dismissed EB-1C Case: Export/Purchasing

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
identifying data dejeted to 
O!ce 0fAdmlnrstratzve Appeals MS 2090 
rev ent clearly unwarranted 
Washington, DC 20529-2090 
P- invasion of pe~~~na\ privacy 
 u. s. Citizenship 
~0l"a and Immigration 
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OFFICE: NEBRASKA SERVICE CENTER Date: 
LIN 07 052 51476 
 JUL 2 8 2009 
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: 
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. tj 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, as required by 8 C.F.R. 103,5(a)(l)(i). 
$&! F. Grissom 
Acting Chief, Administrative Appeals Office 
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 California corporation that seeks to employ the beneficiary as its executive vice 
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. 8 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 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 both grounds of the denial, providing clarification regarding the 
beneficiary's role and the role of his subordinates during the beneficiary's employment with the 
foreign parent entity. After a thorough and comprehensive review of the petitioner's submissions, 
the AAO finds that sufficient documentation has been provided to establish that the beneficiary was 
more likely than not employed abroad in a qualifying managerial or executive capacity. Therefore, 
the AAO hereby withdraws the first ground as a basis for denial. However, the AAO cannot make a 
similar finding with regard to the beneficiary's proposed employment, which will be the primary 
issue addressed in this discussion. 
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. 
As stated above, the main issue in this proceeding calls for an analysis of the beneficiary's proposed 
job duties to determine whether the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. $ 1 101 (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; 
(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. § 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 
Page 4 
(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 14, 2006 in which a 
broad description of the beneficiary's proposed employment was provided. As the director 
incorporated key portions of the petitioner's position description into his decision, the AAO will not 
repeat the same information in the present decision. The petitioner also provided its organizational 
chart showing the beneficiary as the head of the U.S. entity, which appears to include two 
locations-a New York office and the main office headquartered in California. The New York 
office appears to be staffed with a single employee in the position of branch manager. Although a 
business development position and a purchasing and export position are included as prospective 
positions to be filled at the New York location, neither position was filled at the time the petition 
was filed. The petitioner's headquarters office is comprised of an accounting department, which 
shows a single employee, and an export/purchasing department, which identifies a purchasing 
control supervisor, an export license coordinator and purchasing employee, and an administrative 
employee. 
On July 20, 2007, the director issued a request for additional evidence (RFE) instructing the 
petitioner to clearly define the specific job duties the beneficiary would be expected to perform in his 
proposed position with the U.S. entity. The petitioner was also asked to assign a time constraint to 
each of the listed job duties and to provide the job titles, job duties, and minimum position 
requirements that apply to the beneficiary's subordinate employees. 
In response, counsel for the petitioner provided a letter dated August 2 1,2007 in which he stated that 
the minimum requirements for administrative and sales positions are a high school education and 2-3 
years of experience, while the supervisory and/or specialty positions may require a baccalaureate 
degree. Counsel listed all of the positions that were included in the previously submitted 
organizational chart as the beneficiary's subordinates. Counsel provided a brief delineation of the 
beneficiary's job duties, claiming that 20% of the beneficiary's time would be devoted to meetings 
and conference calls, operational management, and business development, respectively, for a total of 
60% of the beneficiary's time. The remaining 40% of the beneficiary's time would be evenly 
distributed among human resources management, visiting vendors and approving final products, 
budgeting and financial reviews, and market research. 
Counsel also attempted to provide a sample daily schedule for the beneficiary, claiming that after 
addressing daily correspondence, which generally consumes approximately an hour to an hour and a 
half, the beneficiary attends a 9 a.m. meeting with the purchasing control supervisor and branch 
manager. Counsel claimed that this meeting is followed by a conference call with the president and 
board of directors of the foreign entity to discuss sales and expenses, purchasing and exporting 
activities, and customer trends. Counsel further claimed that the beneficiary often has working 
lunches when he meets with vendors. After lunch, the beneficiary is claimed to either meet with 
clients or review reports prepared by the business development manager and branch manager. 
On December 26, 2007, the director issued a decision denying the petition based, in part, on the 
finding that the petitioner failed to establish that it would employ the beneficiary in a qualifying 
Page 5 
managerial or executive capacity. The director noted that a statement from counsel regarding the 
beneficiary's job duties is insufficient and further found that counsel's statements lacked the 
necessary degree of detail. See 8 C.F.R. 5 204.50)(5), requiring that the petitioner provide a detailed 
description of the beneficiary's proposed job duties. Specifically, the director noted that while 
counsel assigned a percentage of time to each of seven general functions he used to describe the 
beneficiary's proposed employment, he failed to specify the tasks associated with such functions. 
With regard to counsel's attempt to describe the beneficiary's typical day, the director found that this 
description was also deficient, as it failed to identify the beneficiary's specific tasks in relation to the 
topics discussed during meetings and conferences. The director also found that the petitioner failed 
to establish that any of the beneficiary's subordinates are supervisory or professional employees. 
On appeal, counsel asserts that the record is clear about the beneficiary's autonomy and authority in 
making all business decisions. Counsel further explains that the beneficiary assumes a decision- 
making role during meetings with customers and company employees. Counsel claims that the 
beneficiary decides the ultimate resolution or course of action to be taken and further states that there 
is no other employee within the petitioning entity that can assume this role. 
Counsel's statements, however, are not persuasive in determining that the beneficiary's proposed 
employment with the U.S. entity would be in a qualifying managerial or executive capacity. While 
the beneficiary's discretionary authority is highly relevant to the present discussion, in examining the 
executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration Services 
(USCIS) will look first to the petitioner's description of the job duties. See id. Precedent case law 
has firmly established that the actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 11 08 (E.D.N.Y. 1989), a-d, 905 F.2d 41 (2d. Cir. 
1990). In the present matter, the director's adverse findings were primarily based on the deficient job 
description, not on the beneficiary's lack of authority. Thus, merely establishing that the beneficiary 
is at the top of the petitioner's organizational hierarchy and is the organization's top decision maker 
does not warrant approval of the petition. Rather, the petitioner has the burden of establishing that 
the primary portion of the beneficiary's time would be spent performing job duties within a 
qualifying managerial or executive capacity. It is noted 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). 
Here, the director made a number of specific observations that were intended to point out the 
numerous deficiencies in the beneficiary's job description. A review of the petitioner's submissions 
indicates that the director's findings were accurate. Instead of assigning time constraints to specific 
daily tasks, counsel provided a percentage breakdown of general job responsibilities, which were 
accompanied by an inadequate attempt at providing a sample schedule of the beneficiary's daily 
activities. With the exception of indicating the amount of time that would be assigned to the 
morning administrative tasks, counsel failed to specify the length of time that would be consumed by 
the beneficiary's meetings with the purchasing control supervisor and branch manager. Counsel also 
failed to specifically discuss how frequently such ,meetings take place and how the beneficiary's 
oversight of the purchasing control supervisor and branch manager is a qualifying task, given the 
lack of evidence to establish that these employees are supervisory, professional or managerial, 
regardless of what their position titles may indicate. There is also no clarification as to how often 
the beneficiary has conference calls with the president and board of directors or how much of the 
beneficiary's time is attributed to these conference calls on a weekly or daily basis. Additionally, 
counsel's claim that the beneficiary would review reports prepared by the business development 
manager and branch manager requires further explanation, as the record shows that the petitioner did 
not employ a business development manager at the time of filing. The AAO notes that 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. Mutter of Kutigbak, 14 I&N Dec. 
45, 49 (Comm. 1971). While counsel generally disputes the director's adverse findings, he simply 
fails to add any information to facilitate a meaningful understanding of the beneficiary's daily tasks, 
focusing instead on the beneficiary's degree of authority and the petitioner's need for the beneficiary 
to continue to fulfill his role as the head of the company. In summary, counsel's general claim on 
appeal, that sufficient information was provided to establish that the beneficiary's U.S. employment 
has been and will continue to be within a managerial capacity, is not corroborated by the evidence of 
record. As such, the AAO cannot approve the instant petition. 
Furthermore, the record does not support a finding of eligibility based on at least one additional 
ground that was not previously addressed in the director's decision. Specifically, the regulation at 
8 C.F.R. 5 204.5Cj)(3)(i)(D) states that the petitioner must establish that it has been doing business 
for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.5(j)(2) states that 
doing business means "the regular, systematic, and continuous provision of goods and/or services by a 
firm, corporation, or other entity and does not include the mere presence of an agent or office." In the 
present matter, the Form 1-140 was filed on December 11, 2006. Therefore, the petitioner has the 
burden of establishing that it was doing business as of December 2005. Although the record contains 
invoices and shipping documents from April through September 2006, this only accounts for six 
months of a 12-month period. The AAO also acknowledges the petitioner's submission of several 
tax returns, financial reports, and bank statements. However, these documents do not show the 
frequency of the petitioner's sales and/or shipping transactions. As such, the petitioner has not 
provided sufficient documentation to establish that it has been conducting business during the time 
period and in the manner prescribed by regulation. 
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), afd, 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. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
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.