dismissed EB-1C Case: Business Management

identitying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: SEP 28 2012 
INRE: 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 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Innnigrant 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. § I I 53(b)(l)(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. § \03.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § \03.5(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, 
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 entity that seeks to employ the beneficiary as its administrative manager, 
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. § IIS3(b)(l)(C), as a 
multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated October 14, 2009, which contained 
relevant information pertaining to the petitioner's eligibility, including an overview of the petitioner's 
business, the business of its foreign parent entity, and descriptions of the beneficiary's foreign and proposed 
employment. The petitioner also provided supporting evidence in the form of 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 January 26, 2010, instructing the petitioner 
to supplement the record with a more detailed job description pertaining to the beneficiary'S proposed 
employment. The petitioner was asked to list the beneficiary's proposed job duties and to indicate what 
percentage of time the beneficiary would spend performing each of the listed job duties. The petitioner was 
also instructed to provide its organizational chart accompanied by job titles, job descriptions, and educational 
levels of the beneficiary's subordinates. 
The petitioner provided a response, which included a list of the responsibilities that are assigned to the 
beneficiary in his capacity as functional manager of the petitioner and its U.S. parent corporation. The list 
was accompanied by a percentage breakdown of the beneficiary's job duties the beneficiary would be 
expected to perform for both entities. The job description did not distinguish between the beneficiary's roles 
and positions within the two separate entities and thus failed to indicate how much of the beneficiary's time 
would be allocated to the job duties the beneficiary would perform for the petitioning entity. 
After reviewing the record, the director concluded that the petitioner failed to establish that it would employ 
the beneficiary in a qualifying managerial or executive capacity. The director found that the petitioner lacked 
the organizational complexity to support the beneficiary in a primarily managerial or executive capacity and 
therefore issued a decision dated April 12, 20 II denying the petition. 
On appeal, counsel submits a brief in which he disputes the denial, contending that the beneficiary "serves 
only in an executive and managerial capacity" and provides another list of the beneficiary's proposed duties 
and responsibilities. Counsel states that the petitioner has five employees and three independent contractors 
providing it with various services. 
The AAO finds that counsel's arguments are not persuasive and fail to overcome 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: 
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(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)(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 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 his 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 JOl(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 III 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 
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(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 10 I (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. 
In examllllllg the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the beneficiary's job duties. See 8 C.F.R. § 204.5(j)(5). The AAO also finds that it 
is appropriate to consider other relevant factors, such as the petitioner's organizational hierarchy, which 
shows the complexity of a given entity and the beneficiary's placement in relation to other employees, as well 
as the petitioner's overall staffing, which allows the AAO to gauge the extent to which the petitioner is able to 
relieve the beneficiary from having to focus the primary portion of his time on the performance of non­
qualifying operational tasks. 
The petitioner offered a job description that did not effectively convey a meaningful understanding of the 
specific tasks the beneficiary would perform on a daily basis within the scope of the organizational hierarchy 
that the petitioner had in place at the time the petition was filed. 
In response to the RFE, the petitioner indicated that the beneficiary would be in charge of hiring, training, and 
supervising other managers and the staff in general, overseeing daily activities, holding weekly meetings, 
checking employees' weekly work plan, and monitoring the company. The petitioner assigned 50% of the 
beneficiary's time to this cumulative list of job responsibilities. The AAO finds, however, that these 
statements are vague and fail to identify specific tasks the beneficiary would perform and the amount of time 
he would allocate to each task. 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), ajfd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 
204.5(j)(5). In other words, a delineation of the beneficiary's daily tasks is required in order to ascertain the 
beneficiary's employment capacity. Thus, while it may be true that the beneficiary hires and trains 
employees, it is unlikely, given the petitioner's limited organizational hierarchy at the time of filing the 
petition, that the beneficiary would hire and train employees as part of his daily or even weekly routine. The 
record also does not support the claim that the beneficiary would spend a significant amount of his time 
Page 5 
supervising other managers, given that the petitioner's organizational chart at the time of filing identified only 
one managerial employee subordinate to the beneficiary. 
Next, the AAO finds that broadly stating that the beneficiary would oversee daily activities and monitor the 
company is insufficient to explain what specific tasks the beneficiary performs on a daily basis or how much 
time the beneficiary allocates to these unspecified tasks. 
The job description also lists several non-qualifying administrative tasks, including being responsible for the 
cash receipt journal, reporting financial problems to the company's president, and attending various 
promotional events. 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-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 oj Church 
Scientology International, 19 1&N Dec. 593, 604 (Comm. 1988). 
Given the deficient job description and the petitioner's limited support staff, the AAO cannot affirmatively 
conclude that the beneficiary would allocate his time primarily to the performance of qualifYing tasks within a 
managerial or executive capacity. Notwithstanding the beneficiary's discretionary authority and his top 
placement within the petitioner's organizational hierarchy, the AAO finds that the petitioner has failed to 
establish that the beneficiary would be employed in a qualifYing managerial or executive capacity. On the 
basis of tms conclusion, the petition cannot be approved. 
While not previously addressed in the director's decision, the AAO finds that the petitioner has failed to 
establish that the beneficiary meets the filing requirement specified at 8 C.F.R. § 204.5(j)(3)(i)(D), which 
states that the petitioner must establish 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 and/or services by a flrill, corporation, or other entity and does not include the 
mere presence of an agent or office. II 
Although the record includes a number of commercial invoices showing that the petitioner was doing business as 
of June 2009, the record lacks documentation to establish that it had been doing business as of November 2008, 
or one year prior to the filing of the instant petition. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter oj Soffici, 22 1&N 
Dec. 158, 165 (Comm. 1998) (citing Matter oj Treasure Craft oJCalifornia, 14 1&N Dec. 190 (Reg. Comm. 
1972)). 
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), afJ'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). Based on the additional ground of ineligibility discussed above, this petition 
cannot be approved. 
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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.