dismissed EB-1C Case: Business Management

(b)(6)
DATE: MAR 0 5 2013 
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 
FILE: 
PETITION: Immigrant Petition for Ali,en Worker as a Mlltinational Executive or Manager Pursuant to 
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Section 203(b)(l)(C)ofthe Immigration and Nationality Act, 8 U.S.C. § ll53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision ofthe Administrative ABpeals 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 casr 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 fiiJ a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I~290B, Noticej of Appeal or Motion, with· a fee of $630. The 
specific requirements for filirig such a request can be found at 8 C.P.R. § 103.5. Do not file any motion 
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directly with the AAO. Please be aware that 8 C.P.R.§ 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to recorlsider or reopen. · · 
Thank you, 
t~ 
'f.-E.on Rosenberg 
Acting Chief, Administrative Appeals 
Office 
www.uscis.gov 
(b)(6)
Page2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on ap~al. The appeal will be dismissed. 
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The petitioner is a Texas corporation that seeks to employ the beneficiary in the United States as its general 
manager. Accordingly, the petitioner endeavors to cla~sify the beneficiary as an employment-based 
immigrant pursuan~ to section ·203(b)(l)(C) of the Immi~ration 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 May 10, 2011, which contained 
relevant information pertaining, in part, to the beneficiary's broposed employment with the petitioning entity. 
The petitioner also provided supporting evidence in the forrrt of corporate, b~siness, and financial documents 
pertaining to the beneficiary's U.S. and foreign employers. · 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
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The director therefore issued a request for evidence (RFE) dated October 7, 2011 informing the petitioner of 
various evidentiary deficiencies . .The petitioner was inst~cted to provide a more detailed job description 
pertaining to the beneficiary's proposed employment listing the beneficiary's job duties and their time 
allocations. The petitioner was also asked to provide itsjorganizational chart depicting the beneficiary's 
subordinates, their job titles, job duties, and respective educational levels. The director requested the same 
evidence to establish . that the petitioner's foreign pare~t co~pany employed the beneficiary in a qualifying 
managerial or executive capacity . Additionally, the directJr requested copies of the beneficiary's quarterly 
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tax returns, including the tax return for the second quarter ofl2011 during which theForm 1-140 was filed. 
Although the petitioner 
provided supplemental job descriP,tions for the U.S. and foreign positions and the 
requested quarterly tax returns, it did not provide the re~uested organizational charts or any information 
pertaining to the petitioner's staffing. 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary ' s employment with the U.S. entity wouldltre within a qualifying managerial or executive 
capacity. The director determined that the petitioner provided a deficient job description that lacked sufficient 
info~ati?n ab~ut the benefic~ary's specific job duties lor th~ . roles of others wi~hin. the petition~r's 
orgamzat10nal hierarchy. The director also commented on the petitioner's lack of orgamzat10nal complexity, 
que~tioning how th~ p~tition~r's ~imited two-pe.rson staff ,ould be.s~fficient to r~lieve the be.neficiary .from 
havmg to allocate his. time pnmanly to the performance of non-quahfymg managenal or executive capacity. 
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With respect to the beneficiary's foreign employment, the director found that the petitioner's response to the 
RFE was insufficient to establish that he was employed in~ managerial or executive capacity. The director 
noted. t.hat the positio? description provided ~as overly' broad .and offer~d. little unde~st~nding of the 
beneficiary's actual duties or the . percentage of t1me he wo~ld allocate to specific tasks. The director further 
commented that, while the petitioner claimed that the bene~iciary supervised five sales employees, it had not 
established that the beneficiary primarily performed high-le~el tasks, or that he supervised a subordinate staff 
· of professionals, supervisors or managers . 
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On appeal, counsel for the petitioner disputes the denial of t~e petition and the director ' s underlying findings 
· and asserts that the beneficiary was employed abroad and would be employed in the United States in a 
qualifying capacity. 
The AAO finds that counsel's assertions are not persuasive and thus fail to overcome the director's adverse 
decision. A comprehensive analysis of the AAO's findings is provided 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 subpara~raphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. --An alien is described 
in this subparagraph if the alien, in the 31years preceding the time . of the 
alien's application for Classification and a<imission into the United States 
under this subparagraph, has bee.n employe~ for at least :I year by a firm or 
corporation or other legal entity or an affili~te or subsidiary . thereof and who 
seeks to enter the United States in order to bontinue to render services to the . I . . 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or e<ecutive. . . . . I . · 
. ·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 legJt entity, or an affiliate or subsidiary of that entity, 
and who are coming to th~ United States to work for the sa..Je entity, or its affiliate or subsidiary. 
A United Statesemployer may file a petition on Form 11140 for classification of an alien under section 
· 203(b)(l)(C) of the Act as a multinational executive or m~nager. 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. 
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Section lOI(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
. I The term "managerial capacity" means an assignment within an organization ·in which the 
employee primarily--
(i) 
(ii) 
manages the organization, or a department, subdivision, function, or 
component of the organization; 
.supervises and controls the worl< of other supervisory, professional, or 
managerial employees , or manAges an essential function within the . I 
organization , or a department or subdivision of the organization; 
(b)(6)
Page4 
(iii) 
(iv) 
if ·. another employee or other employees are directly supervised, has the 
authority to hire and fire or reconimend those as well as other personnel 
actions (such as promotion and leavb authorization), or if no other employee 
is directly supervised, functions at Ia senior level within the organizational 
hierarchy. or with respect to the function managed; and · · 
exercises discretion over the day-to-bay operations of the activity br function 
for 
which the employee has authority . A first-line supervisor is not 
considered to be acting in a mana~erial capacity merely by virtue of the 
supervisor's superv'isory duties Jnl~ss the employees supervised are 
professional. 
Section 10l(a)(44)(B) of the. Act, 8 U.S.C. § 1101(a)(44)(B).
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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 J direction from higher level executives, 
the board of directors, or stockholde~s of the organization . 
Turning to the first issue addressed by the director- the jneficiary's employment capacity in his proposed 
position with the petitioning entity..:.__ the AAO gives prima,'ry consideration to the. petitioner's description of 
the beneficiary's proposed position, as a detailed descriptiqn of the beneficiary's actual daily tasks tends to 
reveal the true nature of the 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 also gives ample consideration to the job duties of the 
beneficiary's subordinate employees, the nature . of thb petitioner's business, the employment and 
remuneration of employees; and any other facts that contbbute to a comprehensive understanding of the 
beneficiary's actual role in a business. 
In the present matter, the AAO finds that the beneficiary's job description is not supported due to the lack of 
. an availa~le support staff To clarify, the . ~titioner' s use of~t~e term "supervise" implies that th~ ~titioner is 
.staffed with employees whom the beneficiary would supervise as they, rather than the beneficiary, would 
perform the underlying operational tasks. However, as prbperly pointed out in the director's decision, the 
petitioner's second quarterly tax return for 2011 indicates th!t the petitioner had no more than two employees, 
including the beneficiary, at the time the Form 1-140 was fiiJd. . · · 
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Not only does the evidence of record conflict with the petitioner's original claim of having three employees, 
but it gives rise to doubt as to the petitioner's ability to relie~e the beneficiary from having to allocate his time 
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(b)(6)
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Page 5 
primariiy to non-quali.fying operational tasks. In other words, merely claiming that the beneficiary would 
assume a leadership position and exercise discretionary deci~ion-making is not sufficient to establish that the 
beneficiary would primarily perform tasks of a qualifying Aature. when there is an overall lack of evidence 
showing who, if not the beneficiary, would carry out thdse tasks that are required for the petitioner to 
successfully sell its products on a daily basis. The petitiondr has not provided adequate supporting evidence . . I . 
establishing who would market and sell its products and who would perform its routine administrative and 
clerical tasks, all of which are undoubtedly 'necessary combonents of the petitioner's sales-based business. 
Going on record without supporting documentary evidencf 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 ofCalijornia, 14 I&N Dec. 190 (Reg. Co~m. 1972)). · . . 
Although counsel's appell~te briefrefers to an employmej appointment letter and receipt for tax services, 
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neither document is sufficient to overcome the director's findings. The employment letter, which is dated 
October 31, 2011, indicates that the petitioner hired to manage the petitioner's daily sales, 
purchases, shipments, and payments. However, as the lettelil
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is d-ated five months after the petition was filed, 
it does not determine that was employed at the petitioning entity at the time of filing. A 
petitioner must establish eligibility at the time~ of filing; a petition cannot be approved at a future date after the 
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petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm: 1971 ). The hiring of an employ after the filing df the petition is not r~levant in overcoming the 
denial in this matter. Additionally, the AAO questions whb was performing job prior to the 
date she was hired. Similarly, as the tax service receipt that ~he petitioner submitted is undated, the relevance 
of !his evidence is also questionable given !he uncertainty as ro thO date(s) !hat !he tax services were provided. 
Finally, the description of the beneficiary proposed employment indicates that a considerable portion of the 
beneficiary's time would be allocated to daily operational tdsks such as networking with and visiting clients, 
conducting research to find new suppliers, negotiating with js!Jppliers and shipping companies, and reporting 
to the parent entity regarding business opportunities. While the AAO acknowledges that no beneficiary is 
required to allocate 100% of his or her time to managerikl- or executive-level tasks, the petitioner must 
establish that the non-qualifying tasks the beneficiary woJld perform are only incidental to the proposed 
position. An employee who "primarily" performs the tas~s necessary to produce a product or to provide 
services is not considered to be "primarily" employed in afmanagerial or executive capacity. See sections 
10l(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 InrJrnarional, 19 I&N Dec. 593, 604 (Comm. 1988). 
Despite the petitioner's need for the beneficiary to carry Lt tasks that are outside the parameters of the 
statutory definitions, the petitioner maintains the burden of e~tablishing that the beneficiary would more likely 
than not primarily perform tasks within a qualifying manag~rial or executive capacity. Given the numerous 
deficiencies discussed above, the AAO finds that neither th~ beneficiary's job description nor the petitioner's 
organizational composition at the time of filing adequate!~ establish that the petitioner would be able to 
relieve the beneficiary from having to allocate the primary portion of his time to non-qualifying operational 
tasks. Therefore, on the basis of this conclusion, the instant Petition cannot be approved. 
Finally, as determined by the director, the record contains similarly deficient evidence with regard to the 
beneficiary's employment capacity with the foreign entity. The director emphasized that the petitioner's 
response to the RFE did not include the requested detailed ~escription of the beneficiary's actual duties, and 
(b)(6)
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further found that, based on the description submitted, it appeared that the beneficiary was primarily engaged 
in the first-line supervision of non-professional sales persorlnel. The AAO further notes that the petitioner 
also failed to provide .the requested organizational chart depidting the beneficiary 's position within the foreign 
entity's organization. It is noted that failure to submit reqJested · evidence that· precludes a material line of . . I . . 
inquiry shall be grounds for denying the petition. 8 C.F.R . § .103.2(b)(l4). 
On appeal, the petitioner submits a revised .position descriptiL for the beneficiary's former role as the foreign 
employer's vice president and senior sales manager and asserts that such job duties reflect that the beneficiary 
was emplo.yed in an executive capacity abroad. The AAO ndtes that the revised duties suggest a significantly 
heightened level of authority when compared to the position! description the petitioner submitted in response 
to the RFE. For example, where the petitioner initially jstated that- the beneficiary was responsible to 
"maintain and extend client networks by attending conferences," it now asserts that the oeneficiary's position 
involved "establish[ing] the goals and policies of the Organizktion through reviewing other employees' reports 
of visiting conferences and seminars to IJlaintain and extend client networks." The petitioner has similarly 
altered all five job duties submitted in response to the requeJt for evidence, added phrases such as ".plans and 
directs the sales division," and "directs the company" withoujexplanation for these changes. 
The petitiOner was given the opportunity to provide a detailed and comprehensive description of the . . . I . . . . 
beneficiary's foreign duties in response to the RFE and failed to do so. The new position description 
submitted on appeal does not add further clarity to the prior ~osition description but instead adds new generic I . . 
language without further specifying the nature of the benefi'ciary's. actual duties. Other than submitting the 
revised position 
description, the petitioner does not otherwi~e address the beneficiary 's foreign employment 
on appeal. Accordingly , the petitioner has failed to overcmAe the director's adverse findings, and the appeal 
will be .dismissed based on the petitioner's failure to establisH that the foreign entity employed the beneficiary 
in a qualifying managerial or executive capacity. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. In vi~a petition proceedings, the burden of proving 
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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. · - I 
ORDER : The appeal is dismissed.