dismissed EB-1C Case: Business Operations

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identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBUCCOPY 
DATE: JUl 0 2 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: NEBRASKA SERVICE CENTER 
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' § 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. § 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, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation that seeks to employ the beneficiary as its president and head of 
operations. 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)(l)(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a supporting statement containing relevant information 
regarding the petitioner's eligibility, including overviews of the petitioner's and the foreign parent entity's 
respective businesses and descriptions of the beneficiary's foreign and proposed employment. The petitioner 
also provided supporting evidence in the form of payroll reports, bank statements, and a business lease. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated January 8, 2009 informing the 
petitioner of various evidentiary deficiencies, including insufficient evidence establishing that the beneficiary 
would be employed in the United States in a qualifYing managerial or executive capacity. The director 
therefore instructed the petitioner to provide a list of the beneficiary's proposed job duties and to assign a time 
constraint to each item on the list indicating what percentage of time the beneficiary would allocate to each of 
his proposed job duties. The director also instructed the petitioner to provide a detailed organizational chart 
depicting the beneficiary's proposed position as well as the names of all the departments and teams that are 
part of the organizational hierarchy. The petitioner was asked to include names, educational levels, and 
detailed job descriptions for the employees who are the beneficiary's direct subordinates as well as those to 
whom the beneficiary may be subordinate. 
The petitioner responded to the RFE by providing the requested documents. The beneficiary's job description 
was supplemented with the requested time constraints and the petitioner's organizational chart depicting an 
entity with employees in the United States and India. The chart shows that five employees are located in the 
United States with a more extensive staffing structure in India. 
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 issued a 
decision dated March 23, 2009 denying the petition. 
On appeal, counsel objects to the director's reliance on the beneficiary'S salary as an indicator of his 
employment capacity and disagrees with the director's interpretation of the organizational charts previously 
submitted. Counsel asserts that the beneficiary assumed the role of both a manager and an executive in the 
petitioner's early stages of development. Counsel states that the bulk of the petitioner's operations are in 
India and urges the AAO to consider the petitioner's reasonable needs in light of its overall stage of 
development. He asserts that the beneficiary's subordinate employees are degreed professionals. 
Although the AAO acknowledges that the director erroneously considered the beneficiary'S proffered wage 
and did not discuss the petitioner's organizational hierarchy with sufficient clarity, the director adequately 
conveyed key points that led to the adverse decision, i.e., that the petitioner provided a deficient job 
description for the proposed position and that the petitioner's organizational hierarchy did not attain a level of 
complexity wherein the petitioner would have the ability to relieve the beneficiary from having to allocate the 
Page 3 
primary portion of his time to the performance of non-qualifYing tasks. The AAO finds that counsel's 
arguments are not persuasive and fail to establish that a favorable decision was warranted based on the facts 
and circumstances that existed at the time the Form 1-140 was filed. 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: 
(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 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)(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 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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; 
Page 4 
(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 tenn "executive capacity" means an assignment within an organization in 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 exammmg 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). Published case law clearly 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), afJ'd, 905 F.2d 41 (2d. 
Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). 
The petitioner provided a defIcient job description, which is comprised in large part of vague statements that 
fail to clarify the benefIciary's specifIc daily tasks within the scope of the petitioner's business organization. 
For example, the petitioner indicated that 20% of the benefIciary'S time would be spent developing and 
growing the U.S. business; 15% would be spent developing and implementing a strategic plan aimed at 
company growth and increased profItability; 10% would be spent setting goals and objectives; and 10% 
would be spent engaging in strategic plarming, management, and technology development. Merely relying on 
broad tenninology and the benefIciary's elevated role within the petitioning entity is not suffIcient to convey a 
meaningful understanding of what specifIc tasks the benefIciary would perfonn on a daily basis in order to 
meet the general responsibilities of the proposed position. 
The AAO fInds that it is appropriate and often necessary 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 
Page 5 
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. 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. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th 
Cir. 2006) (citing with approval Republic ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. 
Co. v. Sava, 905 F.2d at 42; Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003). 
A considerable portion of the beneficiary'S time would be allocated to overseeing the work of employees and 
performing non-qualifying operational tasks, including developing client relationships, negotiating contracts, 
recruiting staff for the U.S. office, and understanding client requirements and fmding solutions. With regard 
to the personnel management portion of the beneficiary's proposed position, the AAO finds that the petitioner 
failed to provide sufficient evidence to establish that the managerial personnel the beneficiary would 
purportedly oversee are actual employees of the petitioning entity. To clarify, the petitioner's organizational 
chart shows that the petitioner's U.S. staff is comprised of a chairman, the beneficiary in the position of 
president and CEO, an executive vice president, a director of corporate education, and an executive assistant. 
The chart indicates that the remainder (and primary portion) of the support staff is located in India. The chart 
shows that the support staff is comprised of business developers, project managers, account executives, and 
the software development employees who actually carry out the operational tasks to meet the requirements of 
client contracts. The record contains no evidence, other than the petitioner's own representations, to 
corroborate the existence of the staff that the petitioner purportedly employs overseas. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
While the AAO takes note of counsel's references to the petitioner's reasonable needs and early stages of 
development, merely showing that a limited support staff meets the petitioner's reasonable needs is not 
sufficient, unless the petitioner can establish that the documented support staff the petitioner had in place at 
the time the petition was filed would be sufficient to relieve the beneficiary from having to allocate the 
primary portion of his time to the performance of non-qualifying tasks. The petitioner's reasonable needs do 
not serve to override the petitioner's legal burden of having to establish that the beneficiary would primarily 
perform duties of a qualifying managerial or executive nature. Therefore, any petitioner whose reasonable 
needs are met by having the beneficiary allocate his time primarily to the performance of non-qualifying tasks 
cannot be deemed to employ the beneficiary in a qualifying managerial or executive capacity. 
In summary, the petitioner has failed to clarify the beneficiary'S actual daily job duties and it has failed to 
provide adequate documentation to establish that its organizational hierarchy 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 tasks. In light of these deficiencies, the AAO finds that the 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.