dismissed EB-1C Case: Business Management

(b)(6)
DATE: 
MAR 1 9 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 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 c;ase. 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, 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 entity that seeks to employ the beneficiary in the United States as its general 
manager and CEO. 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 1-140 the petitioner submitted a statement dated May 2, 2011, which contained 
information pertaiping, inpart, to the beneficiary's employment abroad and with the petitioning entity as well 
as his proposed employment with the U.S. entity. The petitioner also provided evidence in the form of 
corporate, ~usiness, and fmancial documents pertaining to both entities. ·\ 
The director reviewed the petitioner's 
submissio.is and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) dated November 14, 2011 informing the petitioner 
that the record lacked sufficient evidence to establish the following: 1) the beneficiary's qualifying 
employment abroad in a managerial or executive capacity; 2) the beneficiary's proposed employment in the 
United States in a qualifying capacity; 3) the petitioner's business activity in the United States for one year 
prior to filing the Form 1-140; and 4) the petitioner's abilityto pay the beneficiary's proffered wage as of the 
date the petition was filed. With regard to the issues of qualifying employment abroad and in the United 
States, the director instructed the petitioner to provide more d~tailed job descriptions pertaining to the. 
beneficiary's foreign and proposed .positions listing the beneficiary's specific daily job duties and the speeific 
percentage of time that the beneficiary allocated and would allocate to each of his assigned tasks. The 
petitioner was also asked to provide each entity's organizational chart depicting the employees in each entity 
as well as their respective job titles, job duties, educational levels, and their full- or part-time statuseS. 
I The petitioner complied with the director's request supplementing the record with additional documentatio~ 
addressing the director's concerns. 
The director reviewed the statements used to describe the beneficiary's foreign and proposed employment and 
determined that such statements · are deficient in numerous ways. ~he director found that the descriptions 
were overly broad and failed to convey an understanding of the actual daily tasks that comprised the 
beneficiary's employment abroad and those that would comprise his proposed employment in the United 
States. The director also found that the job descriptions contained elements .of both managerial and executive 
capacity, thus indicating that the beneficiary's positions are hybrid positions. In addition to the adverse 
findings regarding the beneficiary's 'employment capacity in his foreign and proposed positions, the director 
also concluded that the documentation on record failed to establish that the petitioner was do~g business as 
of May 2010 or that it .had the ability to compensate the beneficiary the proffered wage of .$60,000 annually. 
The director therefore issued a decision dated March 14, 2012 relying on each of the above four adverse 
findings as independent grounds for denial. 
On appeal, counsel for the petitioner disputes all four grounds for denial ~d offers additional evidence in 
support of his statements. 
After considering the appellate brief and supporting evidence, the AAO finds that the petitioner has provided 
sufficient documentation to overcome the adverse fmdings concerning the petitioner's inability to meet.the 
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Page3 
regulatory provisions regarding the time period the petitioner spent doing business prior to· filing the petition 
and the petitioner's abilitY to pay the beneficiary's proffered wage. 
Notwithstanding the withdrawal of two of the director's adverse conclusions on appeal, the AAO nevertheless 
concurs with the director's adverse findings with regard to the beneficiary's employment capacity in his 
foreign ·position and his proposed position with the U.S. entity. The discussion below will address the two 
issues that remain in this matter. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified irmillgrants 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 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 alienunder 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. 
Section 101(a)(44)(A) ofthe Act; 8 U.S.C. § ll0l(a)(44)(A), provides: 
I 
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; 
(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; 
(b)(6)
Page4 
(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 in which the 
employee ·primarily--
(i) . directs the JI¥lnagement 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 reviews the totality of the 
record, starting fust with the petitioner's description of the beneficiary's j(Jb duties. See 8 C.F.R. § 204.50)(5): 
A detailed job description is crucial, as the duties themselves will reveal the true nature of the beneficiary's 
foreign and proposed employment. Fedin Bros, Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
ajj'd, 905 F.2d 41 (2d. Cir. 1990). The AAO will then consider this informaticm in light of other relevant 
factors, including (but not limited to) job descriptions of the beneficiary's subordinate employees, the nature 
of the business conducted by the entities in question, the size of the respective subordinate staffs, and any 
other facts contributing to a comprehensive understanding of the beneficiary's actual role in the businesses of 
the two respective entities. 
The AAO finds that the director failed to adequately address the significant shortfalls in the job descriptions 
the petitioner offered in response to the RFE. As a threshold matter, the AAO first notes that a beneficiary 
may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two 
statutory definitions. If the petitioner chooses to represent the beneficiary as both an executive and a 
manager, it must establish that the beneficiary meets each of the four criteria set forth in the statutory 
definition for executive capacityand the statutory definition for managerial capacity. In. looking to the 
petitioner's original claims contained within the May 2, 2011 support &tatement, the petitioner paraphrased a 
portion of the definition for executive capacity by stating that the beneficiary "is responsible for directing and 
managing the company's overall business and financial operations." Within the same statement the petitioner 
incorporated elements of the definition for managerial capacity, stating that the beneficiary delegates duties to 
his managerial subordinates. 
(b)(6)
Page 5 
Looking to the supplemental job descriptions provided in response to the RFE, the AAO findS that the 
statements were overly vague and devoid of a meaningful description of the beneficiary's actual tasks. As 
previously indicated, specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive or managerial in nature; otherwise meeting the definitions would simply be a ma.tter of 
reiterating the regulations. Id. While the petitioner used words like manage, direct, and control in describing 
the beneficiary's foreign and propos~d employment, such terminology is not sufficient to convey an 
understanding of the specific tasks the beneficiary performed and would perform in his respective positions, 
despite !he leadership role he has maintained throughout the course ofhis employment with the foreign and 
U.S. entities. Merely establishing that the beneficiary's position is at the top of an organizational hierarchy 
and that the beneficiary exercises a high degree of discretionary authority is not sufficient to establish that the 
beneficiary allocated and would allocate his time primarily to the performance of qualifying managerial- or 
executive-level tasks. Moreover, in the case of the petitioning entity, whose organization is considerably 
smaller than the foreign entity, the record fails to establish that the petitioner's staffing at the time of filing 
was sufficient to relieve the beneficiary from having to primarily perform the petitioner's non-qualifying 
operational tasks. A favorable determination of eligibility is unlikely, if not impossible, given the lack of 
ad~quatejob descriptions pertaining to the beneficiary and to the remainder ofthe petitioner's personnel. 
While no.beneficiary is required 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 positions in question. 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 lnternational, 19 I&N Dec. 593, 604 (Comm. 
1988). 
With regard to the beneficiary's employment abroad, notwithstanding the foreign entity's more complex 
organizational hierarchy as illustrated in the organizational chart, the fact remains that the petitioner provided 
an overly vague job description that is grossly lacking in specific details as to the beneficiary's actwll job 
duties. An organizational chart alone does not serve as an adequate substitute for precise information about 
the beneficiary's employment or about the other· employees. and their respective roles in relieving the 
beneficiary from having to allocate his time primarily to the performance of non-qualifying tasks. 
Additionally, while the director conceded the beneficiary's directing the management of the petitioning 
organization,· directing the management of an organization is only one of the prongs of the four-part 
definition. Moreover, the denial indicates that the director was unclear as to whether the beneficiary was 
claimed to be employed in a managerial or in an executive capacity as the beneficiary's job descriptions 
contained elements of both statutory definitions. The director noted further that certain other job duties 
attributed to the beneficiary's positions did not fall within the parameters of either statutory definition. It is 
.clear that the director took time to assess the beneficiary's positions under each of the statutory definitionS 
despite the petitioner's initial claim indicating that the beneficiary .was employed abroad and would be 
employed in the United States in an executive capacity. 
The AAO finds that the petitioner failed to submit sufficient evidence 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. Based on these two independent conclusions, the instant petition cannot be approved. 
(b)(6)
Page6 
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.