dismissed EB-1C Case: Exporting

jdentirj,ing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER 
 Date: APR 0 1 2009 
LIN 07 051 52139 
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: 
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. 5 103.5 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). 
John 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 Maryland corporation engaged in the business of acquiring and exporting various 
goods to China. It seeks to employ the beneficiary as its president and 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. 
5 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on the determination that the petitioner failed to establish that: 
1) the beneficiary was employed abroad in a qualifying managerial or executive capacity; and 2) the 
beneficiary would be employed in the United States in a managerial or executive capacity. In 
reaching these conclusions, it appears that the director relied heavily on the organizational 
hierarchies of each entity. That being said, the record shows that the director's observations with 
regard to the organizational hierarchy of the foreign entity were inaccurate. More specifically, the 
director observed that the foreign entity was comprised of five employees and found the foreign 
entity's organizational hierarchy to be lacking in complexity and, in general, incapable of having 
employed the beneficiary in a primarily managerial or executive capacity. A thorough review of the 
petitioner's supporting documents indicates that these findings were based on an erroneous 
determination of fact, as the submitted documentation establishes that the foreign entity was 
comprised of a total of 20 employees, thereby comprising a significantly more complex 
organizational structure than described by the director. In light of the director's error, the AAO 
hereby withdraws the first ground as a basis for denial. Therefore, the current decision will focus on 
the remaining ground as cited above. 
On appeal, counsel disputes the director's conclusions 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 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 calls for an analysis of the beneficiary's job duties. Specifically, 
the AAO will examine the record to determine whether the beneficiary 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. $ 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. 5 1 1 Ol(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 December 1, 2006, which 
includes the following description of the beneficiary's proposed employment: 
[The beneficiary] will continue to coordinate manpower and material planning to 
ensure the maximum efficiency in company operations. These functions will include 
business plan preparation, operational requirements, organizational structure, staffing 
and budgets. 
[He] will continue to maintain and develop strong mutually beneficial relationships 
with current and potential China customers . . . . In this position, [the beneficiary] has 
successfully exercised sole ultimate authority to enter into binding agreements. [His] 
decisions are critical to the revenue sources for [the petitioner]. Further developing 
the company's scope of services and product offering is also included among [the 
beneficiaryl's duties. . . . 
The petitioner also stated that the beneficiary would manage the company's three employees, which 
include a treasurer operations manager, a sales and services manager, and a marketing and public 
relations manager. The petitioner went on to say that the beneficiary will manage the company's 
essential function of product exportation as well as establish company goals and policies while 
maintaining discretionary authority over personnel and business matters. 
On March 19, 2007, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide, inter alia, the following documentation: 1) a more detailed description of the 
beneficiary's proposed employment with the U.S. entity, including a percentage breakdown 
indicating the time allotted to each duty; 2) a more detailed organizational chart illustrating the 
beneficiary's position with respect to others in the company; and 3) 2005 and 2006 W-2 statements 
for all employees listed in the petitioner's organizational chart. 
In response, the petitioner submitted a letter dated April 24, 2007 (exhibit A9, response to the WE), 
in which the following supplemental description of the beneficiary's job duties was provided: 
Executive/Managerial Tasks (30% of weekly work hours) 
Delegating specific duties to employees 
Page 5 
Reviewing performance of employees to determine whether salary raises and 
promotions are merited 
Reviewing, revising, and executing contracts, agreements, memos, proposals, etc. 
Setting monthly business goals for the company 
Working as a liaison officer between this company and its [foreign parent entity] 
Setting up and adjusting corporate development ventures 
Reviewing market research and analysis and reports concerning relevant products, 
prices, services and trends 
Acting as authorized signatory for all contracts, agreements, and official 
paperwork 
Strategic and policy-related tasks (30% of weekly work hours) 
Setting up and revising corporate policies and procedures when needed 
Implementing and enforcing policies and procedures of the company 
Setting up and adjusting organizational structure when necessary 
Review and revision of sales and marketing strategies 
Making plans to expand business into prospectively lucrative areas 
Encouraging creativity across the company 
Conferencing with subordinate management to discuss efficiency of strategies 
Negotiations and Relationships Tasks (20% of weekly work hours) 
Initiating and establishing new business relationships with prominent U.S. firms 
and Chinese purchasers 
Maintaining and developing stable and long-term relationships with major 
distributors and suppliers 
Maintaining and developing short and long-term relationships with buyers in 
China 
Maintaining constant contact with top officials of suppliers and buyers in regard 
to pending or prospective endeavors 
Page 6 
Lead negotiations of business transactions and contracts 
Monitoring product performance and capabilities and satisfaction of Chinese 
purchasing companies 
Attending various events and conferences on behalf of the company 
Visit and inspect U.S. suppliers and distributors 
Financial responsibilities (1 5% of weekly work hours) 
Review of all financial data, reports and accounting records kept by subordinate 
management and accountant 
Reviewing, revising and re-determining fiscal budgets for the company 
Monitoring business costs, revenues, profits, cash flows, and key financial ratios 
to ensure the financial health of the company 
Examining the [c]orporationls taxes, employees' insurances, pensions, 
commissions, bonuses and other benefits 
Meeting managers regularly to discuss financial status of the company 
Decisions regarding loans, lines of credit, etc. 
Personnel management tasks (5% of weekly work hours) 
Deciding on hiring and dismissal of employees 
Authorizing personal leaves and vacations of employees 
Providing resources and trainings for executives and managers 
Setting the ethical tone for the company; seeing to it that the company's 
management regulations are duly enforced 
The petitioner also provided a copy of its organizational chart depicting the beneficiary at the top of 
the company's hierarchy, presiding over two managerial tiers. The tier directly below the 
beneficiary's position includes the operations manager and the bottom tier includes a marketing and 
public relations manager and a sales and services manager. Despite the hierarchical structure of the 
managerial positions, it appears that all three managers are directly overseen by the beneficiary. As 
such, the AAO is unclear as to the significance of depicting the operations manager at a higher tier 
than the two remaining managers. Artificial tiers of subordinate employees and inflated job titles are 
not probative and will not establish that an organization is sufficiently complex to support an 
executive or managerial position. The petitioner provided 2006 W-2 wage and tax statements for 
each employee that was listed in its organizational chart. 
In a decision dated February 21, 2008, the director concluded that the petitioner failed to establish 
that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. The director's decision was primarily based on the petitioner's staffing composition, which 
the director found lacking in organizational complexity and therefore incapable of supporting the 
beneficiary in a managerial or executive capacity. 
On appeal, counsel argues that the director placed undue emphasis on the petitioner's size. Counsel 
cites an unpublished decision previously issued by the AAO in support of his assertion. However, 
unpublished decisions are not binding on USCIS employees in the administration of the Act. 
Furthermore, federal courts have generally agreed that USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to 
support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 13 13, 13 16 
(9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 
1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003). 
That being said, the AAO finds that the director failed to properly assess the content of the job 
description offered by the petitioner in response to the RFE. Accordingly, the AAO hereby 
withdraws the director's finding that the petitioner submitted a detailed description of the 
beneficiary's proposed employment and will enter a new finding accordingly. 
Despite the fact that the position description provided in response to the RFE was in compliance 
with the request for a percentage breakdown and was longer than the description provided earlier in 
support of the Form 1-140, a closer look at the content indicates an overall lack of a detailed account 
of the specific tasks that would consume the beneficiary's time on a daily basis in the context of the 
petitioner's current staffing composition. For instance, the petitioner indicated that a portion of 
executivelmanagerial tasks would include delegating tasks to employees and reviewing employee 
performances to determine the need for salary raises and promotions. However, with regard to the 
management of the staff members, the record does not establish that the beneficiary's subordinates 
are supervisory, professional, or managerial, despite the given position titles and educational 
credentials. The petitioner provided no information about the tasks or responsibilities of the 
subordinates, thereby precluding the AAO from being able to gauge their role in relieving the 
beneficiary from having to perform daily operational tasks. With regard to the performance 
evaluation of the subordinates, the AAO questions the amount of time needed to perform such 
evaluations given that the beneficiary has a total of three subordinates. The petitioner also stated 
that the beneficiary's managerial/executive tasks would include setting business goals, working as a 
liaison between the U.S. and foreign entities, and setting up and adjusting corporate development 
ventures. However, it is unclear how these broad statements translate into actual daily tasks in the 
context of the petitioner's importlexport operation. 
Similar deficiencies plague the second category-strategic and policy-related tasks-which states 
that the beneficiary would set up and revise corporate policies and procedures, implement those 
policies and procedures, make plans to expand the business, and encourage creativity. Again, these 
Page 8 
broad job responsibilities do not represent specific tasks the beneficiary would perform on a daily 
basis. In other words, the petitioner does not specify any policies and procedures, nor is any 
information provided as to the types of plans the beneficiary would make to expand business. In 
fact, it would seem that every for-profit business strives to expand and become more lucrative. The 
petitioner must describe the specific tasks the beneficiary would perform in the grand scheme of the 
petitioner's business operation. Lastly, the petitioner fails to explain how encouraging creativity 
represents a daily task(s). 
The AAO observes additional inadequacies with regard to the third category-negotiations and 
relationships tasks-which indicates that the beneficiary would perform operational, or non- 
qualifying tasks, including creating and maintaining business relationships with customers, 
distributors, and suppliers; leading contract negotiations; and visiting suppliers and distributors. The 
petitioner fails to explain how these tasks are executive or managerial. The AAO acknowledges that 
the beneficiary can be employed in a managerial or executive capacity even if some of his time is 
spent performing non-qualifying tasks. However, 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). 
In the present matter, the beneficiary's job description assigns a percentage of time to general 
categories, thereby precluding the AAO from being able to determine just how much time would be 
allotted to the items that comprise each category. Moreover, the petitioner's use of broad 
terminology to explain how the beneficiary's time within each category would be spent precludes the 
AAO from being able to gauge which specific job duties would consume the beneficiary's time. 
While the description of job duties, despite its lack of specificity, coupled with the beneficiary's 
placement within the petitioner's hierarchy adequately convey the beneficiary's discretionary 
authority, a detailed description of the proposed daily tasks is essential, as 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), afyd, 905 F.2d 41 (2d. Cir. 1990). The regulations expressly require 
that the petitioner provide a detailed description of the beneficiary's proposed job duties. See 
8 C.F.R. 5 204.5(j)(5). The purpose of this requirement is to enable USCIS to determine what the 
beneficiary would be doing on a day-to-day basis. The job description provided by the petitioner 
falls far short of establishing the beneficiary's daily activity and therefore does not meet the 
regulatory requirement discussed herein. Without this highly relevant and necessary information, 
the AAO cannot conclude that the beneficiary would be employed by the U.S. petitioner in a 
managerial or executive capacity. For this reason, the petition may not be approved. 
Lastly, while it appears that the petitioner has overcome the documentary deficiencies with regard to 
its qualifying relationship with the foreign entity, further review by the AAO indicates that there is at 
least one additional ground of ineligibility that was not previously addressed in the director's 
decision. Namely, by virtue of the beneficiary's direct majority ownership of the foreign entity 
resulting in his indirect ownership of the U.S. petitioner, it appears more likely than not that the 
beneficiary will not be an "employee" of the United States operation. As explained in 8 C.F.R. 
5 204.5(j)(5), the petitioner must establish that the beneficiary will be "employed" in an executive or 
managerial capacity. It is noted that "employer," "employee," and "employed" are not specifically 
Page 9 
defined for purposes of the Act even though these terms are used repeatedly in the context of addressing 
the multinational executive and managerial immigrant classification. Section 203(b)(l)(C), 8 U.S.C. 5 
1153(b)(l)(C), requires beneficiaries to have been "employed" abroad and to render services to the 
same "employer" in the United States. Further, section 101(a)(44), 8 U.S.C. 4 1101(a)(44), defines both 
managerial and executive capacity as an assignment within an organization in which an "employee" 
performs certain enumerated qualifying duties. Finally, the specific definition of "managerial capacity" 
in section 101 (a)(44)(A), 8 U.S.C. 5 1 101 (a)(44)(A), refers repeatedly to the supervision and control of 
other "employees." Neither the legacy Immigration and Naturalization Service nor U.S. Citizenship 
and Immigration Services (USCIS) has defined the terms "employee," "employer," or "employed" by 
regulation for purposes of the multinational executive and managerial immigration classification. 
See, e.g., 8 C.F.R. 5 204.5 and 8 C.F.R. 5 214.2(1). Therefore, for purposes of this immigrant 
classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 3 18, 322-323 (1 992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) ofAgency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at 5 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Page 10 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a corporation, which the petitioner claims is ultimately owned and controlled 
by the beneficiary, who purports to assume a role as the petitioner's principal. There is no evidence 
that anyone other than the beneficiary himself is in a position to exercise any control over the work 
to be performed by the beneficiary. As such, it appears the beneficiary is the employer for all 
practical purposes. He will control the organization; set the rules governing his work; and share in 
all profits and losses. 
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 
ground 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, affd, 
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.