dismissed EB-1C Case: Business/Trade

Identifying data deleted to 
prevent ch:ari} 11lWarranted 
invasion of personal pnvacy 
DATE: NOV 1 0 2011 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. § 1153(b)(1)(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. 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 I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
""1' " 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscls.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 _corporation that seeks to employ the beneficiary as its "president/CEO." 
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. § 1153(b)(I)(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 asserts that the beneficiary has the qualifications required for the proffered position and 
asks the AAO to reconsider the denial of the petitioner's Fonn 1-129. The AAO notes that the petition that is 
being considered in the present matter is a Form 1-140, which is an immigrant petition, not a Fonn 1-129, 
which is a nonimmigrant petition. As counsel cited the filing receipt number that corresponds to the Fonn 1-
140 that is currently being adjudicated, it appears that his reference to the Fonn 1-129 was an inadvertent error 
and need not be addressed beyond this point. Counsel's appellate brief and all relevant submissions will be 
addressed in the discussion below. 
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 finn, 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 Fonn 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 perfonned by the alien. 
-Page 3 
The primary issue that will be addressed in this proceeding is whether the petitioner submitted sufficient 
evidence to establish that the beneficiary would be employed in the United States in a qualifying managerial 
or executive capacity. 
Section 10 I (a)(44)(A) of the Act, 8 U.S.c. § IIOI(a)(44)(A), provides: 
The tenn "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component ofthe 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 IOI(a)(44)(8) of the Act, 8 U.S.c. § I I o I (a)(44)(8), provides: 
The tenn "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 Fonn 1-140, the beneficiary submitted a letter dated December 23, 2008 in her capacity as 
the petitioner's president and CEO. The beneficiary stated that she holds the top-most position within the U.S. 
entity and in that capacity she will maintain responsibility over planning and developing the U.S. investment, 
executing and recommending personnel actions, placing a management team to run the operations, overseeing 
Page 4 
the company's finances, and developing policies and objectives. She further stated that she would negotiate 
and supervise the drafting of purchase agreements, develop trade and consumer market strategies, hire 
personnel, lease equipment and facilities, oversee the petitioner's finances and legal processes, develop and 
implement plans to ensure that the petitioner remains profitable, supervise professional and managerial 
employees, and be responsible for budgeting and marketing. 
On March 16, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
submit a detailed description of the beneficiary's proposed employment. The petitioner was infonmed that the 
job description that was previously provided in support of the petition was overly vague and did not clearly 
delineate the beneficiary's proposed day-to-day job duties. The petitioner was therefore asked to provide 
detailed evidence to substantiate that the duties the beneficiary would perfonm daily in her proposed position 
would primarily be within a managerial or executive capacity. 
In response, counsel submitted a letter dated April 29, 2009 in which he summarized the beneficiary's 
proposed position as one that involves planning, expansion, banking, budgeting, marketing, hiring and 
training employees, and increasing company sales. Counsel stated that the beneficiary is employed "at the 
highest executive level" which entails supervising professional and managerial employees and exercising 
discretionary authority to establish goals and policies and make decisions. This same information was stated 
repeatedly throughout counsel's response with great emphasis placed on the beneficiary's discretionary 
authority and her placement within the petitioner's organizational hierarchy. Counsel also provided a 
percentage breakdown to show that the beneficiary's time would be allocated in the following manner: 25% 
would be allocated to making management decisions, 15% to company representation, 15% to financial 
representation, 10% to supervision of the company's daily operations, 15% to business negotiations, and 
another 10% to organizational developments. The remaining 10% of her time was not addressed. 
Counsel indicated that the beneficiary would be the key point of contact for the shareholders and directors of 
the parent company. He also provided organizational hierarchy after its 
acquisition of the majority shares of The president and vice president were 
depicted as the only executive-level professional-level employees, which would 
include a management analyst and a public relations officer. The next level in the hierarchy would be 
comprised of one sales and one retail manager, both at the first line managerial tier, followed by a 
bookkeeper/clerk and a cashier at the clerical level, and ending with a cashier/stock person at the labor level. 
Counsel explained that the first line managers and assistant managers handle the administrative functions 
while the general manager, public relations officer, and the management analyst would be the professional 
employees who would directly answer to the beneficiary. 
On May 15, 2009, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. The 
director found that the petitioner provided a vague and generic job description that failed to convey an 
understanding of what the beneficiary's specific daily tasks would be. 
On appeal, counsel provides a discussion of the convenience store industry and briefly addresses the factors 
that the beneficiary must consider in an effort to ensure the successful operation of a convenience store. 
Counsel focuses on the beneficiary's discretionary power and executive authority, asserting that the 
beneficiary delegates tasks to a senior management team to help develop a strategy that accounts for target 
markets and the petitioner's competitors. Counsel quotes and paraphrases the statutory definitions of 
Page 5 
managerial and executive capacity, contending that the beneficiary directs the management of the petitioner 
by overseeing a team of managerial employees who in tum oversee those who carry out the daily tasks. The 
beneficiary's role in establishing goals and policies, supervision of managerial employees, and her wide 
latitude in discretionary decision-making are repeatedly emphasized. Counsel urges the AAO to consider the 
petitioner's reasonable needs and stage of development and asserts that the AAO has "specifically de­
emphasized a company's size as a determinative factor in L-l cases." 
The AAO finds that counsel's arguments are not persuasive in establishing that the beneficiary's employment 
with the petitioning entity would be in a qualifying managerial or executive capacity. 
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. § 204.5U)(5). Although the beneficiary's job 
description is not the only factor that is considered in determining the employment capacity of the proposed 
position, this element is highly critical. Published case law has upheld the significance of a detailed job 
description, finding that 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). 
In the present matter, the petitioner has failed to provide an adequate description of the beneficiary's proposed 
employment within the context of the petitioner's business. Although the beneficiary's job description 
repeatedly focuses on the beneficiary's discretionary authority and attempts to establish that a support staff 
comprised of managerial, professional, and non-professional personnel is readily available to relieve the 
beneficiary from having to execute the non-qualifying operational tasks, the petitioner fails to affirmatively 
establish just what specific tasks the beneficiary would perform. Furthermore, the petitioner has failed to 
adequately explain the need for a team of managers and executives in an organization whose chief concern 
appears to be the operation of gas station/convenience stores. Instead, the petitioner has described a rather 
complex organizational hierarchy in which the beneficiary is depicted as the top-most executive. 
In fact, while counsel's RFE response listed some job duties which were attributed to the beneficiary's 
proposed position with the U.S. entity, the AAO is entirely unclear as to how those job duties fit within the 
overall scheme of the petitioner'S business. For instance, the petitioner indicated that the beneficiary would 
identify, recruit, and build a management team. In light of the fact that the petitioner purchased ownership 
interest in businesses that were already established and operational, it stands to reason that management teams 
were already in place. The petitioner also claimed that the beneficiary would lease equipment and retail 
facilities. No explanation was provided as to the type of equipment the beneficiary would lease or how the 
leasing of equipment and retail facilities qualify as managerial or executive tasks. Similarly, the petitioner 
failed to explain how negotiating service agreements is a qualifying task or how this task is required in the 
context of the petitioner's gas station/convenience store operation. The petitioner has not shown what types of 
legal and financial processes the beneficiary would oversee, as no further information was provided to qualify 
these broad job responsibilities. 
In reviewing the information that has been provided, it appears that the petitioner purchased a 50% ownership 
interest in a corporation that operates several gas station/convenience stores, all of which were already in 
operation at the time of said purchase. While the gas station/convenience store operations that were 
purchased had employees, the petitioner itself is a separate legal entity. The record does not include 
documentation to establish whom the petitioner itself employs. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Page 6 
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)). As previously discussed, the beneficiary's job duties within the 
petitioner's current business structure are equally unclear. Despite numerous claims made by counsel and by 
the beneficiary, the AAO cannot assume that the proposed employment would be within a qualifYing 
managerial or executive capacity merely based on the beneficiary's discretionary authority or her elevated 
position with an organizational hierarchy. 
In summary, the AAO cannot reach a favorable conclusion without a job description that adequately describes 
the proposed employment. Although the director attempted to elicit necessary information by issuing an RFE 
expressly instructing the petitioner to list the beneficiary'S specific job duties, the petitioner's response lacked 
substance and did not satisfY the director's request. The petitioner failed to enumerate the beneficiary's 
specific daily tasks and thus failed to establish how the beneficiary'S time would be allocated. While the 
AAO acknowledges that no beneficiary is required to allocate 100% of hislher time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifYing tasks the beneficiary would 
perform are only incidental to hislher 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 (8) of the 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). Here, in light of the petitioner's failure to provide an 
adequate job description for the proposed employment, the AAO has not been provided with the necessary 
information concerning the job description. As such, the AAO cannot affirmatively conclude that the 
beneficiary would be employed in a qualifying managerial or executive capacity. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. § 204.S(j)(3)(i)(8) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifYing managerial or executive position for at least one out of the three years prior to her entry 
to the United States as a nonimmigrant to work for the same employer. In the present matter, the AAO 
similarly finds that the record lacks an adequate description of the beneficiary'S foreign job duties. As 
previously stated, an adequate job description is essential for the purpose of determining whether the 
beneficiary'S position primarily involves the performance of tasks within a qualifYing capacity. As this 
, crucial information has not been presented, the AAO is precluded from issuing a favorable finding with 
regard to this issue. 
Second, 8 C.F.R. § 204.5(j)(3)(i)(D) 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 firm, 
corporation, or other entity and does not include the mere presence of an agent or office." The Form 1-140 in the 
present matter was filed on January 9, 2009. In light of the filing date of the petition, the petitioner must 
establish that it was doing business as of January 9, 2008. The record shows that the petitioner does not meet 
this filing requirement. 
Although counsel's statements include numerous references to various subsections of 8 C.F.R. § 214.2(1), the 
AAO notes that the provisions cited therein pertain to the filing of a nonimmigrant petition seeking classification 
of the beneficiary as an L-I intracompany transferee. Counsel specifically made references to the "new office" 
Page 7 
petitioner which 8 C.F.R. § 214.2(l)(I)(ii)(F) defines as an organization that has been doing business in the United 
States through a parent, branch, affiliate, or subsidiary for less than one year. The regulations pertaining to 
nonimmigrant petitions do not apply in the present matter where the petitioner filed an immigrant visa petition. 
Althougb the AAO acknowledges that both the immigrant and nonimmigrant visa classifications rely on the 
same definitions of managerial and executive capacity as well as the term "doing business," the filing 
requirements for each classification are significantly different. One distinction is the new office provision that 
is incorporated into the regulations pertaining to Form 1-129 nonimmigrant visa petitions. A thorough review of 
the regulations at 8 C.F.R. § 204.5(j) shows that there is no similar provision that applies to the immigrant visa 
classification being sought by the instant petitioner. To the contrary, 8 C.F.R. § 204.5(j)(3)(i)(O) expressly states 
that the petitioner must provide evidence to show that it has been doing business for at least one year prior to the 
filing of an 1-140 petition. Thus, any entity that would fall under the heading of "new office" as defined at 8 
C.F.R. § 214.2(1)(1 )(ii)(F) would be ineligible for the approval of an immigrant visa petition. As such, the 
petitioner in the present matter is not afforded the benefit of the new office regulations. 
The documents submitted in support of the petition in the present matter show that the petitioner was formed 
as a corporate entity only five and a half months prior to the filing of the instant petition, thus making it 
factually impossible for the petitioner to have been doing business prior to the date of its own creation. The 
fact that the petitioner acquired an ownership interest in an entity that had been doing business during the 
relevant one-year period does not alter the fact that petitioner itself was not, and could not, have been doing 
business during that very time period. 
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 identity all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.O. Cal. 2001), affd, 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). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
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.