dismissed EB-1C Case: Business Management

DATE: DEC 0 5 2012 
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)(I)(C) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(l)(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.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1 lei) 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 
",·ww.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 Delaware corporation that seeks to employ the beneficiary in the United States as its 
"country head and CEO." 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. § 11 53(b)(1 )(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated January 11, 2011, which contained 
relevant information pertaining, in part, to the beneficiary's employment abroad and with the petitioning 
entity. The petitioner also provided evidence in the form of corporate, business, and financial documents 
pertaining to both entities. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) dated August 22, 2011 informing the petitioner of 
various evidentiary deficiencies. The RFE included requests for a more detailed job description pertaining to 
the beneficiary's proposed employment with a list of the beneficiary's job duties and their time allocations, 
the petitioner's organizational chart depicting the company's staffing structure, and wage records 
demonstrating the petitioner's ability to pay the beneficiary's proffered wage. 
The petitioner complied with the director's request supplementing the record with additional documentation. 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary's employment with the U.S. entity has been and would be within a qualifying managerial or 
executive capacity. Rather than focusing on the sufficiency of the job description and evidence of the 
petitioner's organizational composition, the director's supporting analysis appears to have been primarily 
based on the beneficiary's partial indirect ownership of the petitioner by virtue of his direct ownership of 50% 
of the foreign parent entity. The director also determined that the petitioner failed to establish its ability to 
pay the beneficiary's proffered wage. In support of this statement, the director considered the beneficiary's 
20 I 0 and 2009 wage information, which the director determined to be far below the proffered wage of 
$40,000 per year. 
While the AAO concurs with the director's adverse findings with regard to the beneficiary's employment 
capacity in his proposed position with the U.S. entity, the underlying analysis that led the director to issue 
those findings was Hawed. Therefore, the discussion below will provide a new analysis of the factors that are 
relevant to the matter at hand. 
With regard to the director's second adverse conclusion-that the petitioner failed to establish the ability to 
pay the beneficiary's proffered wage-the record shows that the beneficiary was compensated a monthly 
salary of $3305.44, which is approximately $40,000 annually. If the petitioner establishes by documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this evidence will 
be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. AAO finds that the 
petitioner submitted prima facie proof of its ability to pay and the director's second ground for denial will 
therefore be withdrawn. 
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 fum 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 flle 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. 
Turning to the primary issue in this proceeding-the beneficiary's employment capacity in his proposed 
employment with the petitioner-the AAO will examine the record to determine whether the record contains 
sufficient evidence to establish that the beneficiary's U.S. employment would be in a qualifying managerial or 
executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.s.c. § 1 101 (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 
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 ofthe 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. § I 101 (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 ITom higher level executives, 
the board of directors, or stockholders of the organization. 
In exammmg the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the beneficiary's proposed job duties. See 8 C.F.R. § 204.50)(5). Published case 
law supports the pivotal role of a clearly defined job description, deeming the actual duties themselves as the 
factors that determine the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), afJ'd, 905 F.2d 41 (2d. Cir. 1990). Additionally, the AAO finds that it is appropriate 
to consider other relevant factors, including the petitioner's organizational hierarchy and overall staffing, 
which establish who would actually perform the daily non-qualifying tasks. 
The AAO finds that the job description provided by the petitioner in its RFE response is overly broad and 
fails to specify the job duties the beneficiary would perform during the primary portions of the beneficiary's 
time. For instance, the petitioner stated that 20% of the beneficiary's time would be allocated to heading the 
organization by making business decisions, including the scope of the business, the size of the business 
investment, and the types of products and services the business would offer. While such discretionary 
decision-making is certainly within the scope of a managerial or executive position, this information says 
little of the actual tasks the beneficiary would perform for 20% of the time. Furthermore, the AAO points out 
that the petitioner listed numerous discretionary decisions throughout the job description, including approving 
purchase and sales contracts with buyers and suppliers, approving tinancial documents, approving budgets for 
business and marketing plans, making hiring and tiring decisions, deciding which assets and real properties to 
purchase, and determining which independent contractors to use and the terms of their employment. These 
items, which account for 29% of the beneficiary's time, fall within the category of discretionary decisions. 
The petitioner did not explain what additional decisions the beneficiary would make that don't fall within the 
categories specifically listed in the job description. 
Page 5 
The petitioner further stated that another 20% of the beneficiary's time would be allocated to establishing 
organizational policies, procedures, and goals with regard to sales and purchases. Again, this statement is 
overly broad and fails to identify the specific tasks that fall within this responsibility. 
Looking to the petitioner's organizational hierarchy, the AAO finds that the record lacks sufficient evidence 
to establish that the petitioner's staffmg composition at the time of filing the petition was sufficient to relieve 
the beneficiary from having to allocate his time primarily to the performance of non-qualifying operational 
tasks. While the petitioner has provided job descriptions for its staff members, it is unclear who sells the 
petitioner's products and services and who is charged with providing financial statements and filling out the 
petitioner's tax returns, as no one employee was assigned these operational tasks. 
While the AAO acknowledges that no beneficiary is reqnired 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 
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 record as presently constituted does not establish 
that the petitioner was prepared to employ the beneficiary in a primarily managerial or executive capacity at 
the time the petition was filed. Therefore, the instant petition cannot be approved. 
While not previously addressed in the director's decision, the record contains inconsistent evidence with 
regard to the petitioner's ownership. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The petitioner submitted a certificate of incorporation showing that it was established as a corporate entity on 
May 29, 2009. However, the petitioner issued certificate no. 1 on May 2, 2009, thus indicating that it issued 
shares of an entity that did not exist until approximately four weeks later. 
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 
ofthis visa classification. Matter a/Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Assoc. Comm. 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 and authority to direct the establishment, management, and operations of an entity. 
Matter of Church Scientology International, 19 I&N Dec. at 595. 
The factual scenario that is presented by the documentation in the record indicates that stock certificate no. I 
is not valid. The evidence on record does not resolve this significant factual inconsistency, which directly 
affects the material issue of the petitioner's ownership, which is a key factor in determining the petitioner's 
qualifying relationship with the foreib'll entity. 
Page 6 
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 b'founds 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. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO reviews 
appeals on a de novo basis). 
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.