's executive or 
managerial capacity in a given position, the description of the job duties pertaining to the position in 
question must first be examined. See 8 C.F.R. § 204.5(j)(5). Published case law clearly supports the 
pivotal role of a clearly defined job description, as the actual duties themselves reveal the true nature of 
the employment. Fedin Bros. Co .. LId. v. Sava, 724 F. Supp. 1103,1108 (E.D.N.Y. 1989), afj'd, 905 F.2d 
41 (2d. Cir. 1990). 
In the present matter, the AAO finds that the petitioner offered deficient job descriptions that failed to 
effectively convey a meaningful understanding of the specific tasks the beneficiary performed abroad. 
Rather, the petitioner provided general information pertaining primarily to the beneficiary's discretionary 
authority without providing a comprehensive account of the beneficiary's actual daily tasks. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. [d. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient. 
Here, the petitioner has failed to clarify what specific tasks the beneficiary performed in the course of 
managing the day-to-day business, establishing organizational goals and objectives, providing leadership 
on new initiatives, fostering a success-oriented environment, keeping abreast of technological 
developments, or engineering the alignment of people, processes, policies and assets. These vague 
statements simply fail to reveal what the beneficiary might have done on a daily basis in the execution of 
his job duties. Although the beneficiary's discretionary authority is one key aspect to establishing his 
managerial or executive capacity, the information provided is not sufficient to affirmatively conclude that 
the beneficiary's employment abroad was primarily comprised of qualifying managerial- or executive­
level tasks. 
A critical analysis of the nature ofthe petitioner's business undermines the petitioner's assertions. Rather, 
it appears from the record that the Canadian entity primarily served a payroll and tax function for the 
beneficiary while he served as a TN computer analyst in the United States. The AAO must note that the 
employment letters from state that the 
beneficiary was employed as a "Computer :Systems Analyst." Based on this evidence, the AAO 
concludes that it is more likely that the beneficiary spent the majority of his time working as a computer 
analyst. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 
19 I&N Dec. 582, 591 (BfA 1988). 
Based on the record of proceeding, the beneficiary's job duties are principally composed of non­
qualifying duties that preclude him from functioning in a primarily managerial or executive role. An 
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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. Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988). 
If USCIS fails to believe that a fact stated in the petition is true, USCIS may reject that fact. Section 
204(b) of the Act, 8 U.s.c. § I I 54(b ); see also Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir.1989); Lu­
Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 
2d 7, IS (D.D.C. 200 I). 
Accordingly, in light of the deficiencies that have been discussed in this decision, the AAO finds that the 
petition does not warrant approval and the direc(c):"s decision will be affirmed. 
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.