dismissed EB-1C Case: Business Management

(b)(6)
DATE: 
JAN 1 4 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE 
CENTER 
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 
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. § 1153(b)(l)(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 oe 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: § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be flled 
within 30 days of the decision that the motion seeks to reconsider oneopen. 
Thank you, 
• 
·on Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)Page2 
DISCUSSION: The preference visa petition was denied by the Director, Tt;xas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal ~ill be dismissed. 
The petitioner claims to be an Alabama corporation that seeks to employ the beneficiary in the United States 
as vice president of its organization. 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. § 1153(b)(1)(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated November 1, 2010, which contained a 
brief discussion of the beneficiary's employment abroad. Although the petitioner discussed the beneficiary's 
proffered wage in the United States as well as the U.S. company's net and gross income, no information was 
provided regarding the beneficiary's proposed employment. The petitioner also provided supporting 
documentary evidence in the form of quarterly \Yage and tax documents for the quarters leading up to the time 
the Form I-140 was filed. 
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 July 6, 2010 informing the petitioner of 
various evidentiary deficiencies. The beneficiary's proposed employment with the U.S. entity was among the 
issues addressed in the RFE. Specifically, the director instructed the petitioner to provide a detailed job 
description of the beneficiary's proposed employment, complete with a list of the beneficiary's proposed job 
duties and ·the percentage of time the beneficiary would allocate to each task as well as the number of 
subordinates the beneficiary would oversee and their respective job titles, job duties, and educational levels. 
The director also asked the petitioner to describe the organization's management and personnel structures. 
Although the petitioner responded to the RFE, the response contained a list of the same generalized 
statements that the petitioner had previously submitted in support of a previously filed Form 1-140 (with 
receipt number ), which was also denied. Additionally, in the July 31, 2011 statement from 
owner of the foreign entity, stated that the beneficiary's proffered wage would 
be $48,000 annually, an amount that is inconsistent from the $42,000 that was initially indicated in the 
petitioner's Form 1-140. 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary would be employed with the U.S. entity in a qualifying managerial or executive capacity. The 
director repeated the job description that was offered in response to the RFE and acknowledged the 
petitioner's submission of an organizational chart. However, the director observed that the petitioner failed to 
provide job descriptions pertaining to the beneficiary's subordinates and further found that the description of 
the proposed employment was overly broad and that it failed to convey a meaningful understanding of the 
specific job duties the beneficiary would perform. In light of these adverse findings, the director issued a 
decision dated August 30, 2011 denying the petition. 
On appeal, counsel disputes the decisi~n, contending that the petitioner's supporting evidence was "either 
overlooked or misunderstood" and further states that job descriptions of the beneficiary's subordinates are 
irrelevant in this matter. Counsel asserts that the beneficiary allocates 100% of his time to the performance of 
tasks in an executive capacity. The petitioner also provides certain corporate, tax, and wage documents, all of 
which had been previously submitted. 
(b)(6)
Page3 
The AAO has reviewed the record in its entirety and finds that counsel's statements are unpersuasive and fail 
to overcome the director's adverse decision. The discussiop below will address the relevant submissions. 
~ection 203(b) ofthe 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 lan~ge 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 101(a)(44)(A) ofthe 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 
(b)(6)Page4 
(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 10l{a)(44)(B) ofthe Act, 8 U.S.C. § 110l{a)(44){B), provides: 
/ 
The term "executive capacity" means an assignment within an organization 10 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 will look frrst to the 
petitioner's description of the job duties. See 8 C.F .R. § 204.5(j)( 5). The AAO. also finds that is appropriate to 
consider this information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, 
and the petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily 
operational tasks. 
Looking frrst to the job description, the AAO concurs with the director in fmding that the petitioner's RFE 
response was inadequate and lacked a thorough description of the speeific job duties the beneficiary would 
perform on a daily basis. A detailed job description is essential for the purpose of determining eligibility, as 
the actual duties themselves reveal the true nature of the employment. Fed in Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). 
According to the petitioner's 2010 corporate tax return, the petitioner operates a convenience store. Thus, the 
AAO must consider the beneficiary's job description within the context of a convenience store retail business. 
Having done so, the AAO fmds that it is unable to determine precisely what actual job duties the beneficiary 
would perform on a daily basis and whether the predo~inant portion of his time would be allocated to the 
performance of qualifying tasks in a managerial or executive capacity. For instance, the petitioner indicated 
that the beneficiary would direct and coordinate the company's budget and finances. It is unclear what actual 
tasks fall under this general heading, particularly given that ·no job descriptions were provided for any of the 
petitioner's employees other than the beneficiary himself. Without this relevant information, the AAO cannot 
determine who actually performs the daily operational tasks that deal with the petitioner's budget and 
finances. 
The petitioner also indicated that the beneficiary would confer with "company officials" and staff members to 
resolve 
problems. However, no clarifYing information was provided to explain which employees are deemed 
(b)(6)
PageS 
"company officials," what types of problems the beneficiary would be involved in resolving, or what would 
be the beneficiary's specific role in rtl5olving those problems. Similarly, the petitioner has not clarified the 
specific tasks that signify analyzing the petitioner's operations. The petitioner did not provide any specific 
parameters that would serve as the basis for the beneficiary's analysis. Additionally, while the petitioner 
indicated that the beneficiary would appoint department heads and managers, the organizational chart 
submitted in response to the RFE indicates that the retail operation had two assistant managers. It is therefore 
unclear how selecting managers or department heads within the scope of a convenience store operation could 
be one of the beneficiary's daily tasks. 
After reviewing the sixteen IRS Form W -2s that the petitioner 
provided to show the salaries and wages paid 
to employees in 2010, the information shows that only two employees-the beneficiary and the president of 
the U.S. entity-received wages that were commensurate with full-time employment. The record contains no 
evidence of the quarterly earnings of individual employees whom the petitioner employed during the time 
period the Form 1-140 was filed. While the AAO acknowledges that this information was not specifically 
requested, the record contains no evidence that would allow the AAO to gauge exactly whom the petitioner 
employed at the time of filing, which position the individual(s) occupied, or the extent to which the 
petitioner's staff at the time of filing the petition was capable of relieving the beneficiary from having to 
allocate the majority of his time to the performance of non-qualifying tasks. 
The AAO finds that the petitioner. provided a deficient job description· and failed to establish that its 
organization was adequately staffed at the time of filing the petition such that the beneficiary could focus his 
efforts primarily on the performance of tasks within a qualifying managerial or executive capacity. Although 
counsel asserts on appeal that the director overlooked or misinterpreted the petitioner's prior submissions, he 
provides no clarification or explanation as to what led him to this conclusion. Dismissing relevant 
information (pertaining tp the job duties of the beneficiary's subordinates) as irrelevant is unpersuasive, 
particularly when the job duties of the subordinates would help explain how the beneficiary is relieved from 
having to perform daily operational tasks. While the AAO also acknowledges that no beneficiary is required 
to allocate 100% 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 ofChurch Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In light of the deficiencies discussed above, the AAO finds that the petitioner failed to provide the necessary 
information to establish that the beneficiary's proposed position with the U.S. entity would involve primarily 
qualifying managerial- or executive-level tasks. On the basis of this conclusion, the director's decision 
denying the petition will be affirmed. · 
While not previously addressed in the director's decision, the AAO's review of the beneficiary's Forms G-
325 (which were submitted with the petitioner's current·and previously filed Forms 1.:.140) cause the AAO to 
question whether the beneficiary was employed abroad for one year during the relevant three-year period. 
The regulation at 8 C.F.R. § 204.5(j)(3)(i) states, in part, the following: 
A) If the 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 
(b)(6)
Page6 
a managerial or executive capacity by a firm or corporation, or other legal entity, or 
by an affiliate or subsidiary of such a fum or corporation or other legal entity; or 
B) If the alien is already in the United States working for the same employer cir 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)(1)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C). The statute, however, is silent with regard to aliens who 
have already been admitted to the United States in a nonimmigrant classification. In promulgating the 
regulations on section 203(b )(1 )(C) of the Act, the legacy Immigration and Naturalization Service (INS) 
concluded that it was not the intent of Congress to exclude L-1 A multinational managers or executives who 
had already been transferred to the United States from this 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 m L-lA 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-lA multinational managerial or executive classification. 
The Form G-325, which the beneficiary submitted at the time offtling the Form I-140 and which contains the 
beneficiary's employment history, indicates that the beneficiary was .employed abroad by the petitioner's 
parent entity from August 2004 to May 2007 and that he subsequently commenced his employment with the 
petitioning entity in October 2009. Although the beneficiary's residence history, which is contained within 
the same document, shows that the beneficiary has resided in the United States since May 2007, immediately 
after his employment with the foreign entity was terminated, the beneficiary clearly did not enter the United 
States for the purpose of being employed by the petitioning entity, as demonstrated by the fact that the 
petitioner was not incorporated until February 5, 2009. 
Accordingly, the beneficiary does not fit the criteria described in 8 C.F.R. § 204.5G)(3)(i)(B) (which applies 
only to those beneficiaries who come to the United States to be employed by the same entity, or its subsidiary, 
or affiliate) and must have his period of employment abroad analyzed under the criterion described at 
8 C.F.R. § 204.5G)(3)(i)(A), which states that the relevant three-year time period is that which falls within the 
three years prior to the ftling of the instant petition~ As the instant petition was ftled in 2010 and it is well 
established that the beneficiary was present in the United States between frorri May 2007 through November 
(b)(6)Page7 
2010 when the instant petition was flied, it cannot be concluded that the beneficiary was employed abroad 
during the relevant three-year time period, regardless of whether or not the petitioner is able to provide 
evidence showing that the employment abroad was in a managerial or executive capacity. 
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), aff'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ; 381 F.3d 143,. 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Based on the additional ground of ineligibility discussed above, this· petition 
cannot be approved. 
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.