dismissed EB-1C Case: Construction

U.S. Department of Homeland Security 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U. S. Citizenship and Immigration Services 
Oflce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 8 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
bq$ F. Grissom 
Acting Chief, Administrative Appeals Office 
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 Florida corporation engaged in the construction business. It seeks to employ the 
beneficiary as its director of business and product development. Accordingly, the petitioner 
endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(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 disputes the director's conclusions and submits a brief in support of his 
assertions. A full discussion of the director's denial and counsel's arguments is provided below. 
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)(l)(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. 
Page 3 
The primary issue in this proceeding calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary 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. 4 1 101(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 101 (a)(44)(B) of the Act, S U.S.C. 5 1 101 (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 
hnction 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. 
Page 4 
In support of the Form 1-140, the petitioner submitted a letter dated September 26, 2006, which 
includes the following description of the beneficiary's proposed employment: 
Determine and formulate the policies and business and product development 
strategies for [the petitioner], provide overall direction to the operation and ensure the 
company's future market share in temporary access solutions such as the manufacture 
of system scaffolding, fitting, tubing, staging, related production, and home 
construction. 
Direct, plan, and implement business objectives, such as marketing and growth 
activities within the areas of prestigious luxury custom home construction and 
temporary access solutions. 
Review financial data, reports, statements, and revenue reports to establish whether 
[the petitioner] meets its sales goals. 
Confer with overseas board members regarding the conglomerate's continued product 
developing in the United States and educate and advise the board on industry[-] 
specific U.S. market trends, building codes, regulations, licensing, and restrictions as 
it relates to temporary access solutions product development. 
Direct the training of staff as it relates to communications with prestigious luxury 
custom homebuyers and direct the education of staff concerning the market niche of 
temporary access solutions and its products. 
Analyze and compare the activities of competitors to evaluate overall company 
performance and direct corrective measures as necessary[.] 
Gauge luxury custom homes real estate market trends and study industry[-]specific 
business journals and reports and adjust business service offerings accordingly to 
remain competitive[.] 
Assign and delegate responsibilities and preside at staff meetings. 
The petitioner also provided an organizational chart, illustrating a five-tier hierarchy comprised of 
eight employees. The beneficiary was depicted at the tier that is second from the top-level 
executive, with a commercial manager and an operations manager as his immediate subordinates. It 
is noted, however, that in Part 5, Item 2, the petitioner stated that it had three employees at the time 
of filing. 
On November 16, 2007, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide a more detailed list of the beneficiary's proposed day-to-day job duties with a 
percentage of time assigned to each task. The petitioner was also asked to provide a completed copy 
of its 2006 tax return as well as all W-2 statements issued to the beneficiary's subordinates in 2006. 
Lastly, the director pointed out the discrepancy between the information provided in the previously 
submitted organizational chart and Part 5, Item 2 of the Form 1-140 with regard to the petitioner's 
staffing at the time of filing. 
 The petitioner was asked to explain why it claimed only three 
employees in the Form I- 140, but submitted an organizational chart identifying eight employees. 
In response, the petitioner provided a letter dated December 19, 2007 from its attorney, who listed 
and briefly described the exhibits being submitted to address the director's concerns in the WE. 
Exhibit 3 included a percentage breakdown illustrating how the beneficiary's time would be allotted 
to his various job responsibilities. As the director included key portions of the petitioner's 
description in his decision, the AAO need not repeat this information at this time. The petitioner 
also provided an organizational chart as part of Exhibit 4, illustrating a three-tiered hierarchy headed 
by the beneficiary with a commercial manager and an operations manager as his two direct 
subordinates. The chart further shows two construction engineers as direct subordinates of the 
operations manager. The petitioner explained that the chart previously provided in support of the 
Form 1-140 included three employees who were actually part of the higher management staff at the 
foreign entity. The petitioner did not, however, explain the discrepancy between the organizational 
chart offered in response to the RFE and the personnel information provided in the Form 1-140 at the 
time of filing. Lastly, the petitioner provided copies of the W-2 statements it issued in 2006 to its 
commercial and operations managers and its two construction engineers. The AAO notes that the 
petitioner provided no documentation to establish its employment of the beneficiary at the time the 
petition was filed, nor does any of the submitted documentation reconcile the apparent inconsistency 
between the petition, which indicates that the petitioner had three employees at the time of filing, 
and the petitioner's current claim that it employed five people at the time of filing. 
On March 26, 2008, the director issued a decision denying the petitioner's Form 1-140. The director 
noted that the petitioner failed to provide an adequate description of the beneficiary's specific job 
duties. The director further commented on the lack of complexity in the petitioner's organizational 
hierarchy, which, in light of a deficient job description, precluded an overall finding that the 
beneficiary would primarily perform job duties within a qualifying managerial or executive capacity. 
On appeal, counsel asserts that the director did not take proper notice of the beneficiary's full job 
description and instead redacted what counsel deems to be relevant portions of the description. 
However, counsel has provided no evidence to support this erroneous assumption. In fact, when 
making a determination regarding the petitioner's eligibility, the director considers all documents 
that have been submitted for the record, despite the fact that the director chooses not to specifically 
enumerate and discuss each document. It is illogical, not to mention time consuming, to address 
irrelevant documents and information. For the purpose of providing simple clarification to the 
petitioner to best explain why an adverse conclusion had been reached, the director uses his 
discretion to expressly list and address only the documents and information that are directly relevant 
to the specific ground(s) being cited as the basis for denial. 
In the present matter, the director properly cited only those portions of the beneficiary's job 
description that were most relevant to the issue at hand, i.e., whether the proposed employment 
would be primarily comprised of qualifying managerial or executive job duties. As such, rather than 
duplicate the statements that followed the key portion of the job description, the director chose to 
focus on the task or responsibility assigned to the beneficiary. For instance, the petitioner stated that 
15% of the beneficiary's time would be spent reviewing financial data, including a variety of reports 
and statements. The remainder of the description regarding this portion of the job description 
included the petitioner's explanation of why the beneficiary needs to conduct the review and the 
business goal the petitioner hopes to attain as a result of the beneficiary's actions. While the AAO 
has conducted its own independent review of the record and duly takes notice of all of the 
petitioner's statements, it is unclear how an explanation of business goals adds to U.S. Citizenship 
and Immigration Services' (USCIS) understanding of the beneficiary's day-to-day job duties. In 
other words, merely explaining that the beneficiary would review reports and statements for the 
purpose of ensuring that the petitioner meets its targets and generates sufficient revenue provides no 
insight into the beneficiary's actual daily tasks. 
Counsel similarly faults the director for omitting the statements that follow another portion of the job 
description, which states that the beneficiary spends 20% of his time analyzing and comparing the 
activities of the petitioner's competitors. Counsel points out that the director failed to restate the 
additional statements that discussed the demise of competing companies and the petitioner's 
expectation to survive and succeed in the current market. The petitioner then continued with a 
discussion of the construction companies that have recently failed and seemingly indicated that the 
beneficiary ultimately determined the basis for these failures versus other companies' successes. 
Again, it is entirely unnecessary for the director to quote, verbatim, the petitioner's lengthy 
discussions, which are ineffective in conveying a more accurate description of the beneficiary's day- 
to-day tasks. While counsel cites 8 C.F.R. § 204.5(j)(5), thereby seemingly acknowledging the 
importance of a detailed job description, he defends the petitioner's deficient statements, which 
ultimately fail to convey a meaningful understanding of the tasks that the beneficiary would perform 
on a day-to-day basis. 
That being said, counsel apparently differentiates between a detailed job description and the 
director's request for a detailed statement of day-to-day job duties, arguing that there is no statute or 
regulation that requires the petitioner to provide the latter accompanied by a percentage breakdown. 
Counsel's argument, however, fails to take into account precedent case law establishing that it is the 
actual duties themselves that reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Furthermore, the 
provisions of 8 C.F.R. 9 103.2(b)(8)(iii) clearly empower USCIS with the discretionary authority to 
deny a petition even when all initial required evidence has been submitted. Thus, USCIS recognizes 
that even in instances where a petitioner complies with initial documentary requirements, it may 
nevertheless be ineligible for the immigration benefit sought. Accordingly, the same regulatory 
provisions empower USCIS with the authority to issue either a notice of intent to deny or an WE for 
further evidence of eligibility, implying that the director enjoys broad discretion in the type of 
evidence or documentation that can be requested. Thus, counsel is incorrect in his assertion that the 
director is precluded from requesting a detailed percentage breakdown of the beneficiary's proposed 
tasks simply because such documentation is not expressly enumerated in any regulatory provision. 
Moreover, the information the director requested in the present matter is highly relevant and 
necessary in determining the petitioner's eligibility. As such, there is simply no basis upon which 
the AAO can conclude that the director's request for specific information regarding a highly relevant 
subject matter was in any way contrary to law and "devoid of reality," as claimed by counsel. 
Additionally, counsel restates a number of job descriptions for managerial positions as issued by the 
U.S. Department of Labor (DOL). This information, however, is irrelevant in the present matter, 
where a specific definition of "managerial capacity" is applied in an isolated immigration context. In 
Page 7 
other words, use of the term "managerial" is not limited in its application, such that it can only be 
used in the immigration setting. Rather, this term is widely applied to a number of different 
positions which vary in complexity, depending on the industry and organizational hierarchy of the 
entity in which the manager may be employed. However, the petitioner in the present matter is 
attempting to establish that the beneficiary is eligible for classification in a specific immigrant 
category, i.e., the category of a multinational manager or executive. In order to establish that the 
beneficiary merits classification in this category, the petitioner must establish that the beneficiary's 
prospective employment fits within the confines of the relevant statutory definition for managerial or 
executive capacity. 
 See sections 101(a)(44)(A) and (B) of the Act. 
 Therefore, the only job 
description that is relevant in the present matter is the one that specifically applies to the 
beneficiary's prospective U.S. employment. The job titles and accompanying descriptions provided 
by the DOL were not created in light of the statutory definitions of managerial and executive 
capacity and do not describe the specific job duties of the beneficiary. As such, counsel's argument 
is entirely lacking in relevance and foundation. 
Lastly, counsel argues that the director's use of the word "clear" and its derivatives implies the 
director's use of the wrong standard of proof, i.e., clear and convincing rather than the preponderance 
of the evidence standard. This assertion, however, is also erroneous. Contrary to counsel's apparent 
misconception, the director's use of words like "clear" and "clearly" simply explains that further 
clarification of certain information was needed in order to meet the preponderance of the evidence 
standard. In other words, unless relevant information about the beneficiary's job description and the 
petitioner's organizational hierarchy is conveyed clearly, the director cannot conclude that the 
beneficiary would more likely than not be employed in a qualifying managerial capacity. In the 
present matter, the director properly determined that the petitioner failed to clarify relevant 
information regarding the beneficiary's proposed job duties. Without this highly relevant 
information, USCIS cannot conclude that it is more likely than not that the primary portion of the 
beneficiary's time would be allotted to job duties in a qualifying capacity. 
As previously stated, 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. tj 204.5(j)(5). After 
reviewing the evidence submitted in the present matter, the AAO concludes that the director's 
finding regarding the lack of a sufficient job description was warranted. Specifically, the petitioner 
used broad terminology such as plan, direct, implement, coordinate, and analyze to account for more 
than 50% of the beneficiary's time. However, there is no information as to the specific tasks that 
would be formed or the means by which the beneficiary intends to meet these broad business 
objectives. Additionally, despite the director's express request for the petitioner to reconcile the 
inconsistency regarding its staffing at the time of filing, there is no evidence that adequate 
documentation was provided to address this valid concern. 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 Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
Thus, in reviewing the evidence on record, the AAO finds that the petitioner failed to provide 
sufficient information regarding the beneficiary's job duties and did not clarify with proper 
documentation exactly whom it employed at the time of filing such as to establish that the petitioner 
was adequately staffed to relieve the beneficiary from having to primarily perform non-qualifying 
tasks under an approved petition. For this reason, the petition may not be approved. 
Furthermore, while not previously addressed by the director, in the process of its independent review 
of the submitted documentation, the AAO observed an anomaly in one of the petitioner's submitted 
stock certificates that has led to further questions regarding the petitioner's eligibility. Specifically, 
the AAO notes that the photocopied stock certificate, which was issued to, appears to 
be invalid. To illustrate further, the top left of the stock certificate, which lists the number of the 
specific certificate in a series, indicates that this is stock certificate No. 1. It also appears that the 
number was altered at some point and the photocopy was made after the alteration. Additionally, 
further down the document, where the number of the stock certificate is supposed to be shown again, 
the same document is identified as stock certificate No. 2. The record is void of any documentation 
that would reconcile or explain this apparent discrepancy. This anomaly regarding the validity of a 
relevant document has caused the AAO to question the petitioner's claimed qualifying relationship 
with a foreign entity and the credibility of the petitioner's overall claim. Doubt cast on any aspect of 
the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988). Accordingly, the AAO finds that this unresolved inconsistency precludes the finding 
that a qualifying relationship exists between the petitioner and the beneficiary's foreign employer as 
required by 8 C.F.R. $204.50)(3)(i)(C). 
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 identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 20011, afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
ground of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afld 
345 F.3d 683. 
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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.