dismissed EB-1C Case: Business Management

(b)(6)
DATE : 
INRE: 
PETITION: 
MAY o·7 Z013 
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 FILE: 
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 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. § 1 03.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 1 03.5(a)(l)(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 
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Page 2 
DISCUSSION: The preference v1sa petltwn 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 California corporation that seeks to employ the beneficiary in the United States as its chief 
executive officer. 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. 
§ 1153(b )(I )(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated April 13, 2012, which contained 
relevant information pertaining to the petitioner's eligibility. The petitioner discussed the beneficiary's 
foreign and proposed employment, the beneficiary's proffered wage, and the petitioner's qualifying 
relationship with the beneficiary's foreign employer. The petitioner also provided invoices and tax 
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 June 20, 2012 informing the petitioner of 
various evidentiary deficiencies. The RFE included a request for more detailed job descriptions pertaining to 
the beneficiary's foreign and proposed employment listing the beneficiary's job duties with each entity, time 
allocations for each of the listed tasks, both entities' organizational charts depicting each company's staffing 
structure and the beneficiary's placement therein, and job descriptions of the beneficiary's supervisors and 
subordinates in each entity. 
The petitioner complied with the director's requests, submitting a statement dated August 30, 2012 from the 
foreign entity describing the beneficiary's employment abroad and a statement dated September I 0, 2012 
from the petitioning entity describing the beneficiary's proposed employment. The petitioner also provided 
organizational charts depicting the beneficiary's prior position with the foreign entity and his 
current/proposed position with the U.S. entity, job descriptions and educational levels of the beneficiary's 
subordinates in each of his respective positions, and the petitioner's quarterly tax return and quarterly wage 
report for the 2012 second quarter during which the petition was filed. 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary was employed abroad or 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 21, 2012 denying 
the petition. With regard to the foreign employment, the director found that the evidence provided did not 
establish that the beneficiary's subordinates were supervisory, professional, or managerial employees, as 
neither subordinate appears to have obtained a baccalaureate degree. With regard to the beneficiary's 
proposed employment, the director pointed out that the petitioner did not meet its burden of establishing that 
it has sufficient support personnel to relieve the beneficiary from having to allocate his time primarily to non­
qualifying tasks. 
On appeal, the petitioner's prior counsel checked off option Bat Part II of the Form l-2908, indicating that an 
appeal brief and/or additional evidence would be submitted within 30 days of the appeal. Counsel also 
provided a separate statement disputing the director's findings. To date, more than six months since the date 
the appeal was filed, the petitioner has provided no further evidence or information in support of the appeal. 
Therefore, the AAO will consider the record to be complete as presently constituted and a decision will be 
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issued based on the evidence before the AAO at this time. The AAO finds that the petitioner has failed to 
overcome the director's findings. All relevant submissions will be addressed in the discussion below. 
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. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization 111 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 l0l(a)(44)(B) of the Act, 8 U.S.C. § ll0l(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. 
When examining the executive or managerial capacity of the beneficiary, the AAO reviews the totality of the 
record, starting with the petitioner's description of the beneficiary's job duties. See 8 C.F.R. § 204.5(j)(5). A 
detailed job description is crucial, as the duties themselves will reveal the true nature of the beneficiary's 
foreign and proposed 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 AAO will also consider other relevant factors, including (but not 
limited to) job descriptions of the beneficiary's subordinate employees, the nature of the business conducted 
by the entities in question, the size of the subordinate staff of the foreign and U.S. entities, and any other facts 
contributing to a comprehensive understanding of the beneficiary's actual roles in the two respective entities. 
Applying the above criteria to the beneficiary's employment with the foreign entity, the AAO finds that the 
job description provided in the August 30, 2012 statement from the foreign entity's owner. was 
not sufficient to establish what specific tasks the beneficiary performed daily or that the beneficiary's time 
was primarily spent performing tasks of a qualifying nature. In assessing the beneficiary's Monday activities, 
it appears that the beneficiary allocated most of his day to conferring with the sales and purchase assistants in 
order to establish what they have been doing and to provide them with a list of things they would have to do. 
Thursday's and Friday's lists of activities indicate further employee supervisory duties as the beneficiary 
reviewed sales reports-a work product that the AAO assumes came from the beneficiary's sales assistants­
and rewarding the staff. 
To the extent that a significant portion of the beneficiary's job involved overseeing the work of two sales and 
purchase assistants, it is important for the petitioner to provide sufficient information to establish that these 
subordinates were supervisory, professional, or managerial employees. Although the statement from Mr. 
indicates that one of the subordinates attended a university for three years, no evidence is provided that 
such attendance actually resulted in a baccalaureate degree. With regard to the beneficiary's other 
subordinate, who graduated from a "secondary school," there is no evidence that such an achievement is 
(b)(6)
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equivalent to receiving a baccalaureate degree, nor is there any indication that such a degree was actually 
required for the position of sales and purchase assistant. 1 Although a review of the foreign entity's 
organizational chart indicates that there was a team of lower-level employees who performed dying, printing, 
and stitching tasks, the chart is not clear as to who supervised the work of these individuals, as the 
administrative manager and both sales and purchase assistants are shown as potential supervisors. The AAO 
further notes that in reviewing the job descriptions of the sales and purchase assistants, neither individual was 
assigned any tasks associated with the supervision of other employees. The AAO therefore cannot conclude 
that the two individuals whom the beneficiary supervised were supervisory, professional, or managerial 
employees. 
Additionally, turning back to the beneficiary's job description with the foreign entity, the breakdown indicates 
that the beneficiary spent 40% of his time on Wednesday meeting clients, 25% of his time on Thursday 
helping to carry out human resources tasks, and 50% of his time on Tuesday and 30% of his time on Friday 
reporting to superiors within the company. These tasks are not those of a multinational manager or executive, 
but rather are indicative of tasks necessary to provide services. 
While the AAO acknowledges that no beneficiary is required to allocate I 00% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
performed or would perform were/are only incidental to the position in question. 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 l&N Dec. 593, 604 (Comm. 1988). 
The record shows that the beneficiary allocated significant portions of his time to overseeing non-supervisory 
and non-professional employees and performing non-qualifying job duties. Therefore, the AAO cannot 
conclude that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Turning to the beneficiary's proposed employment with the petitioning entity, the AAO finds that the job 
description offered in response to the RFE contains insufficient information with regard to certain aspects of 
the job. For instance, the petitioner indicated that 10% of the beneficiary's time would be allocated to 
evaluating projections for future profitability and another 10% would be allocated to analyzing trends in 
gemological prices. It is unclear, however, how either task can be deemed as being within a managerial or 
executive capacity. The petitioner has failed to clarify, for example, the extent of the beneficiary's 
involvement in obtaining information upon which his projections of future profitability would be based. With 
1 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 l&N Dec. 817 (Comm. 1988); Matter of Ling, 13 l&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 l&N Dec. 686 (D.D. 1966). 
(b)(6)Page 6 
regard to product pricing, it appears that market research would be required in order to determine the pricing 
trends, thus indicating that the beneficiary would have to carry out certain operational tasks in order to meet 
the overall responsibility of determining the trends for gemological pricing. 
Furthermore, although the petitioner allocated a considerable portion of the beneficiary's time-35%-to 
"sourcing funding for expansion," no explanation was provided as to what the underlying tasks are for this 
broad job responsibility. The lack of specific information precludes the AAO from being able to determine 
that "sourcing funding for expansion" involves the performance of qualifying tasks in a managerial or 
executive capacity. 
An examination of the petitioner's staffing shows that the personnel structure that the petitioner depicts in its 
organizational chart is not supported by the evidence on record. When comparing the information provided in 
the chart with the petitioner's quarterly wage report for the 2012 second quarter, the latter document shows 
that the petitioner employed no more than six employees in April 2012 when the petition was filed. This 
number is not consistent with the petitioner's organizational chart, which lists a total of twelve positions. The 
organizational chart and quarterly wage report are consistent with regard to the individuals who filled the 
following positions: CEO, general manager, shipping/receiving, designer, and the mid-west marketing 
manager. Although the chart also lists employees in the positions of store manager, sales representative, 
marketing representative, and three seasonal store clerks, none of the employees listed as filling these 
positions were named in the petitioner's quarterly wage report. 
The individual whom the organizational chart identified as the shipping/receiving employee was shown as 
having received a salary that was not commensurate with that of a full-time employee; and 
whom the quarterly wage report identified as someone who earned $2,225.10 during the 
same quarter, was not found in the petitioner's organizational chart. The AAO further notes that the 
petitioner indicated that it had a total of seven employees at the time of filing-a number that cannot be 
verified by any of the supporting documents the petitioner submitted thus far. lt 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. 5 82, 591-92 (BIA 1988). 
In looking at the months following the filing of the Form I-140, the petitioner's quarterly wage report shows 
that the petitioner's number of employees went down to four in May 2012 and back up to five in June 2012. 
Thus both months following the filing of the Form 1-140 showed that there was a reduction in personnel and 
there is no evidence to show that the petitioner had seven employees at the time of filing as claimed in the 
Form I-140. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that 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. U.S. Citizenship and Immigration 
Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 
175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 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). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
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manner . See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The petitioner's staffing is 
an indicator of the extent to which the petitioner would be able to relieve the beneficiary from having to focus 
the primary portion of his time on the performance of non-qualifying operational tasks. While staffing alone 
will not serve as a basis upon which to deny a petition, this factor can and should be considered . 
When taking into account the petitioner's waning staffing size alongside the beneficiary's insufficient job 
description, the AAO cannot conclude that the petitioner has provided sufficient evidence to establish that the 
petitioner was ready and able to employ the beneficiary in a qualifying managerial or executive capacity at 
the time the petition was filed. 
Although on appeal counsel expressed his disagreement with the director's findings, the above discussion 
explains why the petitioner's submissions fail to meet the statutory and regulatory criteria for establishing that 
the beneficiary was employed abroad and that he would be employed in the United States in a qualifying 
managerial or executive capacity. Based on the conclusion that the petitioner did not provide sufficient 
evidence of the beneficiary's qualifying employment with the foreign and U.S. entities, the AAO cannot 
approve the instant petition . 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.