dismissed EB-1C Case: Distribution

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identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Offe of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
MAY 0 6 2010 LIN 08 050 50392 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
PJSTRUCTIONS: 
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. 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
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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 Missouri corporation that seeks to employ the beneficiary as one of its field distribution 
managers. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition based on two 
independent grounds of ineligibility: 1) the petitioner failed to establish that the beneficiary was employed 
abroad in a qualifying managerial or executive capacity; and 2) the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and challenges the accuracy of the analysis that served 
as the basis for the denial. 
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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
would be employed in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 110l(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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) directs the management of the organization or a major component or 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 November 13, 2007, which included a 
brief description of the beneficiary's foreign and proposed employment with the U.S. entity. As the director 
included this information in his decision, the AAO need not repeat the job description in the current 
discussion. The director reviewed the job description and determined a need for further information. 
Accordingly, in a notice dated January 15, 2009, the director issued a request for additional evidence (WE) 
instructing the petitioner to supplement the record with a more detailed description of the job duties the 
beneficiary performed during her employment abroad and the job duties she would perform during her 
employment with the U.S. entity. The director expressly asked the petitioner to assign a percentage of time to 
each job duties. The petitioner was also instructed to provide organizational charts illustrating the 
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beneficiary's placement within the U.S. and foreign entities. The director provided specific instructions 
advising the petitioner of the specific information that was deemed essential and explaining what information 
the petitioner could omit if necessary. 
In response, the petitioner submitted a letter dated February 18, 2009, written by the 
petitioner's director of human resources. The letter expounded on the brief statements provided earlier to 
describe the beneficiary's employment abroad and her proposed position with the U.S. entity. - 
indicated that the beneficiary's foreign and U.S. positions involve similar tasks and responsibilities. He 
further explained that the beneficiary's job consists of two parts where the first part involves establishing field 
distribution offices in the desired locations and later closing the field offices upon conclusion of distribution 
operations. The second part of the beneficiary's job involves the actual management of distribution operations 
once the respective offices are opened for business. also provided a percentage breakdown of 
the elements that are involved in each of the two parts of the beneficiary's foreign and proposed positions. As 
the percentage breakdowns have been incorporated into the director's decision, the AAO need not repeat this 
information in the instant decision. 
The petitioner also provided an organizational chart that illustrates a multi-tiered organization with a 
hierarchy that places the beneficiary in a position that is directly subordinate to a division manager. The chart 
lists a delivery manager as the beneficiary's direct subordinate, a delivery supervisor as the delivery manager's 
subordinate, and delivery carriers and field staff members as the subordinates of the delivery supervisor. 
After assessing the petitioner's submissions, the director determined that the petitioner failed to establish 
eligibility and therefore issued a decision dated May 26, 2009 denying the petition. The director concluded 
that the petitioner failed to establish that the beneficiary's employment with the foreign entity had been and 
that her proposed position with the U.S. entity would be primarily within a qualifying managerial or executive 
capacity. The director noted that the petitioner failed to provide documentation establishing the employment 
of the 1,000 employees named in one of the petitioner's submissions or further evidence of the 26 employees 
Next, the director addressed the job descriptions the petitioner provided, noting that the petitioner failed to 
establish how much of the beneficiary's overall time is allocated to establishing field offices versus the time 
spent arranging for the delivery of telephone directories. The director surmised, based on the petitioner's 
statement of the number of field offices the beneficiary established, that the beneficiary spent and would 
spend "a substantial portion" of her work day establishing field offices. The director also found that the 
description of the remaining element of the beneficiary's position-management of distribution operations- 
was inadequate, as it is described using vague and non-specific statements. 
On appeal, counsel challenges the accuracy of the director's interpretation of the material presented in 
response to the RFE, asserting that a number of the director's adverse findings were based on the lack of 
documentation that had not been previously requested. Counsel specifically refers to the director's finding 
that the petitioner failed to provide documentation of the approximately 1,000 employees the petitioner listed 
in one of its submissions. Counsel accurately points out the RFE instruction that relieved the petitioner from 
having to provide such voluminous documentation and contends that no adverse finding should come from 
the petitioner's omission of unnecessary documentation. Counsel further contends that information about the 
beneficiary's position, and that as such, the petitioner is under no obligation to submit documentation of the 
26 employees who are part of a division that does not and did not pertain to the beneficiary. 
Next, counsel addresses the director's adverse findings with regard to the beneficiary's job descriptions. 
Namely, counsel states that the director misapplied the percentage breakdown based on the assumption that 
setting up field offices and managing them are responsibilities that the beneficiary carries out simultaneously. 
Counsel clarifies this misconception, explaining that the beneficiary first sets up the field offices and in the 
process of doing so, allocates her time to the four tasks that are necessary to set up or close down a field 
office. Counsel states that once the field office is set up with leased premises, furniture, office equipment, 
utilities, and communication services, the beneficiary then carries out the tasks that are required to actually 
manage the field office operation. 
In reviewing the supporting evidence in light of counsel's statements on appeal, the AAO finds that counsel 
has made valid points that help to clarify key aspects of the beneficiary's past and proposed positions. While 
the AAO concurs with counsel's assertion that the director's decision contained certain inaccuracies and 
certain findings that would not lead the AAO to make an ultimate finding that is unfavorable to the petitioner, 
the AAO finds that the director did not err in his overall conclusion with regard to the two grounds cited as 
the bases for denial. More specifically, the AAO finds that the petitioner has failed to meet key eligibility 
criteria in that it has failed to establish that the primary portion of the beneficiary's time was and would be 
allocated to the performance of tasks within a qualifying managerial or executive capacity. 
First, as noted above, the AAO acknowledges that the beneficiary's job is comprised of two separate parts, 
where one part includes setting up and closing down field offices and the second part includes managing the 
operations of those field offices in the interim. With regard to setting up and closing down field offices, the 
petitioner has provided an explanation of the underlying tasks the beneficiary has and would continue to carry 
out. However, as previously concluded by the director, the AAO finds that these tasks are not such that 
require the management of supervisory, professional, or managerial employees; nor are they the tasks 
involved in managing an essential function. While counsel may argue that the beneficiary's tasks fall within 
the latter category pertaining to a function manager, the AAO notes that the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
Here, the petitioner's explanation of the beneficiary's daily tasks during the course of setting up and closing 
down a field office are operational in nature in that the beneficiary performs them in order to ensure that the 
petitioner is able to provide its services on a daily basis. Both statue and case law have established that 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). 
Given the facts in the present matter, the petitioner has not provided an adequate explanation to clarify how 
much of the beneficiary's time is actually spent setting up and closing down field offices versus the time the 
beneficiary spends in the interim managing those field offices. While the AAO acknowledges counsel's valid 
point that the tasks required to set up and close down field offices are only performed during a particular 
phase of the business operation, the petitioner has failed to specify how much of the beneficiary's time has 
been and would be allocated to that particular phase. The petitioner stated that the beneficiary has set up and 
closed down 32 offices during the time period of September 2001 to January 2007. The AAO cannot 
determine that this aspect of the beneficiary's job is something that is merely incidental to her foreign and 
proposed positions. Therefore, simply based on an assessment of one aspect of the beneficiary's employment, 
the AAO cannot conclude that the primary portion of the beneficiary's time has been and would be spent 
carrying out tasks within a qualifying capacity. 
Notwithstanding the above conclusion, the AAO will provide the petitioner with a comprehensive analysis of 
the beneficiary's entire job description, which includes an assessment of the other phase of her job, which 
consists of managing a field office once it has been set up. Again, per 8 C.F.R. 5 204.5(j)(5), the AAO duly 
places considerable weight on the description of tasks and the corresponding percentage of time that is 
assigned to each given task. In the present matter, the director was correct in pointing out that the petitioner 
failed to provide a detailed description of the specific tasks that are involved in the second main component of 
the beneficiary's job. While the AAO is clear as to the degree of discretionary authority the beneficiary has 
over her subordinate personnel within the context of managing the field offices that are responsible for 
directory distribution, the beneficiary's specific daily tasks during this phase of her job require further 
clarification. It is noted that the actual duties themselves reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 4 1 (2d. Cir. 1990). 
In the present matter, the petitioner has failed to provide a list of specific tasks. For example, the petitioner 
indicated that 10% of the beneficiary's time during the management phase of the operation would involve 
arranging physical distribution of directories. However, it is unclear how exactly the beneficiary goes about 
making such arrangements and how, if at all, the beneficiary's subordinates relieve her from having to carry 
out daily operational tasks such as contacting the directory recipients. The petitioner indicated that another 
20% of the beneficiary's time is allocated to overseeing delivery managers in their administrative duties. 
However, the specific tasks that are involved in such oversight were not specified. The petitioner also failed 
to expressly delineate the tasks that are involved in managing payroll and other personnel issues, which 
consume 20% of the beneficiary's time. In other words, the petitioner did not state whether the beneficiary 
herself performs the payroll function, which would be deemed a non-qualifying task; nor did the petitioner 
indicate what types of personnel issues the beneficiary addresses, in addition to managing her direct 
subordinates, and what portion of this responsibility is devoted to the non-supervisory and non-professional 
field staff and delivery carriers who may fall under the beneficiary's supervision. 
In summary, the petitioner's discussion of the beneficiary's personnel management duties lacks overall clarity 
as to the types of tasks the beneficiary performed and would perform. Without a more definitive 
understanding of the beneficiary's specific daily tasks and the amount of time that was and would be allocated 
to those tasks, the AAO cannot conclude that the beneficiary was employed abroad or that she would be 
employed by the U.S. petitioner in a qualifying managerial or executive capacity. 
Accordingly, 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.