dismissed EB-1C Case: Dairy Products Distribution

DATE: 
NOV 1 5 2012 
IN RE: 
U.S. I)epartment of Homeland Security 
U. S. CitizenshIp and Immigration Services 
Admini"trative Appeals Office (AAOJ 
20 Ma"sachusclb Avc. N.W .. MS 209() 
Vv'ashinglon. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)( I )(C) of the Immigration and Nationality Act. 8 U.s.c. § 1153(b)( I )(C) 
ON BEHALF OF PETITIONER 
INSTRUCTIONS 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or it motion to rcopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F,R, § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § I 03.5(a)(I lei) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
i~ X Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
,,,·ww.uscis.gov 
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 engaged in the distribution and trade of dairy products, and it seeks to employ the 
beneficiary as its 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. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition on August 16, 2011, determining the following grounds of 
ineligibility: (1) the petitioner failed to establish that the beneficiary's employment abroad was 
within a qualifying managerial or executive capacity; and, (2) the petitioner failed to establish that the 
beneficiary's proposed employment with the U.S. entity would be within a qualifying managerial or 
executive capacity. 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least I 
year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(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 two issues that will be addressed in this proceeding call for an analysis of the beneficiary's job 
duties. Specifically, the AAO will examine the record to determine whether the petitioner submitted 
Page 3 
sufficient evidence to establish that the beneficiary was employed abroad and would be employed in 
the United States in a qualifying managerial or executive capacity. 
Section 10 I (a)(44)(A) of the Act, 8 U.s.c. § I 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: 
(ii i) 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. § 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 examining the executive or managerial capacity of the beneficiary, users will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal the 
I 
Page 4 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), ({trd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being said, however, 
uscrs reviews the totality of the record, which includes not only the beneficiary'S job description, 
but also takes into account the nature of the petitioner's business, the employment and remuneration 
of employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary'S actual role within a given entity. 
The definitions of executive and managerial capacity have two parts. First, the petitioncr 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 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Ine. v.INS. 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30,1991). 
In the present matter, an analysis of the record does not lead to an affirmative conclusion that the 
beneficiary was employed abroad or would be employed in the United States in a qualifying 
managerial or executive capacity. 
With regard to the foreign position held by the beneficiary, the petitioner provided a vague and 
general job description such as the beneficiary was responsible for "supervising and monitoring 
corporate governance including risk management and analysis. and compliance with applicable legal 
and regulatory requirements;" "managing the public image of [the foreign company];" "ensuring 
compliance with the documentation of policies and procedures;" and, "developing and revising the 
strategic and visionary plans for [the foreign company]." It is unclear which specific tasks actually 
fell within these broad categories and whether the supervisory tasks the beneficiary performed were 
of a qualifying nature. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary'S daily job 
duties. The petitioner has failed to provide any detail or explanation of the beneficiary's activities in 
the course of her 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), ({trd, 905 
F.2d 41 (2d. Cir. 1990). The petitioner's vague and general description of the beneficiary's position 
does not identify the actual duties performed, such that they could be classified as managerial or 
executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary was 
responsible for the "management of the company's financials including profitability, cash flow, 
financial targets, and financial growth;" "generating additional business opportunities for [the foreign 
company[ by networking with industry contacts;" "negotiating and approving contracts and 
agreements with suppliers, distributors, federal agencies, and state agencies;" "managing and 
directing supply chain issues;" "researching and analyzing industry trends and initiating appropriate 
strategies based on that research and analysis;" "directed the research regarding potential buyers in 
South Korea;" "establishing budgets and business growth;" and, "managing budgetary controls." As 
indicated in the organizational chart, the beneficiary supervised the director of sales and marketing 
and the director of documents and administration. The petitioner does not provide evidence that the 
petitioner employed individuals to assist with the finances, budgeting, bookkeeping, and importing 
and exporting operations and, thus, it appears that the beneficiary was performing the duties inherent 
Page 5 
in operating the business such as finances, customer service, negotiations, contracts, and importing 
and exporting operations, 
While the AAO acknowledges that no beneficiary is required to allocate 100% of her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to her proposed position. 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 
(8) 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). 
In the present matter, the petitioner has failed to establish that the beneficiary was employed abroad 
in a qualifying capacity. 
In addition, the petitioner has not established that it would employ the beneficiary in a managerial or 
executive capacity. In response to the request for evidence, dated March 30, 2011, the petitioner 
stated that the beneficiary's "duties and responsibilities will be almost identical to the duties she 
performed as CEO of the parent company in Canada." The petitioner goes on to repeat the duties 
presented for the beneficiary's position abroad as outlined above. Thus, as the beneficiary will be 
responsible for the financial operations, negotiation of contracts, business development, importing 
and exporting operations, and budgeting, the petitioner has failed to establish that the the beneficiary 
is relieved from performing the duties inherent in operating the business, rather than performing 
primarily qualifying duties. 
The petitioner submitted an organizational chart of employees supervised by the beneficiary and a 
brief description of their job duties. According to the chart, the beneficiary supervises a general 
manager, a director of sales and marketing, a director of logistics and documentation and a logistics 
specialist. However, in reviewing the Forms 941, Employer's Quarterly Federal Tax Return, for 
20 I 0, it appears that the petitioner did not employ the logistics specialist at the time of filing and 
employs the director of logistics and documentation on a part-time basis. Thus, the full-time 
employees supervised by the beneficiary are the general manager and the director of sales and 
marketing. In reviewing the brief job description provided for the subordinate staff, it appears that 
the beneficiary will be responsible for budgeting, negotiation and contracts, and for arranging the 
delivery of products for the import and export operations. As discussed above, the petitioner has not 
identified employees within the petitioner's organization, subordinate to the beneficiary, who would 
relieve the beneficiary from performing routine duties inherent to operating the business. For this 
additional reason, the appeal will be dismissed. 
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. ~ 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.