dismissed EB-1C Case: Computer Hardware Wholesale

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PUBLIC COpy 
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 
DATE: APR 06 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
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. § I 153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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, 
<J~"h 
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 engaged in the wholesale of computer memory chips, and it seeks to employ the 
beneficiary as a sales manager. 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. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary's 
employment abroad was within a qualifying managerial or executive capacity. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. Counsel for the petitioner contends that the beneficiary is a 
function manager and a manager that supervised professionals. 
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)(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 issue that will be addressed in this proceeding calls for an analysis of the beneficiary's job duties 
with the foreign company. Specifically, the AAO will examine the record to determine whether the 
Page 3 
petitioner submitted sufficient evidence to establish that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. 
Section lOl(a)(44)(A) of the Act, 8 U.S.C. § llOl(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in 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 lOl(a)(44)(B) ofthe Act, 8 U.S.C. § llOl(a)(44)(B), provides: 
The term "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 ofthe organization. 
In examining the executive or managerial capacity of the beneficiary, USCIS 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 defmed job description, as the actual duties themselves reveal the 
Page 4 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103,1108 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). USCIS reviews the totality 
of the record, which includes not only the beneficiary's job description, but also takes into account 
the nature of the petitioner's business, the employment and remuneration of employees, as well as the 
job descriptions of the beneficiary's subordinates, if any, and any other facts contributing to a 
complete understanding of a beneficiary's actual role within a given entity. 
An analysis of the record does not lead to an affirmative conclusion that the beneficiary Was 
employed abroad in a qualifying managerial or executive capacity. With regard to the foreign 
position the petitioner provided a list of job duties performed by the beneficiary with a percentage 
breakdown which included broadly stated job responsibilities. Due to the overly general information 
included in the percentage breakdown, the AAO is unable to gain a meaningful understanding of how 
much time the beneficiary spent performing qualifying tasks versus those that would be deemed non­
qualifying. 
The petitioner provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary will do on a day-to-day basis. The petitioner states vague duties 
such as the beneficiary will "set target customers and sales goals to team members in their sales 
territories," "monitor sales activities," and "adjust sales strategies." The petitioner did not, however, 
define the petitioner's goals and policies, or clarify the role of the sales department. Reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has 
failed to provide any detail or explanation of the beneficiary's activities in the course of her daily 
routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. at 1108. The petitioner's descriptions ofthe beneficiary's position do 
not identify the actual duties to be performed, such that they could be classified as managerial or 
executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary will ''watch 
market situation and provide team members necessary information and suggestions," "customer 
visit," and ''train team members." The petitioner also provided the duties to be performed by the 
beneficiary's subordinates which include "responsible for sales growth/goal achievements, marketing 
co-operation, customer relationship and account receivables with major and minor clients." The 
petitioner did not indicate who will be in charge of the market research, the development of the 
marketing program, or the development ofthe sales strategies. It appears that the beneficiary will be 
developing and marketing the products of the business rather than directing such activities through 
subordinate employees. 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 
Intn'l., 19 I&N Dec. at 604. . 
The petitioner indicated that 30% of the beneficiary'S time was allocated to "monitor sales activities 
between sales reps and target customers and assist sales reps when needed." It is unclear which 
specific tasks actually fall within this broad category. Merely using the term "monitor" to describe 
the beneficiary's function does not establish that the tasks the beneficiary performed were of a 
PageS 
qualifying nature. The beneficiary's position description is too general and broad to establish that the 
preponderance of his duties is managerial or executive in nature. 
The job description submitted by the petitioner provides little insight into the true nature of the tasks 
the beneficiary will perform. While the petitioner has provided a breakdown ofthe percentage oftime 
the beneficiary will spend on various duties, the petitioner has not articulated whether each duty is 
managerial or executive. 
Furthermore, the director requested an organizational chart of the foreign company describing the job 
duties of the beneficiary with the foreign entity. The organizational chart indicated that the 
beneficiary supervised six sales representatives. In addition, the organizational chart indicated that 
the beneficiary was supervised by the International Sales Team Director, who was supervised by the 
general manager, the president/CEO and the board of directors. It appears that the beneficiary was 
the first-line supervisor of the sales department. 
After reviewing the beneficiary's job description with the foreign entity and considering that 
information in light of the foreign entity's organizational structure as it specifically pertained to the 
beneficiary's position, the AAO cannot conclude that the primary portion of the beneficiary's time 
was spent performing tasks within a qualifying managerial or executive capacity. 
Although counsel suggests that the beneficiary's position may be deemed as that of a function 
manager which does not focus on the beneficiary's duties as a personnel manager, counsel cannot 
merely raise these alternate claims to avoid addressing the non-qualifying tasks the beneficiary would 
have to perform by overseeing the work of non-supervisory, non-professional, and/or non-managerial 
employees. Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Moreover, 
counsel's assertions are not consistent with the job description and the organizational chart that the 
petitioner has provided in which considerable focus was placed on the beneficiary's supervision of 
subordinate employees. 
The AAO acknowledges counsel's contention that the beneficiary'S position is an essential function 
within the petitioner's organization. The term "function manager" applies generally when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act, 8 U.S.c. § 1101(a)(44)(A)(ii). The term "essential function" is not 
defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the 
essential nature ofthe function, and establish the proportion ofthe beneficiary'S daily duties attributed 
to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's 
description of the beneficiary'S daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. An employee who primarily performs 
the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Boyang, Ltd. v. I.NS., 67 F.3d 305 (Table), 1995 WL 576839 (9th 
Page 6 
Cir, 1995)( citing Matter of Church Scientology international, 19 I&N Dec. at 604. The petitioner has 
not provided sufficient evidence that the beneficiary manages an essential function. As noted above, 
the petitioner provided a brief and vague job description that did not discuss how the beneficiary is 
managing an essential function. Only on appeal did counsel for the petitioner claim that the 
beneficiary is a function manager. However, as noted above, the beneficiary's job description does 
not establish that the beneficiary is primarily performing in a managerial capacity. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's 
actual duties and role in a business. In the case of a function manager, factors to review may include 
the beneficiary's position within the organizational hierarchy, the depth of the petitioner's operations, 
the indirect supervision of employees within the scope of the function managed, and the value of the 
budgets, products, or services that the beneficiary manages. 
As discussed above, the petitioner has not identified employees within the petitioner's organization, 
subordinate to the beneficiary, who would relieve the beneficiary from performing routine duties 
inherent to operating the business since the subordinates' duties are to execute the sales and not to 
look for new customers or to develop the marketing and sales strategies. The fact that the beneficiary 
has been given a managerial job title and general oversight authority over the sales representatives is 
insufficient to elevate her position to that of a "function manager" as contemplated by the governing 
statute and regulations. As discussed above, the petitioner has not established that the beneficiary's 
duties are primarily managerial in nature, and thus she cannot be considered a "function manager." 
Other than stating that the proposed position will be responsible for managing an unidentified 
essential function, counsel provides no explanation or evidence in support of his claim that the 
beneficiary would qualify as a function manager pursuant to section 101(a)(44)(A)(ii) of the Act. The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled 
to any evidentiary weight. See INS v. Ph inpa thya , 464 U.S. 183, 188-89 n.6 (1984); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity and based on this finding, the 
instant petition cannot be approved. 
Furthermore, the petitioner submitted a letter that stated the beneficiary was employed with the 
foreign company since September 6, 1999 and has held the position of Sales Manager since January 
1, 2004. On appeal, the petitioner submits a certificate of employment that states the beneficiary was 
employed as a Sales Manager with the foreign company from "Jan 2005 to Sep 2005." Thus, the 
information is inconsistent as to the length of time the beneficiary held the position of Sales Manager 
with the foreign company. The regulations require that the beneficiary hold a qualifying managerial 
or executive position with the foreign company for at least one year. If the letter that was submitted 
on appeal is accurate, the beneficiary did not hold the position of Sales Manager with the foreign 
company for an entire year. It is incumbent upon the petitioner to resolve any inconsistencies in the 
Page 7 
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 Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity. Based on this fmding, the 
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.