dismissed EB-1C Case: Business Management

DATE: 
OCT 2 62D12 
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 )(1 )(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(I )(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 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 Florida limited liability company 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)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 11S3(b)(1)(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated April 2, 2010, which contained 
relevant information pertaining to the beneficiary's proposed employment. Counsel for the petitioner 
provided a separate statement, dated May 18, 2010, in which in which he discussed the foreign entity where 
the beneficiary was previously employed and provided an overview of the petitioner's business and 
ownership scheme. The petitioner also provided supporting evidence in the form of financial and corporate 
documents pertaining to the petitioner and the foreign entity. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence dated July 7, 2011 informing the petitioner of various 
evidentiary deficiencies. Among other issues of eligibility, the director addressed the beneficiary'S proposed 
employment, instructing the petitioner to provide a detailed job description delineating the beneficiary'S 
specific job duties and the percentage of time she would allocate to each item on the list. The petitioner was 
also asked to provide its payroll summary, IRS Form W -2 statements, IRS Form 1099s, and any other 
evidence of compensation the petitioner paid in 2010. 
The petitioner provided a response, which included IRS Form 941 for all four quarters in 2010. The second 
quarter Form 941 shows that the petitioner had a total of three employees when the Form 1-140 was filed. 
This information is further reiterated in the petitioner's payroll summary, which shows that the petitioner 
employed a store clerk, one general manager, and one administrative assistant at the time of filing. 
With regard to the request for an additional job description, the AAO notes that while the petitioner provided 
a statement listing the beneficiary's proposed job responsibilities, the new statement was nearly identical to 
the April 2, 2010 statement, which the petitioner originally submitted in support of the Form 1-140. The 
petitioner did not provide any additional information or add any time constraints to the job description, thus 
effectively failing to comply with the director's express request. 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). 
After reviewing the record, 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 properly pointed 
to the petitioner's failure to comply with the RFE, which called for a delineation of the beneficiary'S specific 
job duties and their respective time allocations, and further found that that the petitioner submitted an overly 
broad job description, which was not sufficient to determine what specific tasks the beneficiary would 
perform on a daily basis. Noting these significant deficiencies, the director issued a decision dated August 30, 
2011 denying the petition. 
On appeal, counsel submits a brief in which he disputes the denial, contending that the beneficiary's 
experience abroad as general manager of the foreign entity is an adequate indicator of her ability to assume a 
Page 3 
managerial or executive position with the U.S. entity. Counsel also asserts that despite the petitioner's small 
staff, the beneficiary would nevertheless be employed in a managerial or executive capacity. 
The AAO finds that counsel's assertions are not persuasive and fail to overcome the basis for the director's 
denial. The discussion below will provide an analysis of the relevant documentation and will explain the 
underlying reasoning for the AAO's decision. 
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 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. 
The primary issue to be addressed in this proceeding is the beneficiary's employment capacity in the 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 101 (a)(44)(A) of the Act, 8 U.S.C. § 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assigmnent within an organization III which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
Page 4 
(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 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. § 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 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. 
As pointed out in the director's decision, a detailed job description is essential when examining the executive 
or managerial capacity of a given position. See 8 C.F.R. § 204.5(j)(5). Published case law supports the 
pivotal role of a clearly defIned 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), ajj'd, 905 F.2d 41 (2d. 
Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). Additionally, the AAO fInds that it is appropriate to consider 
other relevant factors, such as the level of complexity of the petitioner's organizational hierarchy and the 
petitioner's overall staffIng, which allow the AAO to gauge the extent to which the petitioner is able to relieve 
the benefIciary from having to focus the primary portion of her time on the performance of non-qualifying 
operational tasks. 
The AAO fInds that neither the job description provided nor the petitioner's organizational hierarchy 
establishes that the benefIciary would be employed in a qualifying managerial or executive capacity. 
Turning fIrst to the job description provided, the AAO reiterates the petitioner's failure to comply with 
express RFE instructions, the goal of which was to elicit information that would allow the director to gain a 
meaningful understanding of the specifIc tasks that would occupy the primary portion of the benefIciary's 
Page 5 
time within the scope of the petitioner's gas station/convenience store operation. The AAO finds that 
counsel's reliance on the beneficiary's position with the foreign entity as an adequate indicator of the 
beneficiary's employment capacity in her proposed position with the U.S. entity was misplaced. In his 
reliance on the beneficiary's employment abroad, counsel failed to consider the significant differences in the 
nature of the business conducted by the two entities and the different organizational hierarchies involved. 
These elements can and should be factored into the current analysis, as there is a vast difference between 
functioning at the top of a 22-person organization with multiple managerial tiers and departments and an 
organization that operates a three-person gas station/convenience store operation. There is no indication that 
counsel took these factors into consideration. 
Moreover, counsel failed to explain the petitioner's oversight in providing the same deficient job description 
in its RFE response as it did in the original job description, which the director had already deemed to be 
deficient as evidenced by his request for a new job description. While the AAO does not dispute the 
beneficiary's high degree of discretionary authority in making the petitioner's decisions and setting its goals 
and policies, these general statements do not explain what specific activities the beneficiary would undertake 
on a daily basis. The mere fact that the beneficiary would be placed at the top of an organizational hierarchy 
within a small business operation does not establish that the primary portion of her time would be allocated to 
tasks of a managerial or executive nature. 
The AAO also questions the reliability of the beneficiary's list of job responsibilities, which indicates that the 
beneficiary would oversee activities that deal with the provision of services to company customers, plan the 
use of materials, determine staffing requirements, and decide on the goods and services to be sold. In light of 
the nature of the business being conducted by the petitioning entity, it is unclear what "company customers" 
can exist in the scope of a gas station/convenience store and the petitioner has not explained the need for the 
beneficiary to plan the use of materials or determine staffing requirements in an operation whose staffing has 
ranged between 3-5 people over the span of many years, or how much input the beneficiary can expect to 
have as to the types of goods and services to be sold given that the petitioner is currently operating a specific 
type of retail business. The petitioner has failed to provide the specific information necessary to support the 
assertions made in the job description. 
Next, looking at the petitioner's organizational hierarchy, which consisted of three employees at the time the 
petition was filed, it is unclear how the petitioner can expect to relieve the beneficiary from having to allocate 
her time primarily to either performing the daily operational and administrative tasks of the business or to 
overseeing the work of non-professional employees. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffiei, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft ()f California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
In summary, the AAO finds that the petItlOner failed to demonstrate that it has reached a level of 
organizational complexity wherein the hiring/firing of personnel, discretionary decision-making, and setting 
company goals and policies would constitute significant components of the duties to be performed on a day­
to-day basis. The AAO further finds that the petitioner has failed to establish that the beneficiary would 
primarily manage an essential function of the organization or that she would primarily supervise a subordinate 
staff of professional, managerial, or supervisory personnel who relieve her from performing non-qualifying 
duties. Based on the evidence furnished, it cannot be found that the beneficiary would be employed in a 
primarily managerial or executive capacity. Therefore, this petition cannot be approved. 
, , 
Page 6 
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.