dismissed EB-1C Case: Construction

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBUCCOPY 
DATE: AUG 1 3 2012 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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)(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 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)(l)(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 
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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 Florida corporation that seeks to employ the beneficiary as its vice president. 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. 
In support of the Form 1-140 the petitioner submitted an undated statement from its company's president who 
provided a brief description of the beneficiary's proposed employment. The petitioner also provided 
supporting evidence in the form of financial and corporate documents pertaining to the petitioner and its 
foreign affiliate. 
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 May 21, 2010 informing the 
petitioner that the record lacked evidence showing that the beneficiary was employed abroad and that he 
would be employed in the United States in a qualifying managerial or executive capacity. The petitioner was 
asked to provide detailed job descriptions for the beneficiary's employment with both entities as well as each 
entity's organizational chart. 
The petitioner's response, included a statement from counsel, dated June 14, 2010, in which counsel stated 
that the beneficiary's foreign and U.S. employment are comprised of five sets of job duties, each comprising 
20% of the beneficiary's time in his foreign and proposed positions. While the petitioner provided employee 
lists for both of the petitioner's employers, the petitioner did not supplement the record with organizational 
charts illustrating the staffing hierarchy of each entity. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary 
was employed abroad and would be employed in the United States in a qualifying managerial or executive 
capacity. The director found that the petitioner submitted overly broad job descriptions for each position and 
also listed some job duties that he deemed to be non-qualifying. The director therefore issued a decision 
dated November 8, 20 I 0 denying the petition based on the two grounds stated herein. 
On appeal, counsel submits a brief in which he disputes the denial, contending that there are subcontractors 
who carry out daily non-qualifying tasks and project managers and engineers who oversee those who carry 
out such tasks, thus relieving the beneficiary from having to either perform or supervise those who perform 
the construction-related tasks that are integral to the petitioner's business. Counsel pointed out that the 
beneficiary's extensive knowledge and executive decision-making were responsible for bringing the 
petitioning entity out of debt and developing the business beyond a start-up phase. Additionally, the 
petitioner provided numerous supporting documents showing each entity's business transactions and finances. 
The AAO finds that counsel's assertions are not persuasive in overcoming the director's denial. 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: 
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(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 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 two primary issues to be addressed in this proceeding call for a discussion of the beneficiary's 
employment capacity in his respective positions with the foreign and U.S. entities. Specifically, the AAO will 
review the record in order to determine whether the petitioner submitted sufficient evidence to establish that 
the beneficiary was employed abroad and would be employed in the United States in a qualifying managerial 
or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § I 101 (a)(44)(A), provides: 
The term nmanagerial 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 
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(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 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 exammmg the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the beneficiary's job duties. See 8 C.F.R. § 204.S(j)(S). Published case law 
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), ajfd, 90S 
F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.S(j)(S). The AAO also finds that it is appropriate to consider 
other relevant factors, such as an entity'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 gauge who performs the daily operational tasks within a given entity. 
Turning first to the beneficiary position with the foreign entity, the AAO concurs, in part, with the director's 
finding that the job description provided in response to the RFE was overly vague and failed to convey a 
meaningful understanding of the specific tasks the beneficiary performed on a daily basis. Broadly stating 
that the beneficiary spent 20% of his time directing and coordinating the company's budget and finances does 
not establish what actual tasks the beneficiary performed. Directing and coordinating budget and finances is a 
general category that exists within any organization and can encompass any number of tasks not all of which 
are deemed as qualifying within a managerial or executive capacity. The petitioner's failure to identify the 
beneficiary's specific tasks within a broad category precludes the AAO from being able to determine the 
nature of the tasks the beneficiary actually performed on a daily basis. 
The same is true of the category that involved conferring with employees, coordinating activities, and solving 
problems. The petitioner did not explain which specific employees the beneficiary conferred with or the 
frequency or content of such communications. In light of the fact that overseeing non-managerial, non­
professional, or non-supervisory employees would be deemed as a non-qualifying job duty, it is crucial for the 
petitioner to further explain which employees the beneficiary conferred with and percentage of time he 
allocated to this job duty. The petitioner also provided no details as to the types of activities the beneficiary 
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coordinated or the nature of the problems he had to solve. Without the specific details. the AAO is unable to 
afflfmatively determine that the tasks the beneficiary performed were within a qualifying managerial or 
executive capacity. 
The AAO further notes that tasks such as preparing the company budget and negotiating contracts are not, on 
their face, tasks ofa qualifYing nature. This would mean that at least 40% of the beneficiary's time may have 
been allocated to non-qualifYing tasks. While the AAO acknowledges that no beneficiary is required to 
allocate 100% of his time to managerial- or executive-level tasks, the petitioner must establish that the non­
qualifying tasks the beneficiary performed or would perform are only incidental to the position(s) in question. 
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). 
Given the inadequate job description the petitioner provided to account for 60% of the beneficiary's time, the 
AAO cannot overlook the possibility that 40% that may have been allocated to the performance of operational 
and administrative tasks. 
Additionally, in reviewing the evidence submitted in response to the RFE, the AAO notes that the petitioner 
did not provide the requested organizational charts for the beneficiary's foreign or u.s. employers. Failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b)(14). While the petitioner did provide employee lists for both entities, such documents are 
not sufficient, as they fail to illustrate each entity's staffing hierarchy and the beneficiary's position in relation 
to other employees within the company. This additional lack of supporting evidence is another of the 
deficiencies that preclude the AAO from being able to affrrmatively conclude that the beneficiary was 
employed abroad within a qualifying managerial or executive capacity. 
Turning now to the beneficiary'S proposed employment with the u.s. entity, the AAO notes that the job 
description the petitioner provided in response to the RFE was meant to be applied to the beneficiary's 
foreign and u.s. employment. As such, the same analysis of the various deficiencies in the foreign job 
description is applicable to the description of the beneficiary's proposed employment. As indicated above, 
specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103. As with the beneficiary'S employment with 
the foreign entity, the petitioner has failed to provide a detailed description of the tasks the beneficiary would 
perform in his proposed position. 
Additionally, the AAO notes that while the petitioner has submitted an organizational chart among the 
supporting documents that accompanied the appellate brief, the petitioner's current organizational chart does 
not establish that the petitioner was eligible at the time of filing the petition. A petitioner must establish 
eligibility at the time of filing. 8 C.F.R. § 103.2(b)(I). A petition cannot be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 
49 (Comm. 1971). Moreover, given the fact that the petitioner failed to submit the requested organizational 
chart in response to the RFE, the AAO will not consider this evidence, which the petitioner submits for the 
flfst time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N 
Dec. 533 (BIA 1988). 
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In summary, the AAO finds that the petitioner provided only general information that fails to convey a 
detailed account of the beneficiary's job duties both abroad and in his proposed position with the u.s. entity. 
Therefore, in light of the significant deficiencies that have been discussed in this decision, the AAO finds that 
the petitioner failed to establish that the beneficiary was employed abroad and would be employed in the 
United States in a qualifying managerial or executive capacity and the petition will be denied based on these 
adverse findings. 
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.