dismissed EB-1C Case: Business Management

(b)(6)
DATE: JAN 1 1 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Sec:urity 
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 FILE: ··-=====::::;-' 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Ac,t, 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 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 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 filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscls.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 appeai. The appeal will be dismissed. 
The petitioner claims to be a Texas corporation that seeks to employ the beneficiary in the United States as its 
president. 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. 
§ 1153(b )(1 )(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted an undated statement (at exhibit 3) which contained 
relevant information pertaining to the beneficiary's proposed employment with the petitioning entity. The 
petitioner also provided various documents pertaining to the petitioner's business activities, finances, and 
corporate set-up. 
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 June 21, 2011 informing the petitioner of 
various evidentiary deficiencies. Among the issues addressed in the RFE was the beneficiary's proposed 
employment with the l,J.S. entity. Specifically, the director instructed the petitioner to provide a more detailed 
job description pertaining to the beneficiary's U.S. employment by listing each of the proposed job duties and 
indicating the percentage of time the beneficiary would allocate to each of the items listed. The petitioner 
was also asked to provide job titles, list job duties, and disclose the educational levels of all employees the 
beneficiary would supervise in his proposed position. 
The director's response to this portion of the RFE was contained within Exhibit Q, which named the 
beneficiary's subordinates, briefly described their respective job duties, and included one diploma and one 
college transcript for two ofthe beneficiary's employees, and Exhibit R, which included the beneficiary's job 
description addressing the proposed U.S. employment. The petitioner listed and assigned time constraints to 
each of six broad categories and listed job duties under each category. 
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 determined that the petitioner provided 
a deficient job description which failed to provide insight into 
the beneficiary's actual daily tasks. The director also observed that the position titles of the beneficiary's 
subordinates indicate that managerial employees are disproportionally overrepresented in the petitioner's 
organizational hierarchy. Despite the information provided, the director determined that the petitioner lacks 
the organizational complexity to employ the beneficiary in a primarily managerial or executive capacity. In 
light of these adverse findings, the director issued a decision dated August 8, 2011 denying the petition. 
On appeal, counsel provides a brief disputing the director's decision: Counsel asserts that the petitioner 
provided an adequate job description, which establishes that the beneficiary's duties fit under the statutory 
definition of both managerial and executive capacity and points out that the beneficiary has complete 
discretion over four managerial employees. Counsel contends that the director erroneously based the adverse 
conclusion on the petitioner's failure to submit a delineation of the beneficiary's daily tasks and further states 
that the size of the petitioning business should not be a sole determining factor of the beneficiary's 
employment capacity. 
(b)(6)Page3 
The petitioner's submissions, both on and prior to the appeal, have been considered. The AAO finds that 
counsel's assertions are not persuasive and thus fail to overcome the director's decision. The AAO will 
address the relevant supporting evidence and counsel's appellate brief in the discussion below. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qU.alified 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 finn 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 ftle 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 10l(a)(44)(A) ofthe Act, 8 U.S.C. § 110l(a)(44)(A), provides: 
T)le 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 fue 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 discretit:hi eWer the day~to~oay 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) ofthe Act, 8 U.S.C.§ 1101(a)(44)(B), 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 or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
The primary issue in this proceeding concerns the beneficiary's proposed employment with the petitioning 
entity. Specifically, the AAO wil-l review the record to determine whether the petitioner submitted sufficient 
probative evidence to establish that the beneficiary would be employed in the United States in a qualifying 
managerial or executive capacity. 
When 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. § 204.50)(5) . The AAO also fmds it appropriate to 
consider other relevant factors, including 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. 
I , 
The petitioner failed to adhere to the specific instructions of the RFE, which instructed the petitioner to list 
the beneficiary's job duties and to indicate what percentage of time the beneficiary would spend performing 
each task. Instead, the petitioner provided a list of six broad categories and assigned a percentage of time to 
· each category rather than to the individual job duties that comprise each category. While counsel is correct in 
pointing out that the director did not expressly ask the petitioner to list the beneficiary's "daily" job dutie8, the 
RFE instructions clearly asked for a list of "all duties" of the proposed position. The instructions were also 
clear in asking the petitioner to assign a percentage of time to "each duty," thus indicating that broadly 
assigning time constraints to general categories, rather than to specific job duties, would not constitute 
compliance with the RFE instructions. 
Given that each . category is comprised of both qualifying and non~qualifying tasks, failing to assign time 
constraints to the individual tasks precludes the AAO from being able to gauge how much of the beneficiary's 
time would be spent carrying out qualifying tasks versus those that are not within a qualifying managerial or 
executive capacity. 
(b)(6)
t ' • Ill> 
Page 5 
While the AAO acknowledges that rio beiieficiary is feqtifred 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 
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). With this in mind it is also important to factor in the 
petitioner's staffing to determine whether the petitioner would be capable of relieving the beneficiary from 
having to primarily focus on the performance of non-qualifying tasks. It is noted that merely providing an 
adequately defmed job description (even one that primarily includes tasks within a qualifying capacity) is not 
sufficient without further evidence showing that the petitioner has the underlying support staff to actually 
carry out the necessary operational and administrative tasks that are required for the business to function 
without relying on the beneficiary's direct involvement with the non-qualifying tasks. 
The Form 1-140 indicates that the petitioner had six employees at the time of filing the petition. The 
petitioner's fourth quarterly tax return for 2010, however, shows that the petitioner was staffed with no more 
than four employees when the petition was filed. Given that a number of the beneficiary's job duties involve 
overseeing the performance of daily tasks, it is reasonable to expect that the petitioner would be actually 
staffed with employees who would perform the underlying tasks whose execution the beneficiary would 
supervise. It also stands to reason that if the petitioner did not employ the necessary support staff at the time 
the petition was filed, the job description that so heavily relies ~n the employment of a support staff would be 
considered unreliable. As the petitioner's initially submitted organizational chart identified a total of six 
employees (not including the beneficiary himself) to include an accounting manager, a sales manager and one 
outside sales person, a logistics manager, and a warehouse manager with an assistant, vacancy of any one of 
these positions at the time of filing would leave the AAO to question whether the beneficiary himself would 
be expected to perform the job duties assigned to the vacant position. 
Based on the information provided in the petitioner's quarterly tax return for the time period during which the 
Form 1-140 was filed, the petitioner did not employ. all the individuals whose names and positions are 
depicted in the organizational chart. It is incumbent' upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to exphiin 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 evidence resolving this 
significant inconsistency. Thus, in addition to questioning the reliability of the petitioner's organizational 
chart, the AAO is also led to question how many of the beneficiary's duties depicted as o;versight duties 
would realistically require the beneficiary to actually perform the underlying tasks. For instance, in the 
category "General Duties," the beneficiary is assigned with approving a marketing plan, directing advertising 
campaigns, overseeing the search for new manufacturers and brands, and controlling and authorizing 
modification or creation of software modules. These job duties indicate that someone other than the 
beneficiary would actually perform the duties that the beneficiary would oversee. It is unclear whether the 
petitioner employed the requisite support personnel to relieve the beneficiary from having to perform the non­
qualifying marketing- and technology-related tasks that would purportedly be performed by the beneficiary's 
subordinates. Since the petitioner's organizational chart does not include any marketing or IT personnel, the 
AAO further questions the petitioner's capability to relieve the beneficiary from having to engage in directly 
performing the non-qualifying tasks associated with the marketing and IT functions. Thus, counsel's 
assertion truit the size of the petitioning entity should not factor into a detenpination of the beneficiary's 
(b)(6)
o I • r. 
Page6 
employment capacity is not persuasive or probative, as the AAO cannot determine whether the beneficiary 
would be employed in a qualifying managerial or executive 
capacity without a valid explanation of how the 
petitioner plans to relieve the beneficiary from having to spend 
his time primarily on the performance of non­
qualifying operational tasks. 
Additionally, the AAO is unable to determine whether certain other job duties assigned to the beneficiary are 
of a qualifying nature. Specifically, it is unclear how supporting the sales department, attending client 
negotiations, seeking out new business, attending trade fairs and conferences, directing relationships with 
customs agencies, attending meetings with suppliers, coordinating timing of imports and exports, creating an 
investment plan, and helping the warehouse manager to address mishaps are qualifying U!.sks. Without further. 
clarification of the beneficiary's specific role with respect to these job duties, it is unclear how the job duties 
are indicative of an individual who is primarily employed in a managerial or executive capacity. 
In summary, the record lacks sufficient information about the specific tasks the beneficiary would perform or 
evidence d~m~nstrating that the petitioner employed an adequate support staff at the time of filing the petition 
to relieve the beneficiary from having to allocate his time primarily to the performance of non-qualifying 
tasks. Accordingly, in light of the deficiencies discussed herein, the AAO cannot affirmatively conclude that 
the beneficiary would be employed in a qualifying managerial or executive capacity. On the basis of this 
determination, the instant 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. § 136L The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.