dismissed EB-1C Case: Business Management

identifYing ,iqta deleted to 
prevent Clt~".i~mvarranted 
invasion of personal privacy 
PVBUCCOpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
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, § I [53(b)(I)(C) 
ON BEHALF OF PETlTlONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appea[s 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 [-290B, Notice of Appeal or Motion, 
with a fee of $630, Please be aware that 8 C,FK § 103's(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, 
Perry Rhew 
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 Texas corporation that seeks to employ the beneficiary as its president. 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. § IIS3(b)(1 )(C), as a multinational 
executive or manager. 
The director denied the petition based on the determination that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's decision and contends that the director failed to request evidence 
regarding the beneficiary's supervisory, professional, or managerial employees. 
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 ofthat 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)(J)(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 in this proceeding is 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 JOI(a)(44)(A) of the Act, 8 U.S.C. § I 10 I (a)(44)(A), provides: 
Page 3 
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 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 IOJ(a)(44)(B) of the Act, 8 U.S.C. § J 10 I (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 executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated November 3,2008 in which the proposed 
position was described as follows: 
[The beneficiary] is responsible in [sic] determining and formulating policies; providing the 
overall direction of the company within the guidelines set up by a governing body; planning, 
directing or coordinating operational activities at the highest level of management; 
communicating with KTC abroad to update business progress and make decisions; making 
decisions in human resources; keeping and supporting business relations with customers in 
the U.S. 
Page 4 
On May 5, 2009, the director issued a notice of his intent to deny the petition (NOlO), informing the 
petitioner of various deficiencies, including the petitioner's failure to provide sufficient information about the 
proposed position to establish that the beneficiary would be employed in a managerial or executive capacity. 
In response, the petitioner provided a statement dated May 26,2009, which reiterated the job description that 
was originally provided in the petitioner's initial support statement. No further information was provided to 
supplement U.S. Citizenship and Immigration Services' (USCIS) understanding of the proposed employment. 
On June 12,2009, the director issued a decision denying the petition. The director pointed out that only one 
employee was claimed in the petitioner's Form 1-140 and determined that the petitioner's staff of one 
employee at the time of filing would be insufficient to relieve the beneficiary from having to primarily 
perform non-qualitying tasks. 
On appeal, counsel contends that the director did not previously address the issue of a support staff and asks 
the AAO to review the petitioner's newly submitted tax documents for 2008, which show that the petitioner 
employed a total of two employees at the time of filing. Counsel also restates the previously provided 
description of the beneficiary's proposed employment, claiming that the beneficiary's job duties fall under the 
definition of executive capacity. Counsel assures the AAO that the petitioner plans to hire more professional 
employees in the future. 
The AAO finds that counsel's statements are not persuasive in overcoming the director's decision. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner'S description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will then assess this 
information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, and the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily operational 
tasks. [n the present matter, the record lacks a comprehensive description of the beneficiary's day-to-day 
tasks and does not adequately establish that a support staff was available to perform the petitioner's daily 
operational tasks such that the beneficiary would be able to primarily focus on the performance of managerial 
or executive duties. 
Despite the petitioner's submission of evidence which shows that the beneficiary was not its sole employee at 
the time of filing, the petitioner has failed to explain how an entity, which is comprised of only two 
employees, including the beneficiary, requires the services of someone who will primarily perform 
managerial- or executive-level tasks and is successfully able to relieve the beneficiary from having to 
primarily perform daily operational tasks. While the AAO acknowledges that no beneficiary is required to 
allocate 100% of his time to managerial- or executive-level tasks, the petitioner must establish that the non­
qualitying tasks the beneficiary would perform are only incidental to his/her 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 10 1 (a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matler of 
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Counsel's assertion that the beneficiary's job duties fall under the definition of executive capacity is simply 
unsupported by the documentation submitted. Counsel seemingly equates the beneficiary'S position within 
the petitioner's organization and the discretionary authority that inevitably accompanies this position with an 
executive posItIon. However, the statutory provisions require more of the beneficiary's position than merely 
exercising discretionary authority and serving as head of a two-person operation. The statute clearly states 
that in order to merit classification as a multinational manager or executive, the beneficiary must allocate the 
primary portion of his time to tasks of a qualifying nature. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family, Inc. v. Us. Citizenship and Immigration 
Services, 469 FJd 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 
175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (DD.C. 2003). Although a small support staff alone is not a 
dispositive factor, the petitioner maintains the burden of establishing that it is eligible for the benefit sought. 
As such, it is the petitioner's burden to explain and provide supporting evidence to establish how the 
petitioner's organization at the time of filing was capable of employing the beneficiary in a qualifying 
managerial or executive capacity. 
Although counsel asserts that the petitioner plans to hire additional personnel in accordance with its 2009 
business plan, 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). In the meantime, the fact that the beneficiary manages a small business 
does not necessarily establish eligibility for classification as a multinational manager or executive under 
section 203(b)(I)(C) of the Act. As previously stated, in order to determine the beneficiary's employment 
capacity in his proposed position, the petitioner must establish that the primary portion of the beneficiary's 
time would be allocated to tasks within a qualifying capacity. See sections 10 1 (a)(44)(A) and (B) of the Act. 
In making this determination, the AAO considers both the job description and the organizational hierarchy of 
the organization where the beneficiary will be employed. Here, neither the job description nor the petitioner's 
organizational composition establishes that the beneficiary would primarily carry out job duties within a 
qualifying managerial or executive capacity. As such USCIS cannot approve the instant petition. 
Additionally, while not previously addressed in the director's decision, the AAO finds that the petitioner 
failed to submit sufficient evidence to establish that it meets the provisions cited at 8 C.F.R. § 
204.5G)(3)(i)(D), which requires the petitioner to provide evidence establishing that it has been doing 
business for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. § 204.5(j)(2) states that 
doing business means "the regular, systematic, and continuous provision of goods andlor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." While the AAO 
acknowledges the petitioner's submission of its tax, bank, and corporate documents, all of which are sufficient to 
document the petitioner's corporate existence, none of these documents can be deemed as evidence of the 
petitioner's regular, systematic, and continuous provision of goods and/or services. Id. 
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 (E.D. Cal. 2001), affd, 345 FJd 683 
(9th Cir. 2003); see also Softane v. DOJ, 381 FJd 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.