dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent clem:kY unwarr~nted 
invasion of personal privacy 
I'lmIJCCOPY 
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 
DATE: NAY 292012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: 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: 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 with 
the field office or service center that originally decided your case by filing a 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)(1)(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.uscis.gov 
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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 California corporation that seeks to employ the beneficiary as its CFO and 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. 
§ 1153(b)(1 )(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated October 21,2009, which described the 
nature of the petitioner's business and included information pertaining to the beneficiary's foreign and 
proposed employment. The petitioner also provided both entities' financial and corporate documents. 
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 February 18, 2010 informing the 
petitioner of various evidentiary deficiencies and allowing the petitioner the opportunity to supplement the 
record with documents establishing eligibility. 
The petitioner provided a response, which included supplemental information pertaining to the beneficiary's 
foreign and proposed employment as well as additional supporting evidence in the form of wage, tax, and 
bank documents. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary 
was employed abroad or that he would be employed in the United States in a qualifying managerial or 
executive capacity. The director therefore issued a decision dated June 14, 2010 denying the petition. The 
director found that the petitioner offered insufficient information about the beneficiary's job duties with each 
entity and also questioned the petitioner's ability to relieve the beneficiary from having to primarily carry out 
non-qualifying tasks given the company's limited support staff. 
On appeal,l the petitioner submits a statement from the beneficiary asserting that the director "misunderstood 
and mischaracterized" various documents and facts that were previously offered in support of the petitioner's 
claim that the beneficiary's foreign and proposed employment fit the definition of managerial or executive 
capacity. 
The AAO finds that the beneficiary's assertions are not persuasive and fail to overcome the director's denial. 
All of the petitioner's submissions have been reviewed. All relevant documentation that pertains directly to 
the key issue in this matter will be fully addressed in the discussion below. 
Section 203(b) of the Act states in pertinent part: 
1 Effective March 4, 2010, the regulation at 8 C.F.R § 292.4(a) requires that a "new [Fonn G-28] must be filed with an 
appeal filed with the [AAO]." Title 8 C.F.R § 292.4(a) further requires that the Fonn G-28 "must be properly completed and 
signed by the petitioner, applicant, or respondent to authorize representation in order for the appearance to be recognized by 
DHS." The record in the present matter does not contain a new, properly executed Form G-28, Notice of Entry of 
Appearance as Attorney or Accredited Representative. Therefore, the AAO cannot consider prior counsel, who assisted 
the petitioner in the filing of the Fonn 1-140, as the petitioner's attorney of record. 
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(1) Priority Workers. -- Visas shall ftrst be made available ... to qualifted 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 classiftcation 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 afftliate 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 afftliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is speciftc in limiting this provision to only those executives and managers who 
have previously worked for a ftrm, corporation or other legal entity, or an afftliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its afftliate or subsidiary. 
A United States employer may fIle a petition on Form 1-140 for classiftcation of an alien under section 
203(b)(1)(C) of the Act as a multinational executive or manager. No labor certiftcation is required for this 
classiftcation. 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 issues to be addressed in this proceeding call for an analysis of the beneftciary's job duties. 
Speciftcally, the AAO will examine the record to determine whether the petitioner submitted sufftcient 
evidence to establish that the beneficiary was employed abroad and would be employed in the United States 
in a qualifying managerial or executive capacity. 
Section 10 1 (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 ftre 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 10 1 (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 1ll which the 
employee primarily--
(i) directs the management ofthe 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 fIrst to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5G)(5). The AAO will also consider other 
relevant factors, such as the organizational hierarchy of the entity in question, the benefIciary's position 
therein, and the employing entity's overall ability to relieve the beneficiary from having to primarily perform 
the daily operational tasks of the business. Although an entity's size alone will not determine whether the 
employment in question qualifies as employment in a managerial or executive capacity, this factor is relevant 
and is often an indicator of an entity's ability to relieve the benefIciary from having to primarily perform non­
qualifying operational tasks on a daily basis. 
In reviewing evidence that pertains to the benefIciary's employment abroad, the AAO agrees with the 
director's fInding that the petitioner provided a defIcient job description that failed to convey a detailed 
account of the specific tasks the beneficiary performed on a daily basis. Published case law clearly supports 
the pivotal role of a clearly defIned job description, as the actual duties themselves reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Sa va , 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 
(2d. Cir. 1990). Although the petitioner's original support statement emphasized the benefIciary's 
discretionary decision-making, claiming that the beneficiary managed the foreign entity's daily operations 
and was responsible for hiring and fIring personnel, this general information does not establish that the actual 
tasks the beneficiary performed on a daily basis were primarily at a managerial or executive level. 
Despite the RFE response statement dated March 28, 2010, which contains supplemental information about 
the beneficiary's employment abroad, the petitioner failed to list the beneficiary's specific daily tasks with the 
requested time allocations. As the director properly pointed out in the denial, merely stating that 75% of the 
benefIciary's time was allocated to supervising subordinate employees in their respective positions does not 
clarify what specific supervisory duties were performed. Additionally, the AAO finds that certain job duties 
that were involved in project management and coordination, including trade show participation, creation of 
Page 5 
sales and marketing programs, and business development, are indicative of operational tasks required to 
provide services that were offered by the foreign entity. It is noted that 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 10 1 (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 provide sufficient information establishing what specific tasks occupied 
75% of the beneficiary's time, the AAO cannot conclude that the beneficiary allocated the primary portion of 
his time to qualifying tasks. An affirmative conclusion as to the nature of the beneficiary's foreign 
employment would necessarily require a specific account of the job duties performed-information which the 
petitioner did not provide. The beneficiary's submission of third-party statements, which repeat the claims 
the petitioner originally made, is self-serving and is not sufficient to overcome the director's decision, which 
properly focused on the petitioner's failure to submit necessary information about the beneficiary's 
employment abroad. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of Ca lifo rn ia, 14 I&NDec. 190 (Reg. Comm. 1972)). 
The declaration of in which she claims that she has a baccalaureate degree, is 
inconsistent with the statement the petitioner provided in the RFE response, where the petitioner indicated 
that has a high school diploma, not a baccalaureate degree as claimed on appeal. 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). Moreover, doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Id. at 591. 
Turning to the proposed employment offered by the U.S. petitioner, the AAO similarly fmds that the 
petitioner failed to provide specific information about the actual job duties to be performed. As with the 
petitioner's description of the beneficiary'S foreign employment, the proposed employment was described 
using vague statements claiming that the beneficiary would allocate most of his time-70o/o--to managing 
subordinate personnel. Not only did the petitioner fail to specifically identify any actual supervisory tasks the 
beneficiary would perform, but it is unclear that the petitioner's staffing, which is comprised of both part-time 
and full-time employees in order to meet the petitioner's "seasonal" needs, has not been shown to be 
sufficient to relieve the beneficiary from having to primarily perform non-qualifying tasks. 
While the AAO agrees with the beneficiary'S assertion that the director failed to consider the part-time status 
of certain employees when calculating their hourly wages, the petitioner must nevertheless establish that its 
staffmg at the time of filing the petition was sufficient to relieve the beneficiary from having to primarily 
perform the petitioner's daily operational tasks. In light of the beneficiary's claim that the petitioner's needs 
would vary depending on seasonal demand, it is not clear how the beneficiary'S job duties would be affected 
by a considerably diminished staff during seasons of less demand. The fact that the beneficiary would 
manage a small business does not necessarily establish that he would be employed in a managerial or 
executive capacity within the meaning of section 101(a)(44) of the Act. Regardless of the economic climate 
or the petitioner's specific needs, in order to establish that the proposed employment would be in a managerial 
, ' . 
Page 6 
or executive capacity, the petitioner must show that the primary portion of the beneficiary's time would be 
allocated to performing qualifYing managerial- or executive-level job duties. 
Notwithstanding the beneficiary's discretionary authority and his placement within the petitioner's 
organizational hierarchy, the petitioner has not established that the job duties to be performed in the scope of 
the petitioner's retail-based business would be primarily of a qualifying nature. 
The petitioner's reliance on previously approved L-IA petitions is misplaced. Each nonimmigrant and 
immigrant petition is a separate record of proceeding with a separate burden of proof; each petition must 
stand on its own individual merits. USCIS is not required to assume the burden of searching through 
previously provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. If previous nonimmigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the approval( s) would constitute material and 
gross error on the part of the director. As the director previously indicated, the AAO is not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 
593, 597 (Comm. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged 
errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
The AAO cannot conclude that the beneficiary'S employment abroad and his proposed employment with the 
U.S. entity either involved or would involve, respectively, the performance of primarily managerial or 
executive tasks. Therefore, the instant petition may not 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.