dismissed EB-1C Case: Fashion Jewelry

;'i2r;lifying, data deleted to 
Prcvcni cledy unwarranted 
invasion ofpersonal privacy 
U.S. Department of IIonieland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
EAC 04 122 50895 
IN RE: 
Date: MAR 0 5 2009 
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. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form 1-290B, 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 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont 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 engaged in the business of importing, exporting, and 
distributing fashion jewelry. The petitioner seeks to employ the beneficiary as its general manager. 
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. 
fj 11 53(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 it would employ the beneficiary in a 
managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief and additional documents 
in an effort to overcome the director's ground for denial. A full discussion of all relevant findings 
and submissions is provided below. 
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. 
Page 3 
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. 5 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 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 1101(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 a March 9, 2004 letter, which was submitted in support of the Form 1-140, the petitioner stated 
that the beneficiary would continue to hold the position of president and general manager of the U.S. 
entity. To more fully explain the beneficiary's position with the U.S. entity, the petitioner provided 
the following job description: 
[The beneficiary] has and will continue to supervise and oversee the daily operation 
of the U.S. business base of [the petitioner]. More specifically, [the beneficiary] is 
responsible for directing and managing the essential function of the daily operations 
of the [clompany, including conferring and strategizing with sales and marketing staff 
in full-filling [sic] the [clompany's goal of expanding the [plarent [clompany's client 
base in the United States ([wleekly: 8 hours); review daily activity reports produced 
by the [clompany's marketing and sales manager ([wleekly: 6 hours). An essential 
part of [the beneficiaryl's responsibilities includes evaluating performance of 
subordinate staff for compliance with established policies and objectives of the 
[clompany and contributions in attaining objectives. His responsibilities in the areas 
of management, marketing and sales requires, that he act in a very pro-active and 
hands-on capacity to ensure that these duties are properly carried out. [The 
beneficiary] will direct the [clompany objectives by determining production and 
marketing policies in terms of which product lines are to be promoted, negotiating the 
terms and conditions of contracts and contract renewals and researching more cost 
effective raw materials and means of transporting products from the [plarent 
[clompany's production facilities to the U[.]S[.] operation ([wleekly: 16 hours). 
Working closely with the [clompany's [blusiness [dlevelopment [alnalyst and 
[mlarketing and [slales [mlanager, [the beneficiary] formulates and implements 
short[-] and long[-]term marketing goals and strategies for increase product sales and 
conduct research on client satisfaction ([wleekly: 2 hours). [The beneficiary] has 
complete discretionary authority to hire, fire and delegate authority among his 
subordinates, including the authority to expand the workforce in the U.S. As such, he 
is responsible for planning long[-] and short-term business objectives in support of 
the [plarent [clompany's overall objectives for the U.S. operations and for 
establishing responsibilities and procedures for obtaining these objectives ([wleekly: 
6 hours). 
[The beneficiaryl's duties also includes establishing accounts for the long[-] and 
short-term investment of cash flow, directing regional and national market studies and 
reviewing and supervising the preparation of periodic overviews and reports relating 
to the [plarent [clompany's overall operations ([wleely: 8 hours). 
The petitioner also provided its organizational chart depicting the beneficiary in two separate 
positions as president and general manager. In the position of president, the beneficiary is shown as 
overseeing the foreign entity's vice-president, corporate secretary, and treasurer. In his position as 
general manager, the beneficiary is shown as overseeing a business deveIopment analyst, a 
marketing and sales manager, and an executive secretary/receptionist. 
On February 28, 2005, U.S. Citizenship and Immigration Services (USCIS) issued the first of two 
requests for additional evidence (RFE). In light of the petitioner's claim that the three most recently 
Page 5 
hired employees have relieved the beneficiary from having to perform non-qualifying tasks, the 
petitioner was asked whether the three employees named in its organizational chart were working for 
the U.S. entity at the time of the RFE. The petitioner was also informed that the information in its 
organizational chart was inconsistent with a Biographic Form G-325 belonging to -, 
the beneficiary's wife. More specifically, the organizational chart named g as the marketing 
and sales manager, indicating that she was working a 40-hour week, while her Biographic Form G- 
325, which was dated around the time the Form 1-140 was filed, identified her employment status as 
housewife. 
 The petitioner was asked to explain this apparent inconsistency. 
 Additionally, the 
petitioner was instructed to provide all W-2 Wage and Tax Statements showing wages paid to its 
employees in 2003 and 2004. 
In response, the petitioner provided a letter dated May 24, 2005, addressing the concerns brought 
forth in the RFE. First, with regard to the petitioner's employees, the petitioner stated that it has 
employed a total of six employees during the period of January 2003 through the date of the 
response letter. The petitioner claimed that of those six employees, three were remaining. The 
petitioner provided the following dates of employment for its past and current employees: 
It is noted that when comparing the information provided in the organizational chart submitted in 
support of the current Form 1-140 and the dates of employment disclosed above, the following 
inconsistencies were noted: 1) while the dates of employment for in No. 3 above 
indicate that this individual was employed at the time the Form 1-140 was filed, the organizational 
chart submitted in support of the Form 1-140 did not list this person as one of the petitioner's 
employees; 2) although the above dates of employment for the beneficiary's wife in No. 4 above, 
indicate that she did not start working for the petitioner until August 2004, she was included in the 
organizational chart submitted with the Forrn 1-140, which was filed on March 14, 2004; and 3) 
whiles dates of employment in No. 5 above indicate that she stopped working for the 
petitioner approximately 11 months prior to the date the Form 1-140 was filed, she was nevertheless 
included in the organizational chart submitted in support of the petition. 
 It is noted that the 
petitioner's reference to a high rate of staff turnovers does not resolve the inconsistency that is 
created with an inaccurate organizational chart, which lists employees whom the petitioner no longer 
employed or those whose employment had not yet commenced at the time the Form 1-140 was filed. 
The petitioner also reiterated that it seeks to employ the beneficiary in both a managerial and an 
executive capacity. With regard to the former, the petitioner claimed that the beneficiary would be 
responsible for the following: 1) managing the U.S. distribution operations, in an effort to achieve a 
level of sales that would cut out the middleman; 2) supervising and controlling the petitioner's 
personnel, including a business development analyst and a marketing and sales manager; 3) hiring 
and firing all personnel; and directing the petitioner's importing, marketing, and distribution 
activities. With regard to employment in an executive capacity, the petitioner focused on the 
beneficiary's discretionary authority in establishing and implementing the company's goals and 
policies and identifying any future business opportunities. 
With regard to the discrepancy concerning the petitioner's alleged employment of the beneficiary's 
wife, the petitioner claimed that the information provided in the Form G-325 was an unintentional 
error committed by counsel. Nevertheless, the petitioner maintains the argument that - has 
been a de facto employee since the company's inception and was simply not put on the company's 
payroll until August 2004. The AAO notes, however, that this explanation is not persuasive and 
cannot be proven without the aid of supporting documentation. Based on the petitioner's faulty 
reasoning, anyone can be claimed as a de facto employee without the burden of having to provide 
any documentary evidence to support such a claim. It is noted that going on 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 (Comm. 1998) (citing Matter of 
Treasure Cra t o Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Here, the petitioner readily 
admits that f did not become a paid employee of its organization until August 2004. As 
such, she cannot be deemed as one of the petitioner's employees when the Form 1-140 was filed. In 
the present matter, the petitioner has provided its quarterly tax returns for the first three quarters of 
2004. It is noted that the first and second quarterly tax returns show that the petitioner had only two 
employees during the first two quarters of 2004. It was not until the third quarter of 2004 that the 
petitioner hired two additional employees. It is noted that the Form 1-140 was filed during the first 
quarter of 2004 and that only the petitioner's staffing at that time can be considered for the purpose 
of determining whether the petitioner was eligible for the immigration benefit sought in the present 
matter. See Matter of Katighak, 14 I&N Dec. 45, 49 (Comm. 1971), concluding that eligibility must 
be established at the time of filing. 
On September 27, 2005, USCIS issued the second WE in which the petitioner was instructed, inter 
alia, to provide a detailed hourly breakdown of the job duties to be performed by the beneficiary in 
his proposed U.S. employment. The petitioner was also instructed to provide additional information 
discussing its management and personnel structure and to provide evidence if claiming that 
subcontractors were used to provide the petitioner with any services. 
In response, the petitioner provided a letter dated December 22, 2005. With regard to the WE 
request for a detailed hourly breakdown of the beneficiary's proposed job duties, the petitioner 
referred the director back to the job description that had been provided as one of the supporting 
documents appended with the Form 1-140 filing. It is noted that failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
tj 103.2(b)(14). Although the petitioner provided an organizational chart, the document is dated May 
2005, thereby indicating that the staffing structure illustrated is not representative of the staff that 
was in place at the time the Form 1-140 was filed. 
On August 14, 2006, the director issued a notice denylng the petitioner's Form 1-140 based upon the 
finding that the petitioner had failed to establish that it was able to sustain the beneficiary in a 
qualifying managerial or executive capacity at the time the Form 1-140 was filed. The director 
acknowledged that the petitioner failed to comply with the prior request for a detailed breakdown of 
the beneficiary's job duties, concluding that the statements previously provided identified only 
general managerial functions and failed to specify any bona fide managerial or executive tasks. 
- 
. Page 7 
On appeal, counsel contends that the job description provided earlier by the petitioner in support of 
the Form 1-140 was adequate, claiming that the director erroneously ignored this information as well 
as "the business realities of the petitioner's position" and the beneficiary's responsibilities regarding 
the petitioner's foreign affiliate. However, counsel's arguments are not persuasive. 
With regard to the job description previously provided, the director expressly stated that further 
detail was necessary in order to establish what specific job duties the beneficiary would perform. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. See 
8 C.F.R. 5 204.56)(5). While the job description provided by the petitioner adequately conveys the 
beneficiary's level of authority within the company, it does not specify actual tasks that the 
beneficiary would perform on a daily basis. The actual duties themselves reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Snvn, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afyd, 905 
F.2d 41 (2d. Cir. 1990). 
In the present matter, the information offered by the petitioner falls far short of the detailed 
description requested in the RFE. In fact, the general list of responsibilities that the petitioner has 
provided can apply to top-level managers or executives in any number of industries. The job 
description provided by the petitioner lacks any distinguishing characteristics that are indicative of 
an individual who would operate at the top of a hierarchy in a company that is engaged in the 
jewelry distribution business. The petitioner fails to convey a meaningful understanding of what 
actual tasks would comprise the beneficiary's daily activity. In fact, portions of the job description 
are entirely inconsistent with the organizational and staffing structure that was in place at the time 
the Form 1-140 was filed. For instance, the petitioner indicates that, on a weekly basis, 
approximately eight hours of the beneficiary's time would be devoted to conferring and strategizing 
with sales and marketing employees, another six hours would be devoted to reviewing activity 
reports produced by a marketing and sales manager, and 16 hours would be allotted to evaluating 
personnel performance and ensuring that employees properly carry out their sales and marketing- 
related duties. Thus, the petitioner has indicated that most of the beneficiary's time would be spent 
managing and supervising subordinate employees. However, as previously stated, the petitioner's 
staff at the time the petition was filed consisted of only one employee other than the beneficiary. It 
is implausible to expect that the beneficiary, with only a single subordinate, could limit his activity 
to mere management and oversight when the petitioner lacked a staff to carry out the essential 
operational tasks that are necessary for the petitioner's daily function. This lack of a support staff at 
the time of filing strongly indicates that the beneficiary would be primarily engaged in some or most 
of the petitioner's operational tasks. It must be 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). 
Furthermore, while the AAO is mindful of the high degree of discretionary authority that has been 
bestowed upon the beneficiary, this phenomenon is a likely byproduct of being employed in a 
company whose entire staff at the time of filing consisted of two people. Moreover, the beneficiary's 
discretionary authority does not establish that the job duties he would perform on a daily basis would 
be within a qualifying managerial and/or executive capacity. While the petitioner's staffing size is a 
factor in this decision, the petitioner's job description, its credibility, and the ability of the 
beneficiary to devote the primary portion of his time to performing qualifying duties remains the 
primary basis for the AAO's findings in this matter. Regardless, 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. U.S. Citizenship and 
Immigration Services, 469 F.3d 1313, 1316 (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). The 
AAO cannot overlook a deficient support staff as an important indicator of the petitioner's inability 
to relieve the beneficiary from having to primarily perform non-qualifying tasks. 
Counsel's arguments on appeal fail to recognize any of the shortfalls described above and are 
therefore not persuasive. Counsel's assertion that the "streamlined approach" has enabled the 
petitioner to operate more efficiently does not address the more relevant issue in the present matter, 
which deals directly with the nature of the job duties the beneficiary would perform under an 
approved petition. The record suggests that the petitioner had not reached a stage of development 
where it either required or could sustain the beneficiary in a managerial or executive capacity. 
While the AAO does not rule out the possibility that the petitioner may eventually grow into an 
organization where the top-level manager or executive primarily performs in a managerial or 
executive capacity, this goal had not been attained at the time this petition was filed. Therefore, the 
AAO finds that the director's decision was warranted and need not be withdrawn. 
As a final note, counsel makes references to the petitioner's current approved L-1 employment of the 
beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted 
that, in general, given the permanent nature of the benefit sought, immigrant petitions are given far 
greater scrutiny by USCIS than nonimmigrant petitions. Although the statutory definitions for 
managerial and executive capacity are the same, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive 
capacity. See $5 101 (a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 101 (a)(44). There are significant 
differences between the nonimmigrant visa classification, which allows an alien to enter the United 
States temporarily for no more than seven years, and an immigrant visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for 
naturalization as a United States citizen. Cf. $5 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; 
see also 5 3 16 of the Act, 8 U.S.C. $ 1427. 
In addition, because USCIS spends less time reviewing Form 1-129 nonimmigrant petitions than 
Form 1-140 immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29-30 (D.D.C. 2003) (recognizing that USCIS 
approves some petitions in error). The AAO is not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 
1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
Page 9 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof; each petition must stand on its own individual merits. USCIS is not 
required to assume the burden of searching through previously provided evidence submitted in 
support of other petitions to determine the approvability of the petition at hand in the present matter. 
USCIS denies many I- 140 immigrant petitions after approving prior nonimmigrant 1-129 L- 1 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of 
Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 
(E.D.N.Y. 1989). If the previous nonimmigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the approvals would constitute 
material and gross error on the part of the director. 
Finally, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
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.