dismissed EB-1C Case: Construction Materials Import/Export

(b)(6)
DATE: DEC 1 3 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department Qf Homela~d Security 
U.S. Citizenship arid lmmigratioii Services 
Office of Admini strative Appeals 
20 Massachusetts Ave .• N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship . 
and Immigration 
Services · · 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuan( to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON B.EHALF OF PETITIONER : 
INSTRUCTIONS: 
Enclosed please find the decision of the Admini.Sttative Appeals Office (AAO) in your case. 
,· 
This is a non-precedent decision . The AAO does not announce new constructions of l~w nor est~blish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law: or 
policy to your qse 'ot if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively . Any motion must be filed on a Notice of Appeal · or Motion (Fbrm 
I-290B) within 33 days of the date of this decision . Please reView the Form 1-2908 instructions at 
http://www.uscis:.gov/forms for the latest .information on fee, filing location, and other tequitemerits. 
See also 8 C.F.R. § 1 03.5. Do not file a motion directly with the AAO. 
Thank you, 
~ltf-. Chief; Administrative Appeals Office 
www.usc;is.gov 
(b)(6)
NON-PRECE.DE.NT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the mattei is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be (iis(nissed. 
The petitioner is a Flo_tida corporation engaged in the import and export of construction materials and 
equipment. The petitioner states that it is a subsidiary of . located in Venezuela. 
The petitioner seeks to employ the beneficiary as its general manager. Accor:dingiy, the petitioner 
endeavor$ 
to classify the beneficiary as an employment-based immigrant. pursuant to se:ction 203(b)( I )(C) of the 
Immigration and Nationality Act (the Act); 8 U.S.C § 1153(b)(l)(C), as a mlll~in~tional executive .. or 
manager. 
Tne director (ienied the petition, finding that the petitioner failed to establish that it would employ the 
benefi¢iary in a qualifying managerial or executive capacity. The director also concluded that the petitidner 
failed to establish that beneficiary had been ·employed abroad in a managerial .or executive capacity fo~ at 
least one of the three years preceding the beneficiary's admission into the United ~tates a_s an L-:lA 
nonimmigrant intracompany transferee, Finally, the director found that the petitioner failed to demonst;ate 
that the foreign employer is doing business as defined by the regulations. · 
On ~ppe(ll, counsel contends that the director misinterpreted the case law and evidence. Counsel asserts that 
the director overlooked evidence establishing that the beneficiary was employed abroad and Will • be 
employed in the United States, in a qualifying managerial or executive capacity. Coun.sel also (lssert ,s that the 
director overlooked substantial evidence on the record establishing that the foreign employer conducts 
business regularly, systefilalic;ally, and continuously. 
I. The Law 
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 prec~ding the time of the 
aiien's application for classifiCation and admission into the United States 
under this subparagniph, has been employed for at least 1 year by a firm or 
corporation or other leg~! 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 einployer or to a subsidiary or affiliate thereof in a capacity that is­
managerial or executive. 
_, 
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Page 3 
The language of the statute is speCific in limiting this provision to only those ex_ecutives and managers wll.o 
have previously worked fot a firm, corporation or other legal entity, ot a:n affiliate or subsidiary of that entity, 
a_nd who 11re corning to the Unit~d States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition' on Form I-140 for classification of an allen under section . . . . ) 
203(b )( 1 )(C) of the Act. as a rimitinational executive or manager. No iabor certifiCation is .requited for (his 
· classification. The prospective employer in the United States must furnish a job offer in the form of a 
s.ta:teiTlerit which indicates that the alien is to be employed in the United States in 11 rnllnaget'ial or executive 
capaCity. Such a st(lteme.ntmust clearly describe the duties to be performed by the alien . 
.Section 10l(a)(44)(A) of the Act, 8 U.S.C. § ll0l(a)(44)(A), provides: 
The term "managerial cap_a:city'' means lin assignment with.i_n · aQ ¢rgaQiZ(ltion in which the · 
employee ptin1_al:'ily-"" 
(i} manages the organization, ·_or a department, subdivision, function, or 
component of the organization; 
(li) supervises and controls . the work of other supervisory, professional, or 
managerial employees, or m;mages an essentilll funct_ion within the 
organiz;ltion, or a depllttrnent or subdivision of trye 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), ot if no other employee 
is directly supervised, f\lnCtions (lt a senior level Within t_he organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the dll.y-to;,.day operations of t_he <tCtlvlty ot 
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 
Sl!pervisor's supervisory duties unless the employees supervised are 
professional. 
·Section l01(a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B), provides: 
The terrn "executive · capacity" means an assignment within an organization in which the • 
employee primarily ·-
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(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 e)(ecutives, 
the board. of directors, or stockhOlders of the organiz~tion. 
Finally, if staffing level.s a.te used as a factor in determining whether an individual is acting in a managerial 
or executive ¢;:tpacity, USCIS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. Section 10i(a)(44)(C) of the Act. 
II. The Issues on Appeal 
A. Foreign employer doing business 
The first issue to be addressed. is whethe-r the pet_itioner oa~ established that the foreign employer is doing 
business as defined by the regulations. 
The regulation at 8 C.ER. 204-:SU)(Z) defines "doing business," in pertinent part, as the regular, systematic 
and continuous provision of goods and services. In denying the petition, the director noted the petitioner's 
f&ilure to submit sufficienr documentation to establish that the foreign employer currently provides goods or 
services. 
On appeal, counsel asserts that the director overlooked evidence on the record establishing that the foreign 
employer is doi_og business in a regular, systematic, and continuous fashion. 
Based on a review of the record, the petitioner has submitted suffici_ent evidence to est(lblish by a 
preponderance of the evidence thatthe foreign employer is doing business as defined in the regulations. 
In support of the petitiOn, the petitiOner submitted documentation relevant to the foreign employer's 
operations, including the company's payroll r~ords fo.r 2012 and 2013 all<:i various .invoices and shipping 
documents, but failed to provide certified translations of these documents. Although the petitioner has st.ill. 
failed to provid.(! certified tral)slations of Cyrtain documents relevant to the foreign employer's operations, .the 
petitioner has submitted translated accountings ofthe foreign employer's monthly sales tl:ir:oughout 2012 i:!-nd 
2013 along with corresponding invoices for thes~ sales . . The most recent documentation submitted for 
February 2013 indicates that the foreign employer h~d 909,531.87 Venezuelan Bolivars in sales during that 
month, and in the previous month, an accountant indicates that the foreign empioyer had 1 ,496,640,25 
Venezuel~n Bolivars in sales. Further, t)le petitioner has submitted substantial foreign payroll documentat"ion 
(b)(6)
NON~PREC£DENT D£CISION 
Page 5 
from 2.012 and 2013 supporting a conclusion that the foreign employer regulwly employed a substantial 
mirrtber of employees. In sum, the petitioner has submitted sufficient evidence to establish by a 
preponderance of the evidence that tl)e foreign employer is doing business. 
As such, based on the foregoing, the director's finding that the petitioner failed to establish th.at the . foreign 
employer was doing business is withdrawn. 
B . . U.S. employment In a managerial ot execu~ive capacity 
The next issue to be addressed is whether the peti~ioner has established that it will employ the beneficiary in 
a qualifying managerial ot executive capacity. 
In denying the petition, the director stated that the petitioner had submitted a vag·ue dt1tY description for' the . ' 
benefida:tfs proposed position which failed to demonstrate his day.to,day activities. Additionally, the· 
director found that the petitioner did not have sufficient staff to relieve the beneficiary from prim~rily . . 
performing non-qualifying openitional duties. 
On appeal, counsel states that the director overlooked the fact that the petitioner utilizes the s.ervice~ Of 
independent contractors who perform operational duties for the business. Counsel contends that the ditectofs 
conclus'ion was based solely on the size of the petitioner's business, and that the director over emphasized the 
, , . I . 
non-managerifiJ nature of two tasks within the beneficiary's duty description th,at take l.,lp only .10% of: his 
time. Counsel states that the beneficiary's primary function is to perform qualifying duties related to 
plannin~, organizing, directing and controlling the petitioner's m.ajor functions through the direction of 
subordinate employees. Couns.el asserts that the evidence shows with a preponderance of the evidence that 
the beneficiary is primarily involv¢d in essential and controlling functions for a large and complex busi~ess 
enterprise and thereb.y qualifies as a manager or executive. 
Upon review of the petition and the evidence, and for the reasons discussed herein, the petitioner has not 
established that it will employ the b¢neficiary in a qualifying managerial or executive capacity. 
·In order to determine whether the beneffcia!y would be employed in a qua_iifying executive or managerial 
capacity, U.S. Citizenship and Immigration Services (USCIS) will look fi,rst to the petitioner's description of 
the job duties. See 8 C.F.R. § 204.5(j)(5). In support of the petition, the petitioner described the 
beneficiary's dU.ties in his proposed capacity as general manager, including percentages of time he wiU spend 
on each task: 
. 15% Prepare the business Plan for start operations ofthe new company 
10% Execute strategic plan by implementing short and lofig.,terril goalS that aJign with 
the scope of service, mission and values ofthe company. 
(b)(6)
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NON-PRECEDENT DECISION 
.5% Initiates strategies as necessary, according with the business plan, as to employ 
new personnel, put into operation new regulations, arrange new investments, 
between others. 
5% Direct and coordinate the m(l[j]or company activities inCluding hire, supervise 
and evaluate the professional performance of the executives. 
5% Schedule me~tings and presentations to meet and evaiuate potential suppliers. 
5% Research and analyze the market in the Florida area, in. order to incorpor(lt~ new 
prodllctive negotiations for the company 
10% .Prepare and present the annually [sic] projection and global strategies of the 
company · 
5% Analyze, develop and'execute newaUiances to increase the intemationai business 
opportunities and profitability for the company. 
5% Periodic review of financial statements and data related to the incomes and 
expenses .in order to take financiai decisions. 
5% Implement innovating techniques to ensure and improve the company goals. 
10% Monitor general operations ex~cuted in order to align procedures to the plan 
projects. 
5% Direct, forr11ul.at~ and continuously update the company policies and procedt1res 
in favor of the financial improvement. 
5% Oesign and apply the incentives and promotions plan of tile employees and 
planning the training required. 
5% Provide positive and constructive feedbac_k to the personnel by coaching, 
. mentoring, counseling or corrective guidance (l_nd action, as appropriate. 
5% Ensure a safe work environm~ht for employees by enforcing the execution of all 
safety programs and makes recommendations for changes as necessary 
The 
petitioner also provided a separate listing of the beneficiary's daily duties througho(lt a typiclil forty h~mr 
work week. The additional duties included: meeting with executives and managers to discuss matters and 
resolve issues; coordinating with an export management company in ''high-tech compliCations''; 
"formulating strategies (lnd policies of how to receive new clients and retain oid"; preparing <1I1d presenting 
to the board all payments made · to employees, utility services, and professional services; conducting 
meetings with subordinate personnel; supervising the sales and marketing department to assure consistent 
flow of Information and ilttilinment of sales goals; preparing and creating adequate busine.sS transactions for 
clients in Venezuela; and procurin~ the development and growth of business. alliances in industri~s related 
. with auto parts. FUrther; the petitioner stated the following with respect to th.e duties the beneficiilry 
petfotrils on a typical Wednesday: 
• Provide all required support/control for the logistic qep(lrtment of our main 
offices in Venezuela and the alliance office for the export of all orders of said 
offices, she [sic] prepares all the exports information to our offices in Venezuela 
(b)(6)
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NON-PRECEDENT DECISION 
and coordinate [sic] with our for the shipment of 
said exports in coordination with parent company. 
• She [sic] is in charge of the expansion of our customers' database a,nd our 
Cl1Stomer's satisfaction and discusses details of sales 
~ Attend clients for the second ti,ine a week, and solve t,~p only complicated issues. 
• Develop ways for increasing inven.tory curves and reduce levels on hand for 
Petitioner as she [sic] did for parent company in order to organize the chain 
distribution properly. 
Addition~,tlly, on appeal, the petitioner offered the folloWing with respect to the beneficiary's duties: 
All the company's functions, including customs brokering, freight forwarding, etc. are 
performed by outside contractors at the ctirection of the beneficiary. The beneficiary ... 
doesn't perform any ofthese functions himself but directs these contractors to take action 
when he deems appropriate to do so. It should be noted these duties are not auxiliary or 
.clerical in nature; however, it constitute[s] the essential functions necessary fot t_he 
· Sl1Ccessfl11 operation of the business . 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibiHties a.nd does :not 
spend a majority of his or her time on day-to-day functions. Champion Wotld, Inc v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Following a revjew of th~ beneficiary's stated duties the petitioner has provided little det1'lil regarding the 
beneficiary's day-to-day dutjes. ReCiting the beneficiary's va~ue job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations requite a detailed description of the beneficiary's daily job duties. 
' The ma.jotity of the duties provided in the petitioner's letter are too genentl to establish the nature of the 
actual tasks the beneficia.ry will perform. For example, the petitioner stated that the beneficiary allocates 
15% of his time to "prepare the business plan," 10% of his time implementing short- and long-term goals, 
5% of his time to initiating strategies, 5% of his time to "direct and coordinate the major company activities, 
5% of bi.s time to "monitor ge~eral operations," 5% ofhis time to "implement intlovating techniques to ... 
improve the company goals," and 5% of his time to ''direct, formulate and continu~msly upciate the company 
policies." These duties, comprising half of the beneficiary's time, merely paraphrase the statutory definition 
of "executive capacity'' and offer little insight into what the beneficiary actually does on a day-to-day basis. 
Cotichtsory assertions reg~ding the beneficiary's employment capacity are not suffiCient Merely repeating 
the language of the. statute ot regulations does not satisfy the petitioner's burden of proof Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp.l103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2cJ 41 (2d. Cir. 1990}; Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N. Y.). 
(b)(6)
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Page 8 
Further, although the petitioner provided a day-by-day description of the beneficiary's duties in support of the 
_ petition, this dese>ription included a number of duties that do not coincide with description of the 
ben_eficill,ry's responsibilities provided elsewhere on the record_, which ll,re ex<.>erpted herein. In fact, to the 
extent the petitioner has provided details with respect to the beneficiary's proposed duties, these du~ies 
support that the beneficiary will perform a nl,Jmber of non-qualifying operational tasks directly invoJyed in 
. I 
the performance of serVices or provision of goods. The petitioner did not attempt to reconcile the two 
different versions of the beneficiary's position description. As such, it is unclear which, if either represents 
an accur~te picture of his actual duties. 
For example, as reflected in the excerpts specified above, the petitioner indicated in the weekly . breakdown 
that the beneficiary is focvsed on such operational activities such as · providing "all requited supporVcontrol 
for the logistic dep~rtment of our main offices in Venezuela and the alliance office for the export of all orders 
of said offices,'; "preparing all the exports information to out offices in Venezuela," coordinating with 
for the shipment of exports, preparing business transactions for the 
Venezuelan parent company, and directly coordinating with an export management companies. The 
·petitioner further stated th~t the beneficiary attends to client matters at least twice per week; "is in charge of 
the expansion of our customers' database and our customer's satisfaction and discusses d.e~~ils of sales,'' ~nd 
''deVelops ways for incre(lsing inventory curves ... to organize the chain distribu~ion_." Also, on appeal, 'the 
petjtioQer emphasizes the beneficiary's .focus on daily operational aspects of the company, noting that -he 
regularly coordinates with customs brokeririg and freight forwarding companies to perform operational 
functions related to the export arid import of goods. In sum, the duties provided by the beneficiary, in t~eir 
totality, support a conclusion that he spends a significant amount of time on the perfonfiarice of n~m · 
qualifying operational dvties. 
Further, the petitioner introduced a third position description in response to the director's request for evidence 
(RFE) issued on February 5, 2013. The petitioner stated that the beneficiary's duties included planning the 
business of the cbmpim)'; carrying out evaluations of department performance, developing goals and 
objectives, anll,lyzing company results, opening and managing bank accounts, cootdin~ting with 'the 
administrative offices, creating and m~intaining good relations with clients and suppliers, controli'lng 
subordinates' activities, protecting the conditions of the company, supervising departments, and hiring and 
firing employees. Again, the petitioner did not attempt to reconcile this description with those provided at 
tl)e time of filins and failed to include any specifics. 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. Overall, the petitioner has failed to' provide suffici~nt 
detail' regarding, or corroborate, the beneficiary's acHvities in the course of his daily routine . the actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 124 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
'· 
Based on the current record, the AAO is unable to determine Whether the benefjciary's claimed managehal 
duties Will constitvte a majority of his time, or whether the beneficiary will primarily perform non'" 
(b)(6)
NON-PRECEDENT DECISION 
Page9 
managerial administrative or operational duties. When read together, . the petitioner's various d~spriptions of 
the beneficiary's job duties do not establish what proportion of his duties would be managerial in nature, ~nd 
what proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 
199I). 
Beyond. the requi_red description of the job duties, USCIS reviews the totality of the record when examin}ng 
the cl;,.imeo managerial or executive capacity ofa benefici'!,l)', including the company'.s organizational 
st~1,1cture, the d'uties of the beneficiary's silbordina~e employees, the presence of other empioyees to relieve 
tpe beneficiary from performing · operlHiona( diJties, the nature of the business, and any otherfactors thl!t ~ill 
contribute to a complete understanding of a beneficiary's actual duties and role in a bus_iness. I .' 
The petitioner sUbmHted a..n organizational chart showing three employees directly subordinate to the 
beneficiary, including a purchase and sales executive, an assistant manager, and an administrative executl~e. 
Further, the organizational chart depicts a purchase assistant and a customer service employee subordinate to 
the purchase and sales executive, and an administrative assistant subordinate to the adminiStrative execut~: ve. 
On appeal, the petitioner indiCates that it also utilizes independent contractors to support tl:le beneficiary's 
managerial or e.xecutive position, specifically, c.ontractors from customs broketing and freight forwarding 
comp,anies. Counsel states that in addition to six full-time employees, the petitioner "uses independent 
contractors to perform all its necessary functions in order to export and sell its products in Venezuela:· 
Counsel notes that the petitioner provided evidence that it utilizes the services of a Florida storage comp<i:_ny 
and an accounting service. 
By asserting that the petitioner engages another level of employees in the form of independent contractors , 
. . . I . 
counsel suggests that the petitioner has sufficient employees to raise tile beneficiary to level beyond that 6f a 
first-line supervi~of of non-professional employees, or that the beneficiary qualifies as a pe.tSOIJilel manager. 
The statutory definition of ' ' nianage~i::tl capacity" allows for bo.th "personnel managers i• and a "function 
managers." See section I01(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § ll0l(a)(44)(A)(i) and (ii). Person .hel 
managers ate required to primarily supervise and control the work of other _ supervisory, _ professional ,, o~ 
managerial employees. Contrary to the common understanding of the word "manager," the statute pla..inlY 
states that a "first line supervisor is n<;>t considered to be acting in a managerial capacity merely by virtue; of 
the supervisor's supervisory duties unless the employees supervised are professionaL" Section 
I 0 I (a)(44)(A)(iv) of the Act; 8 C.F.R. § 204.5U)(2) . If a beneficiary directly supervises otper employees, the 
beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and 
take other personnel actions. 8 C.F .R. § 204.5(j)(2). The term ;,profession" contemplates knowledge . or 
learning, not merely skill, of an advanced type in a given field gained by a prolonged course of specialized 
instruction and stuoy of at least baccalaureate level, which is a realistic prereq\Jisite to entry into the 
particular field of endeavor. Matter of Seq., 19 I~N Dec . 8I7 (Comm'r I988); Matter ofLing, 13 I&N Dec. 
35 (R.C. 1968); Matter of Shin, II I&N bee . 686 (D.D. 1966). 
The beneficiary's duties and evidence submitted with respect to the petitioner's organi.zation<J,l structure and 
operations leave question as to whether the beneficiary primarily supervises and controls the work of other 
man'!.geri&l, supervisory and professional 
employees as necessary to qualify him ('!.S a personnel manager. For 
(b)(6)
NON-PRECEDENT DECiSION 
.Page 10 
instance, previous to the appe<.tl, the petitioner ma~e no mention of its engagement of independent contractors 
to supplement the operation of the business. Further, the petitioner provides no documentation to support the 
regul<.tr eng~gement of these contractors. In fact, the petitioner's 2012 IRS Form 1120 U.S. Corpotat.ion 
Income Tax Return reflects that the petitioner reported $70 in expenses for "outside services" during the 
preceding year and $0 in expenses on "legal and professional Services." J:h~ petitioner has also provided no 
documentation to support the regular export of goods from the United States beyond a series of Invoices 
reflecting a few Srria:ll transactions and the unexplained charging of rent to a Mr. 
Additioilally, bank s~atements submitted by the petitioner do not include expenses indica .tive of <ctn export <~,nd 
import company, but largely reflect personal expenses. Lastly, the petitioner has not submitted evidence to 
establish that any of the beneficiary's subordina .tes qualify <.tS professionals. As such, the petitioner has not 
established that the beneficiary would · qualify as a person11el manager . Going on record without supporting 
docuJI1entary evidence is not sufficient for purposes of meeting the burden of proof in these proceedi'n:gs. 
MatterofSoffici, 22l&N Pee. 158, 165 (Comm'r 1998) (citingMatterofTreasure Craft ofCalifornia, . l4 
I&N Dec. 190 (Reg. Comm'r 1972)). 
On appeal, counsel contends that the director's decision placed undue einphasis on the small size of ~he 
business in finding that tbe beneficiary would not act in a qualifying managerial · or executive capacity. 
Counsel correctly observes that a company's siz~ alone, without taking into account the reasonable needs of 
tbe org11,nization, may not be the determining factor in denying a vis(.l to a multio.<.ttiOnal manager or 
executive. See§ 10l(a)(44)(C) of the Act, 8 U.S.C. § 110i(a)(44)(C). However, it is appropriate fot USCI~ 
to consider the size of the petitioning company in conjunction with · other relevant factors, such as a 
company's small personnel size, the absence of employees who would petfoiiil the non-managerial or n~m­
execu.tive operations of the :company, or a "shell company" that does not conduct business iri a regi.Ilat and 
continuous manner . See, e.g. Family Inc. v. US (:IS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 
153 F. Supp. 2d 7, 15 (D.D.C. 2001 ). The size of a company may be espeCially relevant when USCIS notes 
discrep<c1ncies in the record and fails to believe that the facts asserted are true. See Systron,ics, 153 F. Supp; 2d 
Mli . . 
The director based his decision, in part, on the petitioner's failure to establish that it had sufficient employees 
to perform the operational duties of the business necessary to raise the beneficiary to a managerial or 
executive position beyond that of a first-line supervisor. Further, the director noted that the beneficiary's 
duty description reflected that the benefiCiary was more likely than not performing non-qualifying duties .. 'As 
I . 
discussed herein, the petitioner failed to substantiate its claitn that the beneficia_ry wou.ld be employed i_n a 
quaJifyi'ng managerial or executive capacity based upon the inconsistencies in the submitted job destriptiqns, 
the vague nature ofall three submitted job descriptions, and its failure to support its claims regarding its ~se 
of independent contractors. As such, counsel's assertion that USCIS has in<.tppropriately considered the size 
of the petitioner's business in reaching a decision is not persuasive. 
In conClusion, the petitioner has failed to establish that the beneficiary will act in_ a qualifying manageiial or 
executive capacity in tbe United States. For this reason, the appeal will be dismissed. 
(b)(6)
NON-PRECEDENT DECISION 
Page II 
. B. Mariagen3l or executive capacity with the foreign employer 
The next issue to be adqressed is whether the petitioner has established that the beneficiary was emplored 
abroa.c:l iil a qualifying managerial or executive capacity for at least one year In the three years precedi-ng his 
admission to the United States. 
In concluding that the petitioner had not established that the beneficiary had acted in a _ manageriar or 
executive capacity with the foreign employer, the directOr noted that the petitioner submitted a non.dspecific 
duty description for the beneficiatY,'s in his previous role as general manager. Further,. the· director stated that 
the petitioner had. faikd to demonstrate thar the beneficiary had profession_ai subordinates and tha:t: he 
ptilllarily perfotrned exeCutive or managerial duties. 
On appeal, co~nsel asserts that the director overlooked that the beneficiary was engaged by the foreign . \. . ' ' 
employer in a managerial or exec.utive capacity for several years prior to his entry into the United States as a 
nonimmigrant intracompany transferee. 
Again, in order to <ietermine . whether the beneficiary would be employed in a qualifying executjve; or 
managerial capacity, U.S. Citizenship and Immigration Services (USCIS) will look fjtst to tbe petitioner's 
· description of the job duties. See 8 C.F.R. § 204.5(j)(5). In conCluding that the petitioner had faileq to 
demonstrate that the beneficiary was employed by its foreign parent company in a qualifying executive. or 
managerial capacity, the director noted the vague nature of the beneficiary's position description submitted in 
response to the director's RFE. In the RFE, the director had requested that the petitioner submit a definitive 
statement from the foreign employer describing the beneficiary's title, his specific · daiiy job duties, arid ~he 
percentage of time he spent on each specific task. In response to the RFE, the petitioner provided ~he 
following explana~ion of the beneficiary's duties in his former capacity as the foreign entity's general 
·manager: 
I. To plan the business of tl)e company. 5% . 
2. To carry out, from time to time, evaluations on the performance of the supervised 
departments. 5% . . 
3. To plan and develop short4ertn 'and middle-tei'Iil goats and a.nnual objectives, and 
submit the projection of such goals for its approval. 5% 
4. To an(llyze the results of.thecompany's activities and operations. 5% 
5. To open, manage and close current bank accounts. 5% 
6. To coordinate with administrative offices to ensure that the records and toe (lnalysis 
of thereof are being performed properly. 5% 
7. To create and maintain good relations with diems and providers for the best interest 
of the company. 5% 
8. To control the activities carried out by his suborcjin(ltes both in the operational and 
administrative areas. 5% 
(b)(6)
Page 12 
NON-PRECEDENT DECISION 
9. To take any step that he may deem necessary to improve or protect the conditions of 
the company. 5% 
10. To manage and supervise tQ.e departmentunder his control. 25% 
11. To hire and fire cemployees as he may deem necessary in the best interests of the 
L-- . 
' organization. S% 
12. To analyze, develop and execute new alliances to increase the business opportunities 
and profit(lbility of the company. 5% · 
13. To provide positive and constructive feedback to the managers by coaching, 
mentqring, counseling or corrective guidance and action, as appropriate. 5% 
14. To ensure as safe work environment for employees by enforcing the execution of all 
safety programs and makes recommendations for changes as necessary. 5% 
15. To assess financial risk and opportunities of the account and communicates re.sults to 
the clients and shareholders; initiates action plans as necessary. 10% 
Again, rec_iting the beneficiary's vague job responsibdities or broadlyccast business . objectives is pot 
sufficient;· the regulations require a detailed description of the benefkiary's daily job duties. As noted by the 
director; the duties offered for the beneficiary in respon_se to the director's RFE, such as pianning ihe 
business of the company, planning and developing short-term and middle-term goals and ann.t~al objectives, 
analyzing the results of the company's activities and operations, controlling activities · carried ou_t • by 
subordinates, taking steps to improve and protect the conditions of the company, enSuring a safe work 
environment and assessing financial risk are overly vague and provide little probative value as to the 
beneficiary's day-to-day activities. As such, in response to the director's request, the petitioner failed to 
provide meaningful detail necessary to convey the beneficiary's former daily activities abroad. Falh1r~ to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § l03.2(b)(14). . . 
Fot instance, the petitioner failed to articulate specifi~ activities and opetatjons the beneficiary analyzed, 
steps he took to improve the com·pariy, safe(Y policies he implemented or enforced, or financial issues'· he 
handled. It is reasonable to expect . tha~ the petitioner would provide more specifics regarding the 
beneficiary's p(lSt actions and accomplishments in his capacity as general manager abroad, since he is 
asserted as having worked in this capacity from June 2006 through September ZOl L Also, the petitioner has 
provided no documentation to support his performance of the duties set forth in his duty description. Indeed, 
the petitioner .states in the duty deScription that 25% of the beneficiary duties were devoted to ''manag[lng] 
and ~upervis[ing] the department under his control." However, the foreign employer's organiZational ch(l_rt 
does not reflect tbe beneficiary at · the head of a department, but acting as both the president and gen¢ral 
manager, overseeing the entire foreign company. SpecifiCs are clearly ali important indication. of whether a 
.I 
beneficja:ry's duties are primarily executive or managerial in · nature. Overall, the petitioner ha§ failed to 
. ,.. '· : 
provide sufficien~ detail regarding, and .corroborate, the beneficiary's activities i.n the course of his daily . . ~ 
routine. The actual duties themselves will reveal the true nature Of the employment. Fedin Bros. Co., Ltd\ v; 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
(b)(6)
NON-PRECEDENTDECISION 
Page 13 
On ap~al; the petitioner does not specificaliy contest the director's finding that the petitioner failed. to 
establish 
that the beneficiary was employed in a managerial or executive capacity abroad , but only vaguely 
. states that the director overlooked the evidence. The AAO does not find this assertion persuasive. In fact; as 
noted above, the director stated in both the RFE and hjs decision, that the petitioner had failed to sufficiently 
articulate the specifics of the benyficiary' s duties abroad. However, the petitioner fails to address this 
finding on appeal. The AAO will not disturb the decision of the director as it concurs that t.h¢ du~ie~ 
provided, for th¢ benefici4fY's position with the foreign entity are overly vague and provide l_ittle probative 
value as to the beneficiary's actual day-to-day duties as the corilpany'sgenefalinanager. 
As such, the petitioner has not established that the forejgn entity employed the beneficiary in a qualify,ng 
managerial or executive capacity. For this additional reason, the appeal mu~t be dismissed . 
. III. Conclusion 
The appeal , will be dismissed for the above stated reasons; With each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to estabiish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
• •