dismissed EB-1C Case: Construction

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Seeurity 
U. S. Citizenship and Immigration Services 
Oflce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PlJJ3LIC COPY 
APR 0 8 2010 
LIN 07 130 53573 
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. 4 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. $ 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 or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
V 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 Georgia corporation that seeks to employ the beneficiary as its president and chief 
executive officer. 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. 
3 1 153(b)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner failed to establish that it would employ the beneficiary in a 
managerial or executive capacity and denied the petition on that basis. Counsel, on behalf of the petitioner, 
now files an appeal, seeking to overturn the director's decision. Counsel asserts that the beneficiary qualifies 
as both a manager and an executive within the definitions of managerial and executive capacity, respectively. 
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. 
The primary issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial and/or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 3 1 10 1 (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. 9 1 1 Ol(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 fiom 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 March 14, 2007, listing nine job 
responsibilities that would be assigned to the beneficiary in his proposed position. As the director included all 
nine items in the adverse decision, the AAO will not repeat this information in the current discussion. The 
petitioner also provided a letter from counsel dated March 29, 2007 in which counsel stated that the 
beneficiary's prospective employment qualifies under both the statutory definition of managerial capacity and 
the definition of executive capacity. Counsel paraphrased the definition of executive capacity and further 
stated that as a manager, the beneficiary would supervise and control the work of other supervisory and 
managerial employees, including a project manager, an operations manager, a field supervisor, a field 
supervisorlmachinery operator, an accountant, and a sheet metal specialist. The petitioner also provided its 
organizational chart depicting the beneficiary as head of a three-tier hierarchy with the positions listed by 
counsel as the beneficiary's direct subordinates. The project manager, the operations manager, and the two 
field supervisors oversee the employees who are placed at the bottom tier of the petitioner's hierarchy. 
On June 18, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a supplemental description of the beneficiary's proposed employment. Specifically, the petitioner 
was instructed to provide a list of the beneficiary's specific daily tasks accompanied by the percentage of time 
the beneficiary would spend performing each task. 
In response, the petitioner provided a supplemental percentage breakdown of the beneficiary's job 
responsibilities. The petitioner discussed the beneficiary's top placement within the petitioner's hierarchy and 
focused on the beneficiary's discretionary authority over the company's policies and objectives as well as his 
supervision of all managers. As the director included the complete description in the denial, the AAO need 
not restate this information in the current decision. 
The petitioner also provided copies of nine IRS Form W-2s and the ten Form 1099s it issued in 2007. The 
petitioner also 'provided an updated organizational chart, which depicts a four-tiered management structure 
that is different from the organizational chart initially submitted in support of the petition. While the updated 
chart depicts the beneficiary as the head of the organization, it lists his two subordinates as an operations 
manager and a director of accounting and finance, a position that is shown as currently vacant. The director 
of accounting and finance will oversee the accountant, who is the same individual as the one identified in the 
organizational chart that was initially submitted. The operations manager is shown as overseeing an 
operations assistant, a project manager, and two field supervisors. The project manager and two field 
supervisors each have their own subordinates who are primarily identified as contracted workers. 
In a decision dated March 4, 2009, the director denied the petition concluding that the petitioner failed to 
establish that the beneficiary would primarily perform tasks within a qualifying managerial or executive 
capacity in his proposed employment with the U.S. entity. The director considered the job descriptions of the 
project and operations managers and found that neither position can be deemed as that of a professional. 
While this observation may be true, section 101(a)(44)(A)(ii) of the Act does not mandate that the 
beneficiary's subordinates necessarily be professional employees. Rather, the relevant section of the Act 
permits the beneficiary to oversee the work of subordinate managers or supervisors in addition to professional 
workers. That being said, the director was correct to point out that contractors are not deemed to be 
employees of the petitioning organization. Lastly, the director defined a function manager as someone who 
does not supervise or control a staff and determined that the term "function manager" does not apply to the 
beneficiary's proposed employment. 
On appeal, counsel disputes the director's findings and asserts that the beneficiary's proposed employment fits 
the definition of managerial and executive capacity. Counsel first addresses executive capacity, claiming that 
the beneficiary functions as the highest level executive, directs the management of the organization, 
establishes policies and goals, and exercises discretion in decision making. Counsel goes on to provide 
several examples of the beneficiary exercising his discretionary authority in deciding which subcontractors to 
use on various projects, choosing which projects the company would take on, planning the company's budget, 
hiring and firing personnel, and developing the business. Counsel refers back to the job description and 
percentage breakdown the petitioner provided in response to the RFE, and asserts that the job description 
serves as evidence that the beneficiary's prospective employment fits the definition of executive capacity. 
Counsel's assertion is based on the assumption that the job description previously provided adequately 
clarifies the tasks the beneficiary would perform. As determined by precedent case law, the actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), af'd, 905 F.2d 41 (2d. Cir. 1990). 
In the present matter, the job description offered by the petitioner in response to the RFE falls far short of the 
director's ultimate goal, which is to gain a meaningful understanding of the specific tasks the beneficiary 
would perform in his proposed position with the U.S. entity. While counsel focuses predominantly on the 
beneficiary's overall control and decision-making authority, neither element is sufficient to establish the 
nature of the tasks the beneficiary would primarily perform. Counsel's assessment appears to be premised on 
the notion that a beneficiary who is placed at the top level of an organization and who is the key decision- 
making authority is likely to be employed in a qualifying capacity. This assessment, however, is incorrect. 
The petitioner must do more than merely establish that the beneficiary has ultimate discretion over the 
petitioner's business matters. As required by regulation, the petitioner must provide a detailed description of 
the beneficiary's proposed job duties. See 8 C.F.R. 5 204.5(i)(5). The description of duties is then considered 
in light of the petitioner's staffing composition. Combined, these two factors enable USCIS to gauge the 
degree to which an entity is capable of relieving the beneficiary from having to primarily perform operational 
tasks, which, while essential to an entity's daily function, are not deemed managerial or executive. 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). 
The petitioner claims that the beneficiary will determine and formulate policies; plan, direct, and coordinate 
operational activities; and monitor the performance of managers in their various tasks. However, generally 
listing these broad job responsibilities does little more than reiterate the prongs of the statutory definitions. 
The petitioner's statements do not disclose what specific tasks are involved in determining and formulating 
policies. More specifically, the petitioner did not discuss the types of policies the beneficiary would 
formulate and what would be the basis or foundation for these policies. With regard to planning, directing 
and coordinating activities, the petitioner did not expressly state what activities would be involved, what 
specific role the beneficiary would assume in planning, directing, and coordinating, and the role others within 
the organizational hierarchy would play in relieving the beneficiary from having to perform operational tasks. 
Although the petitioner also stated that the beneficiary would spend 15% of his time directing and 
coordinating activities of the company, there is no clarifying distinction between this set of responsibilities 
and those dealing with the planning, directing, and coordinating of operational activities to which the 
petitioner also attributed 15% of the beneficiary's time. In other words, the AAO is unable to determine how 
the job duties would differ between two separate sets of job responsibilities. The general statements provided 
by the petitioner suggest significant overlap of tasks, thereby leading the AAO to question why similar 
responsibilities were listed separately. 
The petitioner's failure to specifically state how much of the beneficiary's time would be spent on non- 
qualifying tasks such as supervising individuals who are not supervisory, professional, or managerial or 
traveling to project sites precludes the AAO from being able to determine how much of his time would be 
devoted to these non-qualifying tasks. Although the AAO acknowledges the petitioner's submission of an 
updated organizational chart in response to the RFE, a petitioner must establish eligibility at the time of filing; 
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). Therefore, any changes in the 
petitioner's organizational hierarchy that took place after the Form 1-140 was filed cannot be considered for 
the purpose of determining the petitioner's eligibility at the time of filing. The original organizational chart 
indicates that the beneficiary would oversee the work of an accountant; a field supervisor whose Form W-2 
Page 6 
for 2007 indicates that he was either employed on a part-time basis or may not have been employed at the 
time of filing; and a sheet metal specialist, whose employment with the petitioner has not been corroborated 
with evidence and who is not a supervisory, professional, or managerial employee. 
In light of the above, the AAO cannot conclude that a majority of the beneficiary's time would be spent 
performing qualifying tasks. Given the overall lack of specificity in the petitioner's description of the 
beneficiary's proposed employment with the U.S. entity, the petitioner has not persuasively established that 
the beneficiary would be employed in a primarily 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, the petitioner must establish that the beneficiary was employed abroad in a qualifying managerial or 
executive position for one year during a specified three-year period. In response to the RFE, the petitioner 
provided an organizational chart of the foreign entity. The petitioner also provided a job description stating 
that the beneficiary was the foreign entity's operations manager, which included overseeing and managing 
daily operations for 40% of the time; overseeing personnel, including hiring, scheduling, and training 
employees for another 40% of the time; implementing a sales plan for 15% of the time; and directing and 
managing inventory for the remaining 5% of the time. The AAO notes that, much like the job description 
regarding the proposed employment, the description of the beneficiary's employment abroad is equally 
lacking in specific daily tasks, thereby precluding the AAO from being able to ascertain how much of the 
beneficiary's time was spent performing tasks within a qualifying managerial or executive capacity. The 
petitioner's failure to specify the beneficiary's actual job duties during his employment abroad preclude the 
AAO from being able to conclude that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity. 
Additionally, the AAO is unable to conclude that the foreign employment took place within the qualifying 
three-year time period. To clarify, the AAO finds that the following subsections of 8 C.F.R. fj 204.5Cj)(3)(i) 
are relevant: 
(A) If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least 
one year in a managerial or executive capacity by a firm or corporation, or other legal 
entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the fi& or corporation, or other legal entity by which the alien 
was employed overseas, in the three years preceding entry as a nonimmigrant, the alien 
was employed by the entity abroad for at least one year in a managerial or executive 
capacity[.] 
In the petitioner's intent to establish that the beneficiary was employed abroad during the requisite time 
period, the petitioner applied the provisions of 8 C.F.R. 5 204.5Cj)(3)(i)(B), which implies that the beneficiary 
is currently and was, at the time the Form 1-140 was filed, employed in the United States by "the same 
employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was 
employed overseas." However, the petitioner's Form 1-140 indicates that at the time of filing, the beneficiary 
was present in the United States in F-2 status, or the status accorded to the dependent of someone who 
possesses an F-1 student visa. Therefore, it cannot be concluded that the beneficiary was in the United States 
working for the U.S. petitioner at the time of filing and the provisions of 8 C.F.R. 5 204.56)(3)(i)(A) must be 
applied. Therefore, the relevant three-year time period of employment abroad is not the three years prior to 
the beneficiary's entry into the United States to work for the same employer, but rather the period of foreign 
employment that took place during the three years prior to the date the instant Form 1-140 was filed. 
In the present matter, the beneficiary was not employed abroad during the relevant three-year time period. 
More specifically, the record shows that the instant Form 1-140 was filed in April 2007. According to the 
beneficiary's Form G-325, Biographic Information, dated July 21, 2004, the beneficiary was employed in the 
United States since July 1999 up through the date the Form G-325 was filed. U.S. Citizenship and 
Immigration Services (USCIS) records further indicate that the beneficiary's employment in the United States 
in L-1A status continued through July 16, 2006, when his L-1A status was set to expire after duration of 
seven In light of this information, it is not apparent that the beneficiary was employed in the United 
States during the relevant time period. Therefore, even if the petitioner were to sufficiently establish that the 
beneficiary's employment abroad was within a qualifying managerial or executive capacity, the record does 
not allow the AAO to conclude that such employment took place during the relevant time period. For this 
additional reason, the instant petition cannot be approved. 
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. 2001), affd, 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 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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed. 
1 USCIS records show that the beneficiary was initially granted L-1A status from August 10, 1999 through July 16, 
2000, after approval of a Form 1-129 (receipt no. SRC992165 1068). Three further L-1 A petitions (with receipt nos. 
SRC0022552 106, SRC02222502 1 1, and SRC 04 1295 147 1) were approved on behalf of the beneficiary, extending his 
lawful stay in the United Status until July 16, 2006.