dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent clearly unwarranteu 
invasion of personal privacy 
PUBLIC COpy 
DATE: MAY 09 201l 
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 
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)(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. 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 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(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 
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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 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)(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 statement dated March 19, 2008, which included a 
description of the beneficiary's proposed employment as well as general information pertaining to the 
beneficiary's prior employment with the foreign entity. Additionally, the petitioner provided supporting 
evidence, including corporate, tax, and business documents pertaining to the U.S. and foreign entities. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated April 14, 2009 informing the 
petitioner of various evidentiary deficiencies. The director instructed the petitioner to provide evidence 
showing that it has a qualifying relationship with the beneficiary's foreign employer and that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity. 
The petitioner provided a response statement dated May 5, 2009 from its prior counsel. Counsel's response 
was accompanied by the petitioner's corporate filing documents as well as a number of employer's quarterly 
reports listing the petitioner's employees in 2007 and 2008. 
After reviewing the record, the director concluded that the petitioner failed to establish eligibility and 
therefore issued a decision dated January 25, 2010 denying the petition. The director determined that the 
beneficiary was not eligible for the immigrant classification because the petitioner failed to establish that: 
1) it has a qualifying relationship with the beneficiary's foreign employer; 2) it has been doing business in the 
United States; or 3) the beneficiary would be employed in the United States in a qualifying managerial or 
executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a statement along with supplemental 
documents in an effort to overcome the grounds for denial. 
With regard to the first conclusion concerning the petitioner's qualifying relationship with the beneficiary's 
foreign employer, the director erroneously focused on the petitioner's failure to provide a Securities and 
Exchange Commission Form 10K, which is irrelevant in the present matter, and seemingly made an 
unnecessary· reference to a regulatory requirement that pertains to partnerships that provide accounting 
services. As the petitioner's particular set of circumstances are such that do not call for the filing of a Form 
10K or meeting regulatory requirements that pertain to accounting partnerships, the AAO finds that the 
director's conclusion was not based on documentation that is relevant in establishing whether a qualifying 
relationship is present in the instant matter. In reviewing the petitioner's submissions, it appears that 
sufficient documentation was presented to establish the existence of the requisite qualifying relationship. 
Therefore, the AAO hereby withdraws the director's first adverse finding. 
Additionally, after reviewing the record in its entirety it is the AAO's fmding that sufficient documentation 
has been submitted to establish that the petitioner had been doing business for at least one year prior to filing 
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the instant petition and continued to do business beyond the date of filing. See 8 C.F.R. § 204.5G)(3)(i)(D). It 
appears that the director's adverse finding was primarily based on lease documents rather than evidence of 
purchase and sales, which the petitioner submitted in support of the Form 1-140. The AAO will therefore 
withdraw the director's second adverse finding as a basis for the denial. The remaining issue is the 
beneficiary's employment capacity in his proposed position with the U.S. entity. 
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 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)(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. 
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 10 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 
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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), ~rovides: 
The term "executive capacity" means an assignment within an organization III 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 examining the executive or managerial capacity of the benefIciary, USCIS will look fIrst to the petitioner's 
description of the proposed job duties. See 8 C.F.R. § 204.5(j)(5). Merely establishing that the benefIciary 
would have discretionary authority and an elevated position within the petitioner's organizational hierarchy is 
not suffIcient, as the benefIciary's 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). The 
AAO will then consider the given job description in light of the petitioner's organizational hierarchy, the 
beneficiary'S position therein, and that entity's overall ability to relieve the beneficiary from having to 
primarily perform its daily operational tasks. 
The job descriptions provided fail to establish that the beneficiary'S primary focus would be the performance 
of tasks within a qualifying managerial or executive capacity. In reviewing the job description that was 
provided in the March 19, 2008 statement, the AAO notes that 20% of the benefIciary's time was allocated to 
developing business proposals to capture business opportunities, develop business relationships with 
suppliers, distributors, and key accounts, communicate with clients, and pursue new business opportunities. 
While these responsibilities may be crucial for the petitioner's fInancial stability and success, they entail the 
performance of non-qualifying tasks, which contain sales and marketing components. The AAO further notes 
that while the beneficiary will be tasked with managing and supervising the petitioner's personnel, the 
organizational hierarchy that was in place at the time the petition was filed indicates that the petitioner's staff 
was comprised of only three employees other than the beneficiary and of those three employees only one held 
a position that could be deemed as either managerial or professional. See section 10 1 (a)(44)(A)(ii) of the Act. 
Page 5 
Additionally, while the remainder of the job description conveys certain managerial aspects, such as 
formulating and implementing strategies, managing company policies, evaluating the company's 
performance, achieving financial objectives, and developing goals and strategies, these statements are overly 
vague and fail to convey a meaningful understanding of the specific underlying tasks that the beneficiary 
would actually undertake in meeting these broad business objectives. The AAO cannot conclude that the 
beneficiary will primarily perform qualifying managerial- or executive-level tasks simply because he will 
have discretionary authority and will assume an elevated position within the petitioner's organizational 
hierarchy. 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 proposed daily job duties. 
8 C.F.R. § 204.5(j)(5). 
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 would only be 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). As the record in the present matter does not delineate 
the beneficiary's proposed job duties with sufficient specificity, the AAO cannot affirmatively conclude that 
the primary portion of the beneficiary's time would be allocated to tasks within a qualifying managerial or 
executive capacity. 
Additionally, the AAO notes that counsel's reference on appeal to the petitioner's recent expansion of its 
business into jewelry and watches is irrelevant for the purpose of determining whether the petitioner was 
eligible for this immigration benefit at the time of filing the petition. 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 I&N Dec. 45, 49 (Comm. 1971). As noted above, 
the record in the present matter does not establish that the petitioner was ready to employ the beneficiary in a 
primarily managerial or executive capacity at the time the petition was filed and on the basis of this 
conclusion, the instant petition cannot be approved. 
Lastly, while not previously addressed in the director's decision, the AAO finds that the record lacks 
sufficient evidence to establish that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity as required by 8 C.F.R. § 204.5(j)(3)(i)(B). Although the petitioner's original support 
statement indicates that the beneficiary was employed abroad in the position of senior manager and was 
responsible for establishing policies and objectives, hiring and firing of company staff, and entering into 
contracts, this information fails to identify the beneficiary's specific daily tasks and thus is not sufficient to 
allow for the conclusion that the beneficiary was employed abroad in a qualifying capacity. 
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 (B.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
. . •• 
Page 6 
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.