dismissed EB-1C Case: Commerce

identifying data deleted to 
prevent clearly unw~ted 
invasion of personal pnvac} 
PUBLIC COpy 
FILE OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Departmeat of Homeland Security 
U. S. Citizenship and Irrunigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and ImmigratIon 
Services 
Date: 
AUG 092010 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(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 $585. 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, 
• 
erryRhew 
Chief, Administrative Appeals Office 
www.usds.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 chief executive officer. 
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 conclusion that the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the denial and submits a brief addressing various points in the director'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 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)(1)(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 evidence of record establishes that the petitioner would 
employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 1 o 1 (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 in which the 
employee primarily--
Page 3 
(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 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(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 October 28, 2008, which includes the 
following list of the beneficiary's duties and responsibilities: 
• Managing and developing the subsidiary's over-all business operations under the general 
supervision of the Board of Directors of Hong Kong parent company. 
• Directs and supervises the daily operations of the company. 
• In charge of recruiting, evaluate the work performance of managers and other personnel, 
hire additional employees due to company necessity or replacement. 
• Review data reports from the Market Research Analyst, forecast the market trend and 
product demand. 
Page 4 
• Direct and supervise the work of Market Research Analyst .... 
• Maintain and develop customer relationship. 
• Develop and maintain channel and distribution relationship. 
• Direct internal policy design to coordinate function and operation between divisions and 
departments. 
• Evaluate US market and make recommendations to Hong Kong parent company. 
The petitioner concluded the support letter by stating, "[The beneficiary's] varied and detailed 
executive/managerial experience make him essential to the continuous success of our u.s. operations." The 
petitioner also provided an organizational chart naming the beneficiary as the company president, subordinate 
only to the board of directors. The chart depicts four positions-sales and marketing manager, chief financial 
officer (CFO), administration, and customer service-as being directly subordinate to the beneficiary. The 
chart also depicts a third tier of employees, including a market research analyst, a sales representative, and a 
merchandiser as the direct subordinates of the sales and marketing manager; accounts receivable and accounts 
payable positions as direct subordinates of the CFO; and a shipping and receiving position as directly 
subordinate to customer service. 
On March 26, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, inter alia, a detailed description of the beneficiary's proposed employment, including a list of the 
beneficiary's job duties and the percentage of time that would be allocated to each job duty based on the 
petitioner's staffing at the time of filing. The petitioner was asked not to group tasks together, but rather to list 
them separately. The petitioner was also asked to provide a detailed organizational chart including position 
titles, names of employees, and each employee's job duties. 
In response, the petitioner provided a supplemental job description, which the director included in the denial, 
as well as the petitioner's organizational chart listing the petitioner's employees and the positions within the 
organization. It is noted that, no employees were listed in the accounts receivable and payable, 
administration, and shipping and receiving positions. 
In a decision dated June 8, 2009, the director denied the petition concluding that the petitioner failed to 
establish that the beneficiary primarily performs tasks within a qualifying managerial or executive capacity. 
The director specifically commented on the percentage breakdown that was provided in response to the RFE, 
finding that the job description was vague and had limited evidentiary value. The director also discussed the 
organizational hierarchy that was depicted in the petitioner's organizational chart, finding that the petitioner 
failed to establish that the limited support staff that the petitioner retained at the time of filing would be 
sufficient to relieve the beneficiary from having to primarily perform non-qualifying tasks. Additionally, the 
director commented on the beneficiary's proffered wage, finding that the amount was not commensurate with 
that of"a true multinational executive." 
Although the AAO will affirm the denial of the petition, it is noted that the director improperly relied on the 
beneficiary's proffered wage as an indicator of the beneficiary'S employment capacity in the proposed U.S. 
position. The director should not hold a petitioner to his undefmed and unsupported view of what he deems as a 
salary that is commensurate with that of a multinational manager or executive. Rather, the director should instead 
focus on applying the statute and regulations to the facts presented by the record of proceeding. The fact that this 
beneficiary's salary is lower relative to other beneficiaries who seek immigrant visa classification under section 
203(b)(1)(C) of the Act will not preclude the petitioner from qualifying for the same classification. For this 
reason, the director's irrelevant finding will be withdrawn. 
Additionally, per counsel's objection, the AAO finds that the footnote contained at page three of the director's 
decision does not reflect the facts presented in the instant record of proceeding. Specifically, the footnote refers 
an organizational chart naming_ in the position of internet sales specialist. However, as properly 
pointed out in counsel's appellate brief, the petitioner does not claim to employ anyone by that name; nor does the 
petitioner's organizational chart include a position for an internet sales specialist. As such, the AAO will 
disregard the referenced footnote due to its lack of relevance to the matter at hand. Nevertheless, the AAO finds 
that the record does not support counsel's speculation that the director relied on irrelevant documents to reach an 
unfavorable decision. To the contrary, the director restates, verbatim, the job description and percentage 
breakdown that the petitioner provided in its RFE response and goes on to summarize the organizational 
hierarchy that was depicted in the petitioner's organizational chart. The director then goes on to issue relevant 
findings with regard to information that was clearly provided by the petitioner. Therefore, counsel's speculation 
is simply not warranted and will not serve as a proper basis to withdraw the director's otherwise sound decision. 
Counsel also supplements the record with an additional job description in which he provides a list of seven 
job responsibilities and specifies some of the tasks that fall under the responsibility of meeting with 
department heads and making final decisions. Counsel specifies the beneficiary'S decision-making authority 
to include decisions regarding pricing and credit terms for new customers, production and shipping delivery 
issues, reviewing and approving contract proposals before presenting such to customers, reviewing the 
merchandiser's sample sketches, supervising the customer service department in the preparation of a 
production and shipping report, devising a marketing strategy and overseeing the market research analyst, 
supervising personnel in the accounting department, and reviewing and approving the company's quarterly 
financial statements. Counsel's supplemental description also included various administrative tasks, including 
calling executives on the petitioner's key accounts, consulting with counsel regarding legal issues, and 
reporting to the board of directors. 
The AAO finds that the additional information provided by counsel is not persuasive in overcoming the 
ground cited as the basis for denial. While counsel's job description specifies the types of discretionary 
decisions the beneficiary makes, the primary purpose of the RFE was to obtain a time allocation for the 
beneficiary's specific job duties. Therefore, even when a job description contains a comprehensive list of all 
of the beneficiary'S job duties, a determination of whether or not the beneficiary is employed within a 
qualifying capacity hinges on the amount of time that is allocated to managerial or executive tasks versus the 
amount of time that is allocated to daily operational tasks. While the AAO acknowledges that the beneficiary 
is not 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 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 (B) 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). 
· . 
Page 6 
Since counsel's job description lacks the necessary time breakdown, it does not establish that the beneficiary 
would primarily perform tasks within a qualifying capacity. 
The AAO further notes that, while the job description the petitioner provided in response to the RFE does 
include a timing component, it does not establish that the primary portion of the beneficiary's time would be 
spent within a qualifying capacity. First, with regard to the director's role as supervisor of daily operations, 
the petitioner failed to specify the actual tasks the beneficiary performs in fulfilling this general responsibility. 
Although it appears that supervising daily operations includes overseeing the company's three main 
departments and making discretionary decisions, these general statements do not translate into daily tasks. 
Counsel, in the supplemental job description he provides on appeal, specifies the types of discretionary 
decisions that the beneficiary makes. However, the petitioner does not provide insight into the process that 
precedes the actual decision, i.e., the specific tasks the beneficiary performs that lead up to the actual making 
of a decision on a particular subject. 
The petitioner also stated that 10% of the beneficiary's time would involve recruiting and evaluating the 
performance of managers and other personnel. As the petitioner has only one managerial employee who 
oversees the work of others, the remainder of the personnel is not comprised of managerial employees, 
regardless of position title. However, the petitioner has not specified how much time would be spent 
overseeing the other personnel, nor has the petitioner established that the other personnel whom the 
beneficiary would supervise consist of professional employees. See section 101(a)(44)(A)(ii) of the Act. 
Additionally, the petitioner indicated that 10% of the beneficiary's time would be allocated to supervising the 
market research analyst. However, the petitioner failed to specify what specific tasks would be involved in 
such supervision. Moreover, the organizational chart depicts a hierarchy where the sales and marketing 
manager would be overseeing the work of the market and research analyst. Thus, it appears that the 
organizational chart and the job description are at odds in this regard. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ro, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Lastly, the petitioner indicated that maintaining and developing customer relationships, attending trade shows 
and exhibitions, and developing and maintaining relationships with distributors will be allocated 10%, 15%, 
and 10% of the beneficiary's time, respectively. However, it is unclear how these service-providing tasks fall 
within the spectrum of what is deemed as qualifying within a managerial or executive capacity. 
In 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. § 204.50)(5). It is noted that 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; 
see also Matter of Church Scientology International, 19 I&N Dec. at 604. The AAO will then consider the 
beneficiary's job description in light of other pertinent factors, such as 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. In the present matter, the record lacks a 
comprehensive job description that conveys a meaningful understanding of the beneficiary's day-to-day tasks. 
The record also fails to adequately establish that the petitioner's support staff at the time of filing was capable 
of relieving the beneficiary from having to primarily perform daily operational tasks. In light of these 
Page 7 
findings, the AAO cannot conclude that the beneficiary's proposed position with the U.S. entity would be 
within a qualifying managerial or executive capacity. 
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.