dismissed EB-1C Case: Business Management

identifYing data deleted to 
prevent clearly unwan'unted 
invasion of personal privacy 
PUBLIC COPY 
DATE: 
SEP 27 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: TEXAS SERVICE CENTER 
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 US.C. § 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF -REPRESENTED 
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 AAO inappropriately applied the law in reaching its 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 motion 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 any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
Page 2 
DISCUSSION: The preference visa petltlOn was denied by the Director, Texas Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The director determined that the 
petitioner's appeal was untimely filed and opted to treat the appeal as a motion to reopen and reconsider. The 
director dismissed the motion and the petitioner filed an appeal with the AAO. The director determined that 
the second appeal was also untimely filed and again chose to treat it as a motion to reopen and reconsider. 
The director dismissed the motion and reaffIrmed denial of the petition. The matter is now before the AAO 
on appeal. The appeal will be dismissed. 
The petitioner is a Florida limited liability company that seeks to employ the beneficiary as its general and 
operations manager. 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. 
§ I 153(b)(I)(C), as a multinational executive or manager. 
I. Procedural History 
The petitioner filed the Form 1-140 on January 16, 2009. On March II, 2009 the director issued a request for 
evidence (RFE) instructing the petitioner to provide additional documentation to address various eligibility 
factors. On April 29, 2009, the director issued a decision denying the petition. On June 12, 2009, the 
petitioner filed an untimely appeal, which the director reviewed and treated as a motion to reopen and 
reconsider.! In a decision dated August 4, 2009, the director dismissed the motion, questioning the reliability 
of the evidence submitted and affirming the original denial's finding that the petitioner failed to establish that 
the beneficiary would be employed in the United States in a qualifying managerial or executive capacity. The 
director also determined that the petitioner failed to establish that it had the ability to pay the beneficiary'S 
proffered wage at the time of filing. 
The record shows that on September 8, 2009 the petitioner filed an appeal from the director's August 4, 2009 
decision. The director determined that this appeal was also untimely filed and again treated the Form 1-290B 
as a motion to reopen and reconsider, which he dismissed on April II, 20 II. In response, the petitioner filed 
another Form 1-290B, dated May 16, 2011, seeking to appeal the director's latest decision. The matter is 
currently before the AAO on appeal. 
Upon further review of the record, the AAO finds that the director erroneously deemed the petitioner's 
September 8, 2009 appeal as untimely filed. 2 The director therefore had uo jurisdiction to treat the timely 
appeal as a motion to reopen and reconsider. See 8 C.F.R. § 103.3(a)(2)(iii). In light of the director's error, 
which resulted in the unnecessary issuance of the April II, 2011 decision, the AAO hereby withdraws the 
director's most recent decision in order to review the record and enter a decision on the timely appeal filed on 
September 8, 2009, which the service center should have forwarded to the AAO upon receipt. 
, The petitioner initially filed the appeal on June 1, 2009 directly with the AAO. The AAO promptly return 
the appeal, informing the petitioner that the appeal must be submitted to the U.S. Citizenship and Immigration 
Services (USCIS) or the field offIce where the Form 1-140 was originally filed. The petitioner subsequently 
filed the appeal with the correct offIce, where the appeal was received on June 12,2009. 
2 The record shows that USCIS received the Form 1-290B on Tuesday, September 8, 2009, the day after a 
federal holiday during which USCIS offices are closed. As the 33'd day after issuance of the director's August 
4, 2009 decision fell on a Sunday and the subse~uent business day during which USCIS offices reopened fell 
on the 35'h day, the petitioner's appeal on the 35' day must be deemed as timely filed. 
Page 3 
The objective of the AAO's decision at the present time is to grant the petitioner review of the record in light 
of the director's August 4, 2009 decision, which was based on the following adverse conclusions: (1) the 
petitioner failed to establish that the beneficiary's proposed employment would be in a qualifying managerial 
or executive capacity, and (2) the petitioner failed to establish its ability to pay the proffered wage. 
II. Applicable Law 
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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § I 101 (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 ofthe 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 
Page 4 
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. § I 10 I (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
ofthe 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. 
Additionally, the regulation at 8 C.F.R. § 204.5(g)(2) states the following, in pertinent part: 
Any petition filed by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States employer has 
the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time 
the priority date is established and continuing until the beneficiary obtains lawful permanent 
residence. Evidence of this ability shall be either in the form of copies of annual reports, federal 
tax returns, or audited financial statements. 
II1. Analysis 
The first issue the AAO will address in this proceeding is whether the petitioner provided sufficient evidence 
to establish that the beneficiary would be employed in the United States in a qualifying managerial or 
executive capacity. 
In the August 4, 2009 decision, the director determined that the beneficiary'S job duties within the scope of 
the petitioner's manufacturing and supply operation included identifying new markets, developing "local 
customer's volume," representing the company in legal and commercial interests, acting as a liaison with 
prospective clients, and providing efficient services to existing clients. The director determined that these 
tasks are non-qualifying and are more closely related to sales of a product rather than management of the 
organization. The director also determined that the petitioner failed to clarify whom it employs and who 
Page 5 
actually carries out the petitioner's banking, payroll, and inventory control functions, as the petitioner 
indicated that the beneficiary oversees these activities. 
On appeal, the petitioner referred to the Occupational Outlook Handbook (OOH), claiming that the OOH 
supports an executive director's responsibility to perform both qualifying and non-qualifying tasks. The 
petitioner's reliance on the general descriptions found in the OOH was misplaced, as the OOH provisions do 
not take into account the statutory and regulatory requirements that pertain to the matter at hand. Specifically, 
the petitioner in the present matter is subject to section 203(b)(l)(C) of the Act as well as the definitions and 
provisions found in 8 C.F.R. § 204.5U). Both statutory and regulatory provisions require the petitioner to 
establish that the beneficiary's proposed employment would primarily be in a qualifYing managerial or executive 
capacity. The regulation at 8 C.F.R. § 204.5(j)(5) expressly instructs the petitioner to provide a detailed 
description of the beneficiary's proposed job duties in order to facilitate an accurate understanding of the 
proposed employment and allow for a proper determination as to whether the proposed employment meets 
statutory and regulatory guidelines. Simply meeting general guidelines in the OOH is not sufficient. 
The petitioner also disputed the depth of the director's review of the beneficiary's job description, asserting that 
the director focused his analysis on those tasks that only comprised 25% of the beneficiary's time. However, a 
review of the director's August 4, 2009 decision indicates that the petitioner's interpretation of the decision was 
inaccurate. The director expressly referred to the beneficiary's responsibility for providing professional services 
to customers, acting as the petitioner's representative in legal and commercial arenas, identifying new markets, 
and acting as liaison with potential clients. All of these job duties were placed in an untitled category along with 
other tasks, which cumulatively would consume 75%, or the primary portion ofthe beneficiary'S time. The AAO 
notes that the petitioner failed to comply with the director's express RFE request, which instructed the petitioner 
to list the beneficiary's specific job duties and to assign a time constraint to each individual job duty. In lieu of 
following these instructions, the petitioner grouped numerous tasks together and assigned a time constraint to the 
overall group of tasks rather than to each individual task. 
The format adopted by the petitioner failed to establish how much of the beneficiary's time would be allocated to 
qualifying versus non-qualifying tasks. Given that both the 75% and the 25% categories contained non­
qualifying tasks, it was particularly critical for the petitioner to comply with the director's request, which sought 
to elicit the precise information that would establish whether the primary portion of the beneficiary's time would 
be spent performing tasks in a qualifying managerial or executive capacity. Tasks such as negotiating contracts, 
providing "professional" services to clients, and acting as a liaison for potential clients are not qualifying 
managerial or executive tasks, regardless of their professional nature or the petitioner's need to have the 
beneficiary carry out these non-qualifying tasks. 
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 would 
perform are only incidental to the proposed position. 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 I&N Dec. 593, 604 (Comm. 1988). In light of the petitioner's failure to assign specific time 
constraints to the beneficiary'S job duties, the AAO is unable to conclude that the primary portion of his time 
would be allocated to tasks in a qualifying managerial or executive capacity. 
Page 6 
In addition to the beneficiary's job duties, the AAO also finds that it is appropriate to consider other relevant 
factors, such as the petitioner's organizational hierarchy, which shows the complexity of a given entity and 
the beneficiary'S placement in relation to other employees, as well as the petitioner's overall staffing, which 
allows the AAO to gauge the extent to which the petitioner is able to relieve the beneficiary from having to 
focus the primary portion of his time on the performance of non-qualifying operational tasks. 
The petitioner claimed four employees, iocludiog the beneficiary, at the time the petition was filed. Without a 
specific statement explaioiog how the company functions on a daily basis, who performs the petitioner's non­
qualifYing tasks, and how the existiog organizational structure is sufficient to relieve the beneficiary from haviog 
to perform primarily non-qualifYing tasks, the AAO is unable to affirmatively conclude that the beneficiary would 
allocate his time primarily to the performance of tasks in a qualifYing managerial or executive capacity. On the 
basis of this initial conclusion, this appeal cannot be sustained. 
The second ineligibility ground to be addressed io this proceediog is the petitioner's ability to pay the 
beneficiary's proffered wage. In determining the petitioner's ability to pay the proffered wage, USCIS will first 
examioe whether the petitioner employed the beneficiary at the time the priority date was established. If the 
petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than 
the proffered wage, this evidence will be considered prima facie proof of the petitioner's ability to pay the 
beneficiary'S salary. 
The petitioner iodicated that the beneficiary would be compensated $1,800 per week, which is approximately 
$93,600 per year. Although the petitioner provided its partnership tax return for 2007, this document is not 
relevant, as the petitioner filed the instant Form 1-140 on January 16, 2009. Similarly, the AAO notes that the 
petitioner's 2008 tax return, which was provided in response to the RFE, is also irrelevant, as it too does not 
establish the petitioner's ability to pay the beneficiary's wage as of January 2009. Thus, there is no iodication that 
the beneficiary has been remunerated a salary equal to or greater than the proffered wage. 
While USCIS may rely on the petitioner's net income figure as reflected on the federal income tax return as an 
alternate means of determining the petitioner's ability to pay, the AAO finds that the record io this matter 
lacks documents that would address the critical time period, i.e., the date the petition was filed. As noted 
above, tax returns or other documents that predate the filing of the petition are not relevant. See 8 C.F.R. 
§ 204.5(g)(2). 
Lastly, the AAO frods that the foreign entity's pledge to lend financial assistance to the petitioning entity, as 
iocluded io RFE response statement dated April 13, 2009, is also irrelevant in this matter. To be clear, the issue 
io the matter ofa Form 1-140 is not whether the beneficiary will be paid the proffered wage (which may be made 
possible with the assistance of the foreign entity), but rather whether the petitioner itself has the fmancial ability 
to pay that wage. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Corom. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972». As the petitioner has 
failed to provide evidence of its ability to pay the beneficiary'S proffered wage at the time of filing, it does not 
meet the regulatory criteria discussed at 8 C.F.R. § 204.5(g)(2). On the basis of this additional finding, the 
iostant 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 proceediogs, the burden of proviog eligibility for the benefit sought 
Page 7 
remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, the petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.