dismissed EB-1C Case: Fashion Jewelry

DATE: NOV 3 0 2012 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Innnigrant 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. § 1153(b)(J)(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 a motion to reopen in 
accordance with the instructions on Form 1-290B, 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. § J03.5(a)(1)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
~, Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a New York corporation that is engaged in the import and export of fashion 
jewelry, and 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. § IIS3(b)(l)(C), as a multinational 
executive or manager. 
On October 27, 2011, the director denied the petItIon concluding that 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. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. 
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) 
thro ugh (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding 
the time ofthe 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)(I)(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 
Page 3 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
The issue that will be addressed in this proceeding calls for an analysis 0 f the beneficiary's job 
duties. Specifically, the AAO will examine the record to determine whether the petitioner 
submitted sufficient evidence to establish that the beneficiary would be employed in the United 
States in a qualifYing managerial or executive capacity. 
Section 1 01 (a)(44)(A) ofthe Act, 8 U.S.C. § 1101 (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 ofthe 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 ofthe 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 frrst-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) ofthe Act, 8 U.S.c. § 11 01 (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; 
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(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, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal 
the true nature of the employment. Fedin Bros. Co" Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being 
said, however, USCIS 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 petitioner 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, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30,1991). 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a managerial or executive capacity. When examining the executive or 
managerial capacity of the beneficiary, the AAO wi11look first to the petitioner's description of the 
job duties. See 8 C.F.R. § 2l4.2(1)(3)(ii). The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are either in 
an executive or managerial capacity. Id. 
Due to the overly general and vague list of job duties, the AAO is unable to gain a meaningful 
understanding of how much time the beneficiary will spend performing qualifYing tasks versus 
those that would be deemed non-qualifYing. 
For instance, in describing the beneficiary's position in the United States, the petitioner stated that 
the beneficiary "determines and formulates policies and provides the overall direction of company 
within the guidelines set up by a board of directors"; "plans, directs or coordinates the operational 
activities at the highest level of management with the help of subordinate executive and staff 
managers"; "preparing strategies on how to increase current business with existing customers as 
well as how to seek out new customers"; "establishing long term business strategies to assure 
company survival in an unstable economy"; and "maintaining effective business strategies and 
countermeasures in order to adapt to the rapidly changing business climate." It is unclear which 
specific tasks actually fall within these broad categories and whether the supervisory tasks the 
beneficiary will perform are of a qualifYing nature. The record is similarly lacking in specific 
information about the job duties involved in securing the growth of the petitioning entity. Going on 
Page 5 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Cornm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
The job description also includes several non-qualifying duties such as the beneticiary will be 
responsible for "working on sales and marketing strategies, and communicating with buyers to 
identify and solve problems on an ongoing basis"; "tinal confirmation and responsibility relating to 
all fmancial management of the office"; and "continually working with the technicians and staff at 
all factory facilities to develop new techniques, processes and treatments in order to maintain the 
most current, state of the art facilities and techniques at each location." The petitioner does not 
provide sufficient evidence that the petitioner employs individuals to assist with the import and 
export operations. The petitioner does not describe any individual that handles the ordering, 
inventory, customs and shipment operations. Thus, it appears that the beneficiary is performing the 
duties inherent in operating a business such as sales, customs, shipment and inventory. An 
employee who "primarily" performs the tasks necessary to produce a product or provide a service is 
not considered to be "primarily" employed in a managerial or executive capacity. See sections 
I 01 (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). 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to his 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 
IOI(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 at the time 
of filing the petition it was able to employ the beneficiary in a qualifying capacity. 
Furthermore, the director requested a more detailed explanation ofthe duties to be performed by the 
beneficiary but in the response to the director's request, the petitioner provided the same job duties 
as submitted with the initial petition. Failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
The petitioner also provided an organizational chart which indicated the beneficiary as president 
who supervises the general manager who in turn supervises the designer. The organizational chart 
also listed several positions that would "be recruited." In response to the director's request for 
evidence, the petitioner submitted a second organizational chart. In this chart, the beneficiary as 
President supervises a general manager who in turn supervises the designer and sales manager. 
However, according to the Form 941, Employer's Quarterly Federal Tax Return, for the first two 
quarters of2011, it appears that the petitioner employed 3 individuals. The Form 1-140 was filed on 
March 7, 2011, and at that time, the Form 941 indicated that the beneficiary employed three 
individuals and did not employ the sales manager. The petitioner did not employ a sales manager 
Page 6 
until the third quarter of 2011. The petitioner has failed to establish that at the time of filing the 
petition it was able to employ the beneficiary in a qualifYing capacity when it did not have a sales 
manager or a sales team to assist the beneficiary in the sales operations. 
Beyond the decision of the director, the petitioner did not sufficiently establish that the beneficiary 
was employed abroad in a qualifYing managerial or executive capacity for at least one out of the 
three years prior to his entry to the United States as a nonimmigrant to work for the same employer. 
The information provided about the beneficiary's employment abroad consists of general statements 
that fail to clearly delineate the beneficiary's specific job duties. Without this information, the 
AAO cannot conclude that the beneficiary was employed abroad in a qualifYing managerial or 
executive capacity. Conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfY the 
petitioner's burden of proof Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), qffd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). The actual duties themselves will reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
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), a/I'd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004)(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. 
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.