dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvacy 
PUBLIC COPY 
DATE: OFFICE: TEXAS SERVICE CENTER 
APR 26 2011 
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 
SRC 0918752351 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(I)(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)(I)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its general manager. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § IIS3(b)(l)(C), as a 
multinational executive or manager. The director denied the petition based on the determination that the 
petitioner failed to establish that the beneficiary would be employed in the United States in a managerial or 
executive capacity. 
On appeal, counsel disputes the denial, arguing that the director failed to explain why the petitioner's 
organizational complexity is not sufficient to employ the beneficiary in an executive capacity. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 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 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 file a petition on Form 1-140 for classification of an alien under section 
203(b)(I)(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. 
The primary issue in this proceeding is whether sufficient evidence was submitted to establish that the 
petitioner would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § I IOI(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m which the 
employee primarily--
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(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 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) ofthe Act, 8 U.S.C. § I 10 I (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. 
In support of the Form 1-140, the petitioner provided the following description of the beneficiary's proposed 
employment with the U.S. entity: 
• The [beneficiary 1 shall be responsible for overseeing the entire operation. Make sure that 
standard operating procedures (SOP) are in place and implement company's goals. Supervise 
and provide feedback and advice to management on the handling of international and local 
accounts. Oversee all staff related issues, including the power to hire, promote and fire 
management. Coordinates and schedules work loads, as well as staff retention. Control 
budget-operating expenses. Represent the company before all authorities and private parties. 
• Manage and amend, as necessary, policies and procedures towards successful achievement of 
new and existing company projects. Sign loans and checks, as well as control of cash flow. 
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Implement effective pricing, quotations and terms of sale policies and procedures, and price 
conflict resolution. Implement changes to policies based on market demands. 
• Study and analyze market patterns on demand/supply for company's products/services, as 
well as benchmarking. Contract out; approve company's promotional material, such as 
publications and others. Establish customers credit policies. Implement warranty and service 
policy. Make necessary changes to company policies based on market behavior and 
company's capability. Define technological strategies in order to increase sales. 
• Negotiate contracts on behalf of the corporation. Manage company's list of suppliers, 
including outsourcing of services such as shipping companies. Manage sub-contracting of 
staff and support services. 
The petitioner also provided position descriptions of the administrative and operations managers, the accounts 
payable/receivable analyst, and the sales coordinator as well as an organizational chart depicting the 
placement of all five employees within the petitioner's organization. The chart shows the beneficiary at the 
top of the hierarchy with the two managers as his direct subordinates followed by the accounts 
payable/receivable analyst supervised by the administrative manager and the sales coordinator supervised by 
the operations manager. 
On August 8, 2009, the director issued a decision denying the petitioner's Form 1-140. The director found that 
the petitioner lacked the organizational complexity to support the beneficiary in a managerial or executive 
capacity. The director also determined that the petitioner provided a deficient description of the beneficiary's 
proposed employment, failing to establish that the beneficiary would allocate the primary portion of his time 
to tasks within a qualifying managerial or executive capacity. 
On appeal, counsel asserts that the director's analysis was flawed, challenging the director's reliance on the 
petitioner's staffing in making the adverse finding. Counsel also disagrees with the finding that the petitioner 
did not adequately describe the proposed employment and therefore failed to establish that the beneficiary 
would be employed in a qualifying managerial or executive capacity. Counsel contends that the petitioner 
needs an executive to head its five-person entity with annual sales totaling $1 million. 
After reviewing the evidence of record and considering counsel's statements, the AAO finds that counsel has 
failed to overcome the basis for denial. 
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.S(j)(S). The AAO will then consider the 
information regarding the beneficiary'S proposed job duties in light of the petitioner's organizational hierarchy 
and the beneficiary's position therein in order to gauge the petitioner's overall ability to relieve the beneficiary 
from having to primarily perform the daily operational tasks. In the present matter, the record lacks a 
comprehensive description of the beneficiary's day-to-day tasks and does not adequately establish that the 
petitioner's staffing composition at the time of filing was sufficient to relieve the beneficiary from having to 
primarily perform non-qualifying operational tasks. 
In reviewing the petitioner's description of the beneficiary'S proposed employment, the AAO observes that the 
statements are virtually devoid of the specific tasks that the beneficiary would perform on a daily basis. It is 
Page 5 
noted that published case law supports the emphasis placed on a detailed job description, holding that 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). In the present matter, the beneficiary's job 
description is replete with broad statements that focus on the beneficiary'S placement at the top of the 
petitioner's organizational hierarchy and the discretionary decision-making authority that accompanies such a 
pOSll10n. For instance, the petitioner indicates that the beneficiary will assume the responsibility for 
"overseeing the entire operation," which will include implementation of company goals, overseeing the 
petitioner's personnel, controlling the company's budget, and representing the company to outside parties. 
However, it is unclear how these broadly stated business objectives translate into specific daily tasks. The 
AAO similarly questions the specific daily tasks that are associated with the beneficiary'S role in managing 
and amending policies and procedures. Although the petitioner explained that part of the beneficiary's policy­
making role would deal with pricing the petitioner's products and services, no other policies were specified to 
fully convey an understanding of the specific job duties that are associated with the beneficiary'S role as the 
petitioner's policy maker. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient. The regulations require a detailed description of the beneficiary'S daily job duties. 
See 8 C.F.R. § 204.5Gl(5). 
The AAO also notes that portions of the beneficiary'S job description imply that the beneficiary would likely 
perform non-qualifYing tasks that are required for the petitioner's daily operation. For instance, without 
further clarification, it is not readily apparent that job duties such as analyzing market patterns on supply and 
demand, implementing warranty policies, negotiating contracts with suppliers and shippers, and directly 
overseeing subcontractors fit the statutory definition of managerial or executive capacity. While the AAO 
acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or executive-level 
tasks, the petitioner assumes the statutory burden of establishing 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 IOI(a)(44)(A) and (8) 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). 
Additionally, the AAO notes that while a detailed job description is admittedly one major component in 
determining the petitioner's eligibility, the petitioner is expected to provide sufficient evidence to corroborate 
the claims being made. Thus, even if the petitioner were to provide a comprehensive job description that 
adequately describes the tasks the beneficiary would perform on a daily basis, merely satisfYing this 
requirement would be meaningless without sufficient evidence establishing that the organization that seeks to 
hire the beneficiary has the human resources to relieve the beneficiary from having to primarily perform non­
qualifYing operational job duties. 
In the present matter, the AAO cannot conclude that the staffing composition the petitioner had at the time of 
filing warranted the employment of the beneficiary in a managerial or executive capacity. This determination 
is not to be confused with the petitioner's need for an employee who would head its organization. It is 
reasonable to conclude that any organization, regardless of its size, will require at least one employee who 
would assume a leadership role that would entail a high degree of decision-making authority and supervisory 
oversight. However, it is not uncommon for an employee in an organization with limited staffing to meet his 
or her responsibilities as the organization's leader by simultaneously performing qualifYing and non­
qualifYing tasks based on the needs of a particular entity. Therefore, the fact that an individual manages a 
Page 6 
business does not necessarily establish that the proposed employment fits the definition of managerial or 
executive capacity within the meaning of section 101(a)(44) of the Act. While the AAO acknowledges the 
varying needs from one entity to another, a petitioner's needs do not serve to override the petitioner's legal 
burden of having to establish that the beneficiary would primarily perform duties of a qualifYing managerial 
or executive nature. Any petitioner that is not ready and able to employ the beneficiary in a qualifYing 
capacity at the time the Form [-[40 is filed would not merit the immigration benefit sought in the present 
matter. A petitioner must establish eligibility at the time of filing; 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 [&N 
Dec. 45, 49 (Comm. 1971). Based on the evidence and information furnished in the present matter, the AAO 
cannot conclude that the petitioner met its burden of establishing that it was able to employ the beneficiary in 
a qualifYing managerial or executive capacity at the time of filing the petition. For this reason, the 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.