dismissed EB-1C Case: Fashion Accessories

U.S. Deoartment of Homeland Security 
identifying data deleted to 
prevent cle? rly unwarranted 
invssion d perswal privaq 
PUBLIC COPY 
20  ass. Ave.. N.W., Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 1 10 53679 Office: CALIFORNIA SERVICE CENTER Date: JUN 0 7 2005 
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. 9 I 153(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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 1 10 53679 
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DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Nevada corporation engaged in the business of wholesale fashion accessories. It seeks to 
employ the beneficiary as its 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. 5 11 53(b)(l)(C), as a multinational executive or manager. The director determined that the 
beneficiary would not be employed in a managerial or executive capacity and denied the petition. 
On appeal, counsel disputes the director's findings 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 issue in this proceeding is whether the beneficiary would be performing in a capacity that is managerial 
or executive. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
WAC 03 1 10 53679 
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(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. tj 1 I 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 petition, the petitioner submitted the following description of the duties to be performed by 
the beneficiary under an approved petition: 
The [bleneficiary's employment as the [plresident of the United States facility will be in an 
executive capacity. He will continue to be actively involved in the day-to-day operations of 
the business. He will personally supervise all employees and will have the authority to hire 
and fire and promote these employees. The [bleneficiary will also be responsible for 
developing and implementing company policy. As the [plresident, the [bleneficiary will be 
given discretion over the day-to-day operations of the company and will continue to report 
directly to the Board of Directors of the company. As such, the [bleneficiary will continue to 
be employed in an executive capacity in the United States. 
WAC 03 110 53679 
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On October 30, 2003, the director issued a notice requesting that the petitioner submit additional information. 
In regard to the beneficiary's position in the United States, the director instructed the petitioner to submit a 
more detailed description of the beneficiary's duties illustrating more clearly a typical day on the job. The 
director also requested a line and block organizational chart illustrating the beneficiary's position within the 
managerial hierarchy, listing the beneficiary's position and the positions of his subordinates, as well as brief 
job descriptions and educational levels of the beneficiary's subordinates. Additional documentation was also 
requested in the form of the petitioner's wage reports for the first quarter of 2003. 
In response, the petitioner repeated the job description offered earlier in support of the petition adding that the 
beneficiary would have a high degree of discretionary authority in regard to the goals and management of the 
company. The petitioner also added the following to the beneficiary's job description: 
[The beneficiary's] duties involve directing and coordinating national and international sales 
and marketing and client service activities for our company's products both in Asia and in the 
United States. He will continue to develop and establish a network of working relationships 
with suppliers and distributors in the United States to enhance the company's presence in the 
domestic and international markets. He will regularly meet with clients and manufacturers to 
discuss needs and market demands and to review results of past products. He will work with 
the other executives in our company to develop and implement marketing strategies based on 
current market developments within the area. He will engage in corporate marketing and will 
establish and implement new strategies for development and penetration of new markets such 
as alternative products, marketing and distribution plans, and resolutions of regulatory and 
operational issues. 
The petitioner stated that it could not sum up the beneficiary's "typical" workday, claiming that the 
beneficiary's tasks vary from one day to the next. The petitioner further stated that negotiating with financial 
institutions, addressing client concerns regarding sales and returns, and hiring and firing employees are all 
typical duties of the beneficiary. The beneficiary also submitted its quarterly wage statement for the first 
quarter of 2003 naming nine employees one of whom is not listed on the petitioner's organizational chart, 
which was also among the petitioner's submissions in response to the director's request. The organizational 
chart was broken down into four levels of employees with the beneficiary and an executive named as the first 
level employees. It is noted that the person named as the executive secretary does not appear on the 
petitioner's first quarterly wage report for 2003. Thus, there is no documentary evidence that an executive 
secretary was employed by the petitioner during the time period in question. The chart shows that the 
beneficiary's immediate subordinate is a purchasing manager who also has a secretary. Level two of the 
organizational chart lists an administrative manager, a management supervisor and one individual in IT 
support. It is noted that the management supervisor is not named in the petitioner's first quarterly wage report 
for 2003. Level three of the organizational chart lists a total of five employees-a clerk supervisor, two 
customer service employees, a clerk, and a shipping clerk. Of those five employees, only the clerk 
supervisor, one customer service employee, and the clerk appear on the relevant quarterly wage report. There 
is no evidence that the other customer service employee or the shipping clerk were employed by the petitioner 
at the time the petition was filed. Finally, level four of the organizational chart lists two sales representatives, 
one warehouse supervisor, and one cleaning lady. However, none of these employees was listed in the 
petitioner's first quarterly wage report; nor was any other evidence provided documenting their employment. 
While the petitioner provided a number of W-2 wage statements, all of the statements were for the year 2002 
and are, therefore, irrelevant in the instant proceeding, as the petition was filed in 2003. 
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On February 23, 2004, the director denied the petition. Based on 2003's third quarterly wage report the 
director noted that a number of the employees listed in the organizational chart are not documented in the 
petitioner's wage report. 
On appeal, counsel fails to address the obvious discrepancies between the petitioner's organizational chart and 
its quarterly wage reports from 2003. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner's failure to address the inconsistencies between its 
own claims and the documents it submitted gives rise to questions regarding the petitioner's true staffing 
structure during the relevant time period. 
Counsel also asserts that every company needs to have multiple executive and managerial employees and 
states that a company cannot be comprised of only lower level employees. While counsel is correct in 
pointing out that organizations need managerial and executive employees to oversee work being done by 
lower-level employees, the number of managerial employees should be justified by the needs of the 
organization and should be proportional to the size of the overall work force. In the instant case, the 
petitioner's organizational chart suggests that over 30% of the petitioner's work force is comprised of either 
managerial or executive employees. Moreover, the chart illustrates a managerial hierarchy where the 
purchasing manager supervises the administrative manager and the management supervisor. The petitioner 
has not demonstrated that it has progressed to a complexity level that would warrant a management structure 
where one managerial employee supervises other managerial or supervisory employees. Further, the 
petitioner has submitted no documentary evidence to establish the employment of a management supervisor, 
as the person named in this position does not appear on the petitioner's wage report for the first quarter of 
2003. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 3 204.5(i)(5). In the instant case, the description of the 
beneficiary's job duties is too broad to convey a realistic understanding of what the beneficiary actually does 
on a daily basis. 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. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). The petitioner's description of the beneficiary's duties lacks the necessary specifics. For instance, 
the petitioner provides no indication of the actual tasks the beneficiary would perform in his effort to "devise 
strategies and formulate policies;" nor is there any indication of the types of policies the beneficiary would 
formulate. While these vague job responsibilities imply a definite degree of discretionary authority, they are 
not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? Moreover, the petitioner's vague description of duties suggests that the beneficiary will continue 
to carry out certain marketing and customer service related duties, none of which can be deemed managerial 
or executive. 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 employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). In the matter at hand, the petitioner's 
failure to provide a detailed list of the beneficiary's duties prevents the AAO from being able to determine 
how much of the beneficiary's time is spent performing non-qualifying duties. As such, the AAO cannot 
WAC 03 1 10 53679 
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affirmatively determine that the beneficiary primarily performs managerial or executive duties. For this 
reason the petition cannot be approved. 
Notwithstanding the director's decision, the director concluded that the employees under the beneficiary's 
supervision cannot be deemed managers "because they are not managing professional employees." 
(Emphasis added in original). However, the definition of managerial capacity contained in section 
101(a)(44)(A) of the Act applies to the beneficiary of the present petition and not to his subordinate 
employees. Based on the director's reasoning, no beneficiary would qualify as a manager if the organization's 
ultimate, lower tier subordinate was not a professional, managerial, or supervisory employee, regardless of 
how many layers of management lay between the beneficiary and the non-professional employee. According 
to the director, each tier of management would be disqualified as the first-line supervisor of non-professional 
staff. The director's comment, however, reflects an inaccurate interpretation of the law and, therefore, will be 
withdrawn. 
Nevertheless, 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.