dismissed EB-1C Case: Business Management

.. 
identifYing data deleted to 
prevent clearly unwarr~ted 
invasion of personal pnvacy 
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 
PUBLlCCOPY 
DATE: JUL 0 2 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.c. § lI53(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please fmd 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)(i)(i) requires that any motion must 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 
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 California corporation that seeks to employ the beneficiary as a 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 supplemental statement dated November 20, 2009, 
which contained relevant information pertaining to the petitioner's eligibility, including an overview of the 
petitioner's business and descriptions of the beneficiary's foreign and proposed employment. The petitioner 
also provided supporting evidence in the form of financial and corporate documents pertaining to the 
petitioner and its claimed foreign parent entity. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued two notices of intent to deny (NOrD), one on April 16, 2010 and the other on 
June 10, 2010. In the first NOrD, the director determined that the record lacked adequate job descriptions for 
the beneficiary's foreign and proposed employment. The director further noted that some of the duties 
attributed to the beneficiary's employment in the United States could not be deemed as qualifYing within a 
managerial or executive capacity. In the second NOrD, the director noted that a response to the first NOrD 
was not received and thus determined that the record was still lacking adequate job descriptions with regard to 
the beneficiary's foreign and proposed positions. The director reiterated prior observations, stating that the 
descriptions provided were overly general and 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 record shows that the petitioner did not respond to either notice. 
Accordingly, after reviewing the record again, the director concluded that the petitioner failed to establish that 
the petitioner would employ the beneficiary in a qualifYing managerial or executive capacity. The director 
therefore issued a decision dated October 12,2010 denying the petition. 
On appeal, the petitioner submits a brief, indicating that U.S. Citizenship and Immigration Services (USCIS) 
created confusion by first issued a notice approving the petitioner's Form 1-140 and following up that notice 
with an adverse decision denying the same Form 1-140. The petitioner asserts that there is no evidence on the 
record to suggest that the beneficiary is not eligible for the immigrant classification sought and further asserts 
that the director purposely overlooked evidence of eligibility. 
While the AAO takes note of an apparent USCIS oversight in prematurely issuing an approval notice, the 
record nevertheless shows that the director intended to inform the petitioner of various key evidentiary 
deficiencies, as evidenced by the director's issue of not one, but two NarDs. Both NarDs focused on job 
descriptions and both found that the information provided was not sufficient to establish that the beneficiary 
would be employed in a qualifying managerial or executive capacity. The AAO finds that the petitioner's 
arguments fail to properly supplement the record with crucial information concerning the beneficiary's 
proposed position with the U.S. entity. The discussion below will provide an analysis of the relevant 
submissions and will explain the underlying reasoning for the AAO's decision. 
Page 3 
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 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 I-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. 
The primary issue to be addressed in this proceeding is the beneficiary's employment capacity in his proposed 
position with the petitioning U.S. entity. Specifically, the AAO will examine the record to determine whether 
the petitioner submitted suffIcient evidence to establish that it 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 101 (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 fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
Page 4 
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 IOI(a)(44)(B) of the Act, 8 u.s.c. § I 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 103.2(b)(l4). The petitioner did not provide a response to either of the two NOlDs that 
were previously issued. Therefore, the AAO will not accept any evidence that the petitioner now submits on 
appeal to address defIciencies that were previously discussed in either NOlD. See Matter of Soriano, 19 I&N 
Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
In examining the executive or managerial capacity of the benefIciary, the AAO will look fIrst to the 
petitioner's description ofthe job duties. See 8 C.F.R. § 204.5(j)(5). The AAO also fInds that it is appropriate 
and often necessary to consider other relevant factors, such as the petitioner's organizational hierarchy, which 
shows the complexity of a given entity and the benefIciary's placement in relation to other employees, as well 
as the petitioner's overall staffIng, which allows the AAO to gauge the extent to which the petitioner is able to 
relieve the benefIciary from having to focus the primary portion of his time on the performance of non­
qualifying operational tasks. 
The petitioner submitted an initial statement dated November 20, 2009 and a subsequent statement dated 
April 10, 2010, both containing information about the benefIciary's proposed employment with the U.S. 
entity. The fIrst statement broadly indicated that the benefIciary would oversee and coordinate commercial 
operations, forge business relationships with customers and distributors and engage in contract negotiations, 
monitor consumer performance and look for marketing opportunities, and assign sales and determine 
inventory requirements. 
Page 5 
Without further explanation, it is unclear how forging customer relationships, negotlatmg contracts, and 
engaging in the marketing of the petitioner's services can be deemed as tasks in a qualifying managerial or 
executive capacity within the statutory definitions. 
In reviewing the petitioner's April 10, 2010 statement, the AAO finds that the petitioner reiterated much of 
the information that was provided in the earlier supporting statement and further noted that the beneficiary 
would have authority to recruit, hire, train, and fire employees, implement policies, and make executive 
decisions. While this information indicates that the beneficiary would enjoy a high degree of discretionary 
authority, it does not establish that the beneficiary would allocate his time primarily to the performance of 
tasks within a qualifying managerial or executive capacity. 
Additionally, while the AAO does not concur with the director's adverse fmding on the basis of the 
petitioner's staffing levels, given that the petitioner has not provided information concerning its 
organizational hierarchy or the beneficiary's placement therein, the fact remains that the record indicates that 
non-qualifying operational tasks will, to some degree, comprise the beneficiary's proposed employment. That 
being said, while the AAO acknowledges that no beneficiary is required to allocate 100% of his 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). 
The director twice made an effort to elicit crucial information about the beneficiary's managerial role and 
daily job duties. As the petitioner failed to provide the requested information, the AAO cannot conclude that 
the beneficiary's proposed position with the U.S. entity would be within a qualifying managerial or executive 
capacity. On the basis ofthis determination the instant petition cannot be approved. 
Furthermore, while not previously addressed in the director's decision, the AAO finds that the petitioner has 
failed to I) establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity or 2) provide evidence of its claimed qualifying relationship with the beneficiary's foreign employer. 
With regard to the beneficiary's foreign employment, the petitioner indicated that the beneficiary performed a 
number of non-qualifying tasks, including developing contracts with potential clients, making sales 
presentations, engaging in contract negotiations, consulting clients, and seeking out product improvements 
and business opportunities. The information provided does not establish that the beneficiary allocated the 
primary portion of his time to tasks ofa qualifying managerial or executive nature. 
With regard to the petitioner's qualifying relationship with the beneficiary's foreign employer, the AAO notes 
that the regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
Page 6 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
Although the petitioner provided bank statements, business invoices, and its own corporate and business 
documents in support of the Form 1-140, none of these submissions establishes that the beneficiary's foreign 
employer is the parent entity in an alleged parent-subsidiary relationship. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornrn. 1972)). 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajJ'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DO}, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot 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.