dismissed EB-1C Case: Business Management

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DATE: JAN 0 9 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 
OFFICE: NEBRASKA SERVICE CENTER 
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: 
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.P.R. § 103.5. Do not file any motion 
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 reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting 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 United States corporation that seeks to employ the beneficiary in the United States as its 
business support executive. 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)(l)(C), as a multinational executive or manager. 
In support of the Form I-140 the petitioner submitted a statement dated November 24, 2010, which contained 
relevant information pertaining to the beneficiary's employment abroad and with the petitioning entity. The 
petitioner also provided a copy of its 2009 annual report. 
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 August 10, 2011 informing the petitioner of 
various evidentiary deficiencies. The RFE included requests for a more detailed job description pertaining to 
the beneficiary 's foreign and proposed employment with a list of the beneficiary's job duties and their time 
allocations, both entities' organizational charts depicting each. company 's staffing structure and the 
beneficiary's placement therein, and job descriptions of the beneficiary's supervisors and subordinates in each 
entity. The petitioner was expressly asked to assign time allocations to individual job duties rather than 
groups oftasks. 
The petitioner responded with a statement dated October 3, 2011 and provided the requested organizational 
charts depicting the beneficiary's positions with the foreign and U.S. employers. Although the petitioner 
attempted to comply with the director's requests for additional information pertaining to the beneficiary 's 
foreign and proposed job duties, the job descriptions that were provided consisted of grouped tasks and job 
responsibilities, which was the very format that the director had asked the petitioner to avoid and instead to 
itemize the beneficiary 's individual job duties and assign time constraints to each task. The petitioner 
referred to the beneficiary as the "de fact chief of staff' to the president and CEO of the petitioning 
organization. The beneficiary would exercise executive-level decision-making on behalf of her direct 
superior-the president and CEO of the company. The beneficiary's position abroad was described as that of 
an office manager where her immediate superior was the head of the IT group. 
The director assessed the petitioner 's job description and while he determined that the petitioner provided 
additional information pertaining to the beneficiary foreign and proposed employment, he nevertheless 
concluded that the petitioner failed to establish that the beneficiary was employed abroad and would be 
employed in the United States in a qualifying managerial or executive capacity. The director determined that 
the petitioner failed to provide sufficient detail to fully describe specific day-to-day tasks and further found 
that both job descriptions indicate that the beneficiary 's positions involve managerial and non-managerial 
aspects where the beneficiary is shown as managing a function and also performing certain non-qualifying job 
duties associated with that function . 
. On appeal, the petitioner asserts that the director failed to adequately address the organizational charts that the 
petitioner submitted in compliance with the RFE. Counsel asserts that new evidence is being submitted in 
response to the director 's adverse findings. 
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After reviewing counsel's brief statement and the additional statement dated December 21, 2012, which the 
petitioner submitted in support of the appeal, the AAO finds that the supporting evidence is unpersuasive and 
fails to overcome the director's adverse findings. The AAO will provide a full discussion addressing the 
petitioner's submissions in the decision 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 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 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 thos~ 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)(l)(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. 
As previously noted, the two primary issues to be addressed in this decision concern the beneficiary's 
employment capacity in her former position with the foreign entity and in her proposed position with the U.S. 
petitioner. Specifically, the AAO will examine the record to determine whether the petitioner submitted 
sufficient evidence to establish that the beneficiary was employed abroad and whether she would be 
employed 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 m which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
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(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 fire 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 
(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. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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. 
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. § 204.5(j)(5). Published case law supports the pivotal 
role of a detailed job description, as 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, 905 F.2d 41 (2d. Cir. 1990); 
see also 8 C.F.R. § 204.5(j)(5). The AAO also finds that it is often necessary to consider other relevant 
factors, including the petitioner's organizational hierarchy and the beneficiary's position therein. 
In the present matter, the record lacks comprehensive job descriptions delineating the beneficiary's day-to-day 
tasks in her former and proposed positions. 
Turning first to the issue of the beneficiary's employment with the foreign entity, the record shows that 
counsel submitted a job description in his October 3, 2011 statement in which he stated that 50% oUhe 
beneficiary's time was allocated to managing the daily operations of the IT, corporate affairs, and risk 
management groups, central compliance, and fC?ur group business support specialists. Counsel stated that 
such management involved developing and managing office administration procedures, overseeing financial 
report and cost control, managing annual profit share and remuneration process, recruiting staff, overseeing 
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staff assignments and relocations, overseeing document management and archiving, and coordinating with the 
petitioner's foreign affiliate offices. Counsel did not ide~tify the specific actions the beneficiary performed in 
her role as manager of office administration procedures and the annual profit sharing process, nor did counsel 
explain what was involved in overseeing financial report and cost control or the document management 
process. Counsel indicated that the other 50% of the beneficiary's time was allocated to managing a four­
person support staff, whose names, position titles, and educational levels were undisclosed, thus precluding 
the AAO from being able to determine whether the subordinates who were under the beneficiary's control 
were professional employees. See section 101(a)(44)(A)(ii) of the Act. 
Additionally, while the AAO has reviewed the foreign entity's organizational chart, which was provided in 
response to the RFE, the chart is not persuasive evidence that the beneficiary's employment abroad was 
within a qualifying managerial or executive capacity. Rather, the chart indicates that the foreign organization 
is comprised of affiliate offices and various departments all of which are headed by the beneficiary's superior, 
not by the beneficiary herself. While the chart indicates that the beneficiary had a defmite role in assisting her 
superior, who was the actual head of the organization, there is no evidence-either in the organizational chart 
or in counsel's job description-that the beneficiary was relieved from having to carry out any necessary non­
qualifying tasks that would normally fall to the assistant of the head of an organization or that t?e non­
qualifying tasks associated with assisting the 
head of an organization did not constitute the primary portion of 
the beneficiary's job duties in her former position with the foreign entity. 
·Turning now to the beneficiary's position with the U.S. employer, counsel's job description indicated that the 
proposed employment would involve participation in the annual profit sharing and remuneration review 
process for 30% of the time, training the new chief operations officer (COO) by introducing him/her to the 
petitioner's business operations and key business contacts for 20% of the time, managing an annual North 
American conference by overseeing the staff responsible for setting up and running the event for 15% of the 
time, managing and overseeing board members' visits to the petitioning entity in the United States for 10% of 
the time, and managing the offices of all senior managing directors by selecting their respective premises, 
suppliers, and contractors, selecting their respective personnel, and training, managing and reviewing each 
managing director's personnel assistant for the remaining 25% of the time. 
The supplemental information provided by counsel did not meet the criteria specified in the RFE, which 
expressly instructed the petitioner to assign time allocations to individual job duties and not to multiple job 
duties grouped together. As indicated above in the discussion of the beneficiary 's former position with the 
foreign entity, counsel's broad use ofvague terms like "manage" and "oversee" is not sufficient to establish 
the beneficiary's specific daily tasks. While these broad terms indicate that the beneficiary's proposed 
position would involve managerial elements, they are not sufficient to establish that the beneficiary would 
allocate her time primarily to the performance of tasks within a qualifying managerial or executive capacity. 
For instance, counsel indicated that the beneficiary and her superior would participate in the process for 
reviewing profit sharing and remuneration. However, counsel did not specify in what capacity the beneficiary 
would participate or what actual job duties would be involved. He also stated that the beneficiary would be 
responsible for training the COO, taking necessary steps to ensure that board members' visits are successful, 
and assuming the role of office manager for senior managing directors. Counsel did not explain how these 
responsibilities fit the definition of managerial or executive capacity. Regardless of the significance of the 
job duties to be performed, the petitioner must establish that the nature of those duties is managerial or 
executive. While the AAO acknowledges that no beneficiary is required to allocate I 00% of his or her time 
to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
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beneficiary would perform are only incidental to the proposed position. An employee who "primarily" 
performs the tasks necessary to prQduce 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 this matter, the petitioner did not provide 
sufficient information about the beneficiary's specific tasks. 
Despite the petitioner 's attempt to overcome the adverse conclusions on appeal , the petitioner's appellate 
brief was a virtual replica of the response statement provided by counsel in response to the RFE. No new 
information was provided to clarify the prior job description. Accordingly, the AAO cannot conclude that the 
beneficiary's former position with the foreign entity or her proposed employment with the U.S. petitioner 
consisted and would consist of tasks that are primarily within a qualifying managerial or executive capacity. 
On the basis of these two adverse conclusions the AAO cannot approve the instant petition. 
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.