dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac}, 
PUBLIC Copy 
FEB 2 1 2.012 
DATE: 
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 
'04 . 
OFFICE: NEBRASKA SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) ofthe 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 I-290B, Notice of Appeal or Motion, 
with a fee of $630. 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, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-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 Hawaiian corporation that seeks to employ the beneficiary as its executive director/general 
manager. 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. 
§ 1 1 53(b)(1)(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated January 6, 2009, which included 
information regarding the petitioner's eligibility for the immigration benefit sought as well as a brief 
description of the beneficiary's proposed employment. The petitioner also provided supporting evidence, 
including the petitioner's financial and corporate documents and documents pertaining to the petitioner's U.S. 
subsidiary. Although the petitioner indicated that the beneficiary was employed abroad by an affiliate entity, 
the statement contained no information about the beneficiary's foreign 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 July 28, 2009 instructing the 
petitioner to supplement the record with documentation regarding the beneficiary's foreign employment as 
well as his proposed employment with the U.S. entity. Specifically, the director asked the petitioner to 
provide a definitive statement describing the beneficiary'S specific job duties with each entity and to assign a 
time allocation to each of the listed job duties. The petitioner was also asked to discuss the beneficiary's 
subordinates in terms of their respective job titles, job duties, and qualifications. 
In response, the petitioner provided a statement from counsel dated September 3, 2009. Counsel stated that 
the beneficiary would allocate 70% of his time working for the petitioning entity and 30% of his time working 
for the petitioner's U.S. subsidiary. Counsel provided a list comprising the beneficiary'S proposed job duties 
and responsibilities with the petitioning entity and assigned a percentage of time to each item. Additionally, 
the petitioner provided its updated organizational chart and its quarterly wage contribution report for the first 
quarter of 2009 during which the Form 1-140 was filed. With regard to the foreign entity, while the petitioner 
provided relevant organizational charts depicting the foreign entity's staffing hierarchy and described the 
positions of employees listed in those charts, a job description for the beneficiary was not provided. It is 
noted that failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. § 103.2(b)(14). 
After reviewing the record, the director concluded that the petitioner failed to establish that the foreign entity 
employed and that the petitioner would employ the beneficiary in a qualifying managerial or executive 
capacity. The director therefore issued a decision dated January 28, 2010 denying the petition. The director 
found that the petitioning entity had not reached a level of organizational complexity that would require the 
services of two managerial or executive employees. 
On appeal, the petitioner submits a statement dated February 23, 2010, which was later followed by an 
appellate brief disputing the denial of the petition. As counsel did not address the beneficiary'S employment 
abroad in either of his submissions, the AAO finds that the petitioner has effectively conceded the director's 
adverse conclusion with regard to the beneficiary's employment with the foreign entity and the petition will 
be denied on the basis of this initial conclusion. The discussion below will therefore focus on the 
beneficiary'S proposed employment. 
Page 3 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall flrst 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 classiflcation 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 speciflc in limiting this provision to only those executives and managers who 
have previously worked for a flrm, 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 certiflcation is required for this 
classiflcation. 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 to be addressed in this proceeding is the beneflciary's employment capacity in his proposed 
position with the petitioning U.S. entity. Speciflcally, the AAO will examine the record to determine whether 
the petitioner submitted sufficient evidence to establish that it would employ the beneficiary in the United 
States in a qualifying 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 flre or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
Page 4 
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 flrst-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. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization ill 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 examining the executive or managerial capacity of the beneficiary, the AAO will look flrst to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.SG)(S). The AAO will then consider this 
information in light of the petitioner's organizational hierarchy, the beneflciary's position therein, and the 
petitioner's overall ability to relieve the beneflciary from having to primarily perform the daily operational 
tasks. The purpose of a detailed job description is to enable u.s. Citizenship and Immigration Services 
(USCIS) to gain a meaningful understanding of the types of tasks that will consume the beneflciary's time. 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 90S F.2d 41 (2d. Cir. 1990). 
In the present matter, the job description offered in response to the director's RFE lacks sufflcient information 
about the beneflciary's speciflc job duties. For instance, the petitioner indicated that IS% of the beneflciary's 
time would be allocated to focusing on the petitioner's finances, including budgeting for expenditures and 
operating costs, deflning strategic and operational plans, allocating resources, and preparing budget proposals 
to be reviewed and approved by the board of directors. This information is vague as it fails to cite speciflc 
tasks that the beneficiary would undertake on a daily basis in his effort to meet these overall broad job 
responsibilities. Similarly, the AAO is unable to ascertain what speciflc tasks the beneflciary would perform 
in his efforts to "ensure ongoing quality care by developing and implementing patient care policies." The 
petitioner did not define what is meant by "quality care," nor state what specific patient care policies have 
been implemented already such that the AAO would gain an understanding of the beneficiary's specific role. 
The petitioner also failed to cite specific tasks in the beneficiary's role of overseeing, directing, and leading 
daily activities that pertain to the goods and services offered by the petitioner. It can be argued that the role of 
leader of daily activities is one that is assumed by any individual who is placed at the top of an organizational 
Page 5 
hierarchy. As such, the petitioner must specifY what actual tasks the beneficiary would perform; merely 
reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient. 
The AAO further notes that the claim that the beneficiary's budget proposals would be subject to review by 
the board of directors lacks credibility, as the record shows that the beneficiary is the board member with 
controlling interest in the petitioning entity. Moreover, the very act of preparing budget proposals is 
indicative of an operational task, which would be deemed non-qualifying. The AAO also fmds that meeting 
with vendors, contractors, and customers and negotiating orders and agreements fall within the category of 
non-qualifying operational 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 his/her 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). Here, not only does the job description list certain non­
qualifYing tasks, but a considerable portion of the beneficiary's job description is comprised of general 
information, which fails to delineate specific job duties and thus precludes the AAO from being able to 
determine how much of the beneficiary'S time would be spent performing qualifYing tasks versus those that 
are non-qualifying. 
Additionally, while Part 5, Item 2 of the Form 1-140 indicates that the petitioner was claiming a total of 
eleven employees at the time of filing, the petitioner's 2009 first quarterly wage report, which accounts for 
reported employees at the time of filing, shows that the petitioner's staff was comprised of only seven 
employees. See RFE response, Exhibit 58. 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). The petitioner has not provided any documentation to support 
the claim of having eleven employees at the time of filing the petition. 
A review of the quarterly wages paid at the time of filing indicates that the petitioner's sales manager, its 
intake coordinator, and its computer information specialist were not paid wages commensurate with full-time 
employment. While the petitioner's organizational chart lists a sales staff, one on-call information technology 
employee, several delivery employees, and two financial staff members, there is no evidence to establish that 
any of these individuals were employed by the petitioning entity at the time the Form 1-140 was filed. 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 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). It is further noted that any employees 
the petitioner may have hired after the Form 1-140 was filed would not be considered for the purpose of 
determining the petitioner's eligibility, which must be established on the basis of facts and circumstances that 
existed at the time of filing. 8 C.F.R. § 103.2(b)(1). 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). 
Page 6 
In summary, neither the beneficiary's job description nor the petitioner's organizational composition supports 
the claim 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. As previously noted, the job description offered in the 
present matter is overly vague, as it fails to provide needed information about the beneficiary's specific daily 
tasks, and the petitioner's organizational hierarchy contained far fewer employees than those claimed initially 
in the Form 1-140 and in the organizational chart that was submitted in response to the director's RFE. In 
reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed that 
USC1S "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. Us. Citizenship and Immigration Services, 469 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic ofTranskei 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). 
Despite counsel's attempt to distinguish between the facts in Family, Inc. from those in the present case, the 
distinctions made by counsel are not sufficient to establish that the petition warrants approval. Id. The fact 
that the petitioner failed to provide supporting evidence to establish that it had eleven employees at the time 
of filing as claimed in the Form 1-140 warrants further information explaining how the petitioner planned to 
relieve the beneficiary from having to primarily perform non-quali:fYing operational tasks given the 
organizational composition that was in place at the time of filing. Such an explanation necessarily requires a 
detailed description of the tasks the beneficiary would perform and an explanation establishing that the 
petitioner's staffing at the time of filing the petition was sufficient to allow the beneficiary to allocate the 
primary portion of his time to the performance of managerial- or executive-level tasks. This crucial 
information is not present in the record. 
In light of the deficiencies as described above, the AAO finds that the petitioner has failed to establish that the 
beneficiary was either employed abroad or that he would be employed by the U.S. entity in a qualifying 
managerial or executive capacity. Based on these adverse findings, 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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.