dismissed EB-1C Case: Business Management

(b)(6)
DATE: FEB 1 1 2013 OFFICE: NEBRASKA ,SERVICE CENT,ER 
INRE : Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusells 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)( I )(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)( I )(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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 nny 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, 
www.uscis.gov 
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DISCUSSION: The preference visa pet1t1on 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 is a California 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)(l )(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated December 21, 20 I 0, which contained 
relevant information pertaining to the beneficiary's eligibility. The petitioner indicated that in his proposed 
position with the U.S. entity, the beneficiary would maintain professional relationships, oversee the 
petitioner's operational development, and have decision-making authority over all operational, administrative, 
and personnel matters. The petitioner stated that it is reasonable to require the services of an executive to 
run the U.S. entity at this stage of its development. The petitioner urged the director to refrain from focusing 
on the actual number of employees when deciding the matter of the beneficiary's eligibility . 
The director reviewed the petitioner's submissions and determined that an approval was not warranted . The 
director therefore issued a request for evidence (RFE) dated August II, 20 II informing the petitioner of 
various evidentiary deficiencies. Among the issues the director addressed was that of the beneficiary"s 
proposed employment with the U.S . entity. Specifically, the director instructed the petitioner to provide a 
detailed organizational chart illustrating its company staffing at the time the petition was filed. The director 
also instructed the petitioner to provide a list of the beneficiary's proposed job duties supplemented by the 
percentage of time the beneficiary would allocate to each of the listed tasks. 
In response the petitioner provided a description of the beneficiary's typical day of work accompanied by an 
hourly/percer:~tage breakdown briefly discussing the various components of the proposed position . The 
petitioner did not, however, comply with the request for a submission of an organizational chart. Rather, the 
petitioner explained that in light of the denial of the petitioner's L-JA nonimmigrant petition, the beneficiary 
did not have work authorization and thus could not be employed in the United States nor could he employ 
) others to work within the petitioning organization. The petitioner further stated that "the employee's [sicl 
activities were temporarily suspended, pending receipt of permission by [the] Beneficiary to work [in the 
United States]." 
After considering the evidence submitted into the record, 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 therefore issued a decision dated December 22, 2011 denying the petition. 
On appeal, the beneficiary, on behalf of the petitioner, provides a brief in which he challenges the director's 
decision, asserting that the director placed undue emphasis on the petitioner's lack of a support staff and that 
this factor should not serve to disqualify the beneficiary from the immigrant classification sought herein . The 
beneficiary further contends that the director failed to consider the proposed position as that of a function 
manager, which does not call for managing subordinate personnel. Finally, the beneficiary states that in order 
for the petitioner to meet new challenges it is reasonable for it to employ a top-level manager or executive at 
· its current stage of development. 
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The AAO has reviewed the record in its entirety and finds that the beneficiary's assertions are not persuasive 
in overcoming the director's finding of ineligibility. The AAO will fully address the petitioner's eligibility 
and the assertions made on appeal in the discussion below. 
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 1s 
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 i~ the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien . 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § ll0l(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, funct ioi1, 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 
auth6rity to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
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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 executive s, 
the board of directors, or stockholders of the organization . 
As noted above, the primary issue at hand is the beneficiary's employment capacity in his proposed position 
with the U.S. entity. In order to determine whether the beneficiary would be employed in a qualifying 
managerial or executive capacity the AAO will first look to the petitioner's description of the beneficiary's 
proposed job duties . See 8 C.F.R. § 204.5U)(5). It is noted that 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 appropriate and often necessary to consider other 
relevant factors , including the petitioner's organizational hierarchy and its staffing ·, as these factors are 
accurate indicators of a company ' s ability to relieve the beneficiary from having to focus his time primarily 
on the performance of non-qualifying operational tasks . 
. Turning first to the beneficiary's job description, the AAO finds that the information provided in response to 
the RFE does not establish that the beneficiary would allocate his time primarily to the performance of 
qualifying managerial- or executive-level tasks. The job description indicates that the beneficiary' ·s proposed 
employment would involve meeting with customers, carrying out a wide· variety of office administrative 
tasks, and addressing the ·logistics of allotments and shipment. 
While the AAO acknowledges that 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 proposed position. An employee who "primarily" performs the tasks 
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necessary to produce a product or to provide services is not considered to be "primarily" employed 111 a 
managerial or executive capacity. See sections IOI(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter c~l Church Sc:i'enwlogy 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In light of the above, the AAO finds that the director properly focused on the petitioner's st;(tTing and 
organizational hierarchy when assessing the beneficiary's employment capacity. In the present matter, where 
the petitioner claimed that approximately 30% of the beneficiary's time would be spent meeting with various 
staff members regarding sales, credit, and accounting issues, it is particularly crucial for the petitioner to 
provide supporting evidence to establish that the staff referenced in the job description was actually part of 
the petitioner's organizational hierarchy at the time the petition was filed. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Crafi (~( 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Here, not only is there no supporting evidence of an in­
house staff or contracted employees at the time of filing, but the beneficiary, in his statement submitted on 
appeal, actively states that the petitioner does not currently employ anyone, including the beneficiary himself, 
due to circumstances concerning the beneficiary's immigration status. 
Although the beneficiary asserts on appeal that the director failed to consider the possibility that the proposed 
position was that of a function manager, this ~ssertion appears to be premised on the fact that there is no 
evidence of a subordinate support staff for the beneficiary to oversee. The beneficiary properly ascertains that 
the term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section l01(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). However, the mere fact 
that the petitioner does not employ a support staff for the beneficiary to manage is not sufficient to establish 
that the proposed position would be in the role of a function manager. 
Whenever a petitioner raises the claim of function manager, that petitioner must identify the essential function 
with specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential fu.nction. 8 C.F.R. § 204.5(j)(5) . In addition, the petitioner's 
description of the beneficia.ry's daily duties must demonstrate that the beneficiary manages the function rather 
than performs tpe duties related to the function. As previously noted, an employee who primarily performs 
the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. See sections l0l(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Sc::ientologv 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In the present matter, the information that the petitioner has provided indicates that the company has 
regressed to an earlier stage of development and is unable to progress beyond that stage given the 
beneficiary's lack of employment authorization. Given these circumstances, where the petitioner had no 
support staff at the time of filing to relieve the beneficiary from having to primarily perform the necessary 
operational tasks, it is unreasonable and factually improbable that the petitioner was able to support the 
beneficiary in a managerial or executive capacity where the primary portion of his time would have been 
allocated to qualifying tasks. While the AAO does not dispute that the petitioning entity requires an 
individual to assume a leadership position and guide the petitioner'_s business operations, the petitioner's 
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actual stage of development and lack of organizational compiexity would preclude the beneficiary's proposed 
position from focusing primarily on the performance of qualifying managerial- or executive-level tasks. 
Therefore, based on the facts and evidence presented herein, the AAO finds that the beneficiary wou.ld not be 
employed in a primarily managerial or executive capacity and ·on the basis of this conclusion the instant 
petition cannot be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
1 petitioner. Section 291 of the Act, 8 U .S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.