dismissed EB-1C Case: Business Management

(b)(6)
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U.S . Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
u~s. Citi.Zenshi · 
.and ImnugraJbn. · 'Semces -. 
DATE: MAR 1 1 2013 OFFICE: NEBRASKA SERVI,CE CENTER FILE: 
INRE: 
PETITION : 
Petitioner: 
Beneficiary: 
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)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plea5e 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 instruciions 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)(1Xi) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
s:r~ .. ···· · -. < ~ 
1 ~on Ro~enberg · 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeai will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary in the United States as its 
president/CEO~ Accordingly, the petitioner endeavors to classifY the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(lXC) of the Immigration and Nationality Act (the Act), 8 U.S~C. 
§ 1153(b )(1 XC), as a multinational executive or manager. · · 
In support of the Form 1-140 the petitioner submitted a statement dated February 19, 2009, which contained 
relevant information pertaining to the petitioner's eligibility, including a job description of the beneficiary's 
proposed employment with the petitioning entity. The petitioner indicated that the beneficiary would be 
responsible for general administration of the company, market analysis, setting strategic goals and sales 
quotas, and managing the company's expenses. The petitioner also provided employer's quarterly reports 
naming three employees during the fourth quarter of 2008. 
The director reviewed the petitioner's submissions and determined that an approval was not warranted. The 
director therefore issued a request for evidence (RFE) dated August 24, 2009 informing the petitioner of 
various evidentiary deficiencies. Among the issues the director addressed was that of the beneficiary's 
proposed employment with the U.S. entity. Specifically, the director instructed the petitioner to provide a 
more detailed job description enumerating the beneficiary's tasks and the percentage of time the beneficiary 
planned to devote to each task. The director expressly asked the petitioner not to group tasks together, but 
rather to individually list each task and the task's time allotment. 
In response counsel provided a statement dated .September 30, 2009 in which he included a job description 
and percentage breakdown. The job description was accompanied by the petitioner's organizational chart, 
depicting the petitioner's three employees, and job descriptions of the two employees subordinate to the 
beneficiary. 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary would be employed with the U.S. entity in a qualifying managerial or executive capacity. The 
director therefore issued a decision dated March 5, 2010 denying the petition. 
On appeal, counsel provides a brief in which he asserts that the director erroneously relied on the petitioner's 
staffing size in making the decision regarding the petitioner's eligibility. Counsel urges the AAO to consider 
. the petitioner's reasonable needs and provides a restatement of the job description that was previously 
provided in response to the RFE. · 
The AAO has reviewed the record in its entirety and finds that counsel's assertions are not persuasive in 
overcoming the director's finding of ineligibility. The AAO will fully address the petitioner's eligibility and 
counsel's statements in the discussion below. 
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): 
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* * * 
(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 h;gal 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)(l)(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 10l(a)(44)(A) ofthe Act, 8 U.S.C. § 110.l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization iri 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 10l(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
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The tenn "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a maj~r component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercis~s 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. 
Turning to the primary issue at hand-the beneficiary's employment capacity in her proposed position with 
the U.S. entity-the AAO will first look to the petitioner's description of the beneficiary's proposed job 
duties. See 8 C.F.R. § 204.5(j)(5). While other factors are also considered, published case law supports the 
pivotal role of a detailed 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), a.ffd, 905 F.2d 41 (2d. 
Cir.1990); see also 8 C.F.R. § 204.50)(5). 
In the present matter, the AAO finds that the job description offered by counsel in his response to the RFE 
was vague and broadly focused on the beneficiary's discretionary authority and position within the 
petitioner's organizational hierarchy, rather than on providing a comprehensive list ofthe beneficiary's actual 
daily tasks. While the AAO certainly 
acknowledges that these factors are crucial for the purpose of 
establishing that the beneficiary occupies a position within a qualifying managerial or executive capacity, an 
affirmative detennination cannot be made in favor of the petitioner without a clearly defined job description 
that delineates the beneficiary's actual daily tasks, indicates how much time the beneficiary would allocate to 
each task, and establishes that the primary portion of the beneficiary's tiine would be spent perfonning 
qualifying tasks rather those that are administrative or operational in nature. 
For instance, stating that the beneficiary would plan, develop, and establish policies and objectives and ensure 
that such objectives are met reveals nothing about the beneficiary's actually daily activities and does little to · 
help the AAO gain a meaningful understanding of the beneficiary's role within the scope of the petitioner's 
business .operation. In fact, this infonnation is so, general that it can be applied to most any employee who 
occupies a top-level position within an organization, regardless of whether that individual spends the primary 
portion of his or her time perfonning tasks within a qualifying managerial or executive capacity. Although 
counsel also indicated that the beneficiary has the authority to hire and fire employees, based on the few 
changes that have occurred with respect to the petitioner's staffing since .2008, it appears that hiring and/or 
firing personnel is not a something that the beneficiary does on a daily, weekly, and even monthly basis. 
Similarly, the AAO is unclear as to the tasks involved in planning, directing, and coordinating marketing 
act~vities through the general manager. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the defmitions would 
simply be a matter of reiterating the regulations. !d. 
Additionally, the AAO finds that meeting with bank representatives, attorneys, and the company accountant 
are more akin to administrative tasks, which, while undoubtedly crucial for the successful function of the 
' . , 
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petitioner's business .operation, are not necessarily tasks ~hat fall within the definition of managerial or 
executive capacity. 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 are only incidental to the proposed position. An employee who "primarily" 
performs the tasks necessary to produce a pro~uct or to provide services is not considered ~o be "primarily" 
employed in a managerial or executive capacity; See sections IOI(a)(44)(A) and (B) ofthe 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). When the petitioner. provides vague 
statements that fail to focus on the specific tasks, as counsel has done in the present matter, the AAO cannot 
determine with any degree of certainty what the beneficiary would be doing or how much time .would .be 
allocated to qualifYing versus non-qualifYing tasks. 
Finally, while counsel objects to the director's reliance on the petitioner's staffmg as a means for gauging the 
beneficiary's managerial or executive employment capacity, the AAO finds that a company's small staffing· 
size is often an aecurate indicator of a petitioner that cannot support its beneficiary in a managerial or 
executive capacity because it is unable to relieve that beneficiary from having to allocate his or her time 
primarily to non-qualifying tasks. In other words, a small staff is often the product of necessity for an entity 
that has not progressed to a level of organizational complexity where a company's growth is reflected in its 
ability to relieve the beneficiary from having to primarily perform non-qualifYing job duties and instead 
assign those operational and/or administrative tasks to other in-house or contracted employees. 
While the AAO does not dispute that an entity with limited staffingmay also require·and be able to support an 
employee in a primarily managerial or executive capacity, any entity that files a Form 1-140 petition on behalf 
of a beneficiary must provide adequate supporting evidence in 'the form of a clearly defined job description 
along with a thorough explanation clarifying how the petitioner's daily operational and administrative tasks . 
will be executed without the beneficiary as their primary executor. As noted above, whenever a beneficiary's 
primary role involves the performance of tasks that are necessary to produce a product or to provide services 
that individual would not considered to be"primarily" employed in a managerial or executive capacity. Id. 
In light of the deficiencies discussed above, the AAO finds that the petitioner has failed to establish that it 
would employ the beneficiary in a primarily managerial or executive capacity and on the basis of this 
conclusion the instant petition cannot be approved. 
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.