dismissed EB-1C Case: Construction Equipment Sales

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
SRC 05 223 52432 
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. fj 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. 
&"....I 
ROC;* P. nn, Chief 
Administrative Appeals Office 
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 engaged in the sale and export of construction equipment and parts. It 
seeks to employ the beneficiary as its president. 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. tj 1 153(b)(l)(C), as a multinational executive or manager. The director 
denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to establish that 
the beneficiary was employed abroad in a managerial or executive capacity; and 2) the petitioner failed to 
establish that the beneficiary would be employed in the United States in a managerial or executive capacity. 
After a thorough review of the record, the AAO concludes that the petitioner has provided sufficient 
information to establish that the beneficiary's position abroad was within a qualifying managerial or executive 
capacity. In an earlier appellate decision regarding the Form 1-140 previously filed by the same petitioner, the 
AAO specifically identified a number of deficiencies that led to the adverse conclusion with regard to the 
beneficiary's position abroad. In support of its most recent Form 1-140, however, the petitioner has cured 
most of those deficiencies, including the provision of additional information regarding the foreign entity's 
organizational hierarchy, the job duties of the beneficiary's subordinates, and an illustration of the 
beneficiary's position within the organization. A comprehensive review of this information suggests that the 
petitioner has met its burden of proof with regard to the beneficiary's foreign position and, as such, this basis 
for the director's denial is hereby withdrawn. Accordingly, this decision will primarily address the remaining 
issue concerning the beneficiary's proposed position with the U.S. entity. 
On appeal, counsel disputes the director's findings and submits a brief in support of his arguments. 
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 record shows that the petitioner previously filed another Form 1-140, which was denied on June 17, 2005. The 
appeal fiom that decision was dismissed by the AAO on December 14,2005. 
Page 3 
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 has established that the beneficiary would be 
employed in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1101(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, 8 U.S.C. tj 1101(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 of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated July 29, 2005, which includes the 
following description of the beneficiary's proposed employment in the United States: 
[A]s [plresident of our corporation, [the beneficiaryl's duties and responsibilities include 
establishing the business and financial goals as well as policies of our corporation together 
with overseeing the achievements of these goals and policies. He also is responsible for 
coordinating all activities between [aldministration, [mlarketing and [slales and [slewice 
[slupport, supervising and evaluating the work performance of our [vlice 
[p]resident/[m]arketing [dlirector, our [aldministrator, together with hiring and firing 
employees and setting their salaries. 
Approximately 30% of [the beneficiaryl's work week involve establishing the business and 
financial goals and policies of our corporation together with overseeing the achievement of 
the business and financial goals and policies. Approximately 30% of his work week involves 
coordinating all activities between administration, sa.les and product support. Approximately 
30% of his work week involves supervising and evaluating the work performance of our 
[vlice [p]resident/[m]arketing [dlirector, and [aldrninistrator together with hiring and firing 
employees and setting their salaries. The balance of [the beneficiaryl's work week involves 
day-to-day activities. 
Additionally, the petitioner stated that since the time of filing the instant Form 1-140, it has employed five 
individuals, two of whom are the beneficiary's direct subordinates. The petitioner maintains that the 
beneficiary's subordinates are professional and managerial employees with subordinates of their own. 
Upon further review, the director determined that the petitioner failed to submit sufficient evidence and 
information establishing that the beneficiary would be employed by the U.S. entity in a qualifying managerial 
or executive capacity. Accordingly, on January 11, 2007, the director issued a request for additional evidence 
(RFE) instructing the petitioner to provide a detailed description of the beneficiary's daily job duties as well as 
the percentage of time assigned to each duty. The director acknowledged the above job description and asked 
the petitioner to specify actual duties associated with the beneficiary's goal-setting and policy-making 
responsibilities. The petitioner was also instructed to provide more specific job descriptions for the 
employees that are subordinate to the beneficiary. 
In response, the petitioner provided a letter dated March 15, 2007 in which an additional description of the 
beneficiary's responsibilities was provided.2 The petitioner also provided its organizational chart as well as 
the names, job titles, and job descriptions of the remaining employees within its hierarchy. 
This portion of the petitioner's response was recited on page 4 of the director's decision. As such, the AAO need not 
repeat the description in this decision. 
After a thorough review of the petitioner's submissions, the director issued a decision dated June 19, 2007 in 
which she concluded that the petitioner failed to establish that the beneficiary's proposed position would 
primarily consist of qualifying managerial or executive job duties. A number of adverse findings were 
contnbuting factors in the director's overall determination. First, the director considered the petitioner's stage 
of development in light of its small staffing structure, finding that the petitioner's limited staff would likely 
preclude the beneficiary from being able to primarily perform duties within a qualifying capacity. Second, 
the director found that the petitioner failed to provide the specific information regarding the beneficiary's day- 
to-day job duties, noting that the lack of this necessary information precluded CIS from determining that the 
beneficiary does not primarily perform productive tasks of a non-qualifying nature. Lastly, the director 
accurately pointed out that the petitioner failed to specify the "administrative tasks" that consume 20% of the 
beneficiary's work week. 
On appeal, the petitioner's counsel challenges the director's findings and provides yet another job description, 
which also primarily consists of broad job responsibilities rather than specific tasks that illustrate how exactly 
the beneficiary will meet his responsibilities. More specifically, counsel asserts that the beneficiary prepares 
and presents an annual operation plan and a 3-year projection plan to the company's board of directors. While 
the presentation of the plan may be deemed a qualifjring task, it is unclear how the preparation of the plans 
also falls within the qualifjring category. Moreover, counsel failed to state what actual tasks are involved in 
the preparation of these plans and how much of the beneficiary's time is attributed to such tasks. Counsel also 
states that the beneficiary defines objectives and methods for achieving them. However, no information was 
provided as to the actual objectives the beneficiary has established, by what means the beneficiary establishes 
these objectives, which would indicate whether the duties associated with this task are qualifying, or the 
amount of time attributed to these unspecified tasks. 
Next, counsel points out the beneficiary's exercise of broad decision-making authority, a factor which is 
undisputed, despite the director's adverse decision. Moreover, authority over the petitioner's operation is not 
in itself a task, but rather a necessary component of being at the top of a hierarchical structure. That being 
said, the beneficiary's heightened degree of control over the petitioning entity does not preclude him from 
having to perform non-qualifying tasks. As such, the burden is on the petitioner to specify the actual tasks 
and to provide sufficient documentation establishing that the non-qualifying tasks do not consume the primary 
portion of the beneficiary's time, as one 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). Accordingly, while the beneficiary may use his discretionary authority to establish company credit 
policies, hire and fire employees, execute legal documents, and establish sales goals for the company, the 
petitioner is required to provide a detailed job description for the beneficiary's proposed position, which must 
include specific tasks to be performed daily. It is unlikely that setting sales goals, executing legal documents, 
and hiring and firing employees are daily tasks, and if they are, the petitioner should state as much and 
quantify the amount of time the beneficiary attributes to the performance of these tasks. That being said, 
counsel readily admits that various tasks are not performed daily. For example, counsel states that one 2-hour 
meeting is held weekly to address sales objectives and various credit issues, while reviewing the company's 
progress with key personnel occurs only once every three months. Thus, in reviewing the job description 
provided by counsel, the AAO has no clearer picture of the beneficiary's daily schedule than it did after 
reviewing the broad list of objectives provided earlier by the petitioner. 
Page 6 
While counsel cites 8 C.F.R. tj 204.50)(5), which stresses the petitioner's duty to provide a detailed job 
description for the beneficiary's proposed position, he continues to focus on discretionary authority as a sign 
that the position to be occupied by the beneficiary will be within a qualifying capacity. As previously stated, 
this understanding of the regulatory requirements is incorrect. While the petitioner's organizational chart 
supports counsel's assertion that the beneficiary supervises managerial employees, the broad job descriptions 
provided thus far fail to establish that such oversight duties comprise the primary portion of the beneficiary's 
time. Aside from weekly status meetings and quarterly personnel progress reviews, the record lacks further 
information to establish the means by which the beneficiary manages the subordinate personnel on a daily 
basis. 
Lastly, even if the petitioner were able to establish that the beneficiary's subordinate staff of four employees is 
adequate to relieve him from having to primarily perform non-qualifying tasks, the record does not contain 
documentation to establish that all five individuals were employed by the petitioner at the time the Form I- 
140 was filed. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). While the petitioner has provided quarterly wage reports 
to establish whom it employed directly prior to the filing of the instant Form 1-140 as well as a quarterly wage 
report showing whom it employed at the time the RFE was issued, there is no documentation showing whom 
the petitioner employed at the time of filing. The AAO cannot assume that all five individuals were 
employed during that crucial time without proper documentation, particularly in light of the second quarterly 
wage report for 2005, which shows that the petitioner had only three employees as of July 6, 2005, only 35 
days prior to the filing of the petition. While it is possible that the petitioner hired two additional employees 
between the July 6, 2006 (the date on the second quarterly wage report) and the date the petition was filed, 
additional documentation is needed to support such a claim. 
As previously stated, in examining the executive or managerial capacity of the beneficiary, CIS will look first 
to the petitioner's description of the job duties. See 8 C.F.R. tj 204.50)(5). In the instant matter, none of the 
descriptions provided contain sufficient detail to disclose the duties that will comprise the primary portion of 
the beneficiary's daily activities. This finding, coupled with the petitioner's failure to document its staffing 
structure at the time the Form 1-140 was filed, support the director's adverse decision. Therefore, based on the 
ground of ineligibility discussed above, this petition cannot be approved. 
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.