dismissed EB-1C Case: Food Distribution

(b)(6)
DATE: 
JUL 2 5 2013 
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 FILE: " 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion 
to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 
days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms 
for the latest information on fee, filing location, and other requirements. See also 8 C.P.R. § 103.5. Do 
not file a motion directly with the AAO. 
Thank you, 
L~~ 
~on Rose berg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
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 engaged in the importation and distribution of olive oil, and 
it seeks to employ the beneficiary as its 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. § 1153(b)(l)(C), as a 
multinational executive or manager. 
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 in a qualifying managerial or executive capacity 
The director also found that the petitioner failed to establish that it has the ability to pay the proffered 
wage. The director noted in his denial that the petitioner failed to respond to the Notice of Intent to 
Deny. 
The petitioner contacted the service center and provided evidence that the response had in fact been 
submitted and requested a review of the file. The service center then issued a second denial advising 
that the petitioner's "appeal" was dismissed as a Form I-290B was not filed. The petitioner then filed 
a Form I-290B motion to reopen and reconsider with evidence that the response to the Notice of Intent 
to Deny was submitted as well as a copy of the response. The director granted the motion to reopen 
and reconsider, acknowledging that the response was submitted. The director found that the petitioner 
established that it had the ability to pay the beneficiary's proffered wage and withdrew his previous 
adverse finding. However, the director determined that the petitioner failed to establish that the 
beneficiary's duties are managerial or executive in nature and affirmed the denial of the petition based 
on this sole ground. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. Counsel attaches additional evidence in suppott of the appeal. 
I. THELAW 
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 
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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 the firm, corporation or other legal entity, or an affiliate or subsidiary 
of that entity, and 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 that 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. 
See 8 C.F.R. § 204.5U)(5). 
II. FACTS AND PROCEDURAL HISTORY 
The sole issue in this proceeding is whether the petitioner submitted sufficient evidence to establish 
that the beneficiary would be employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the 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 , subdivi sion, 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 
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NON-PRECEDENT DECISION 
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 . § 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. 
The petitioner indicated on the Form I-140, Immigrant Petition for Alien Worker, that it is engaged in 
the importation and distribution of olive oil with two employees and a gross annual income of 
$688,642. The petitioner states that it wishes to employ the beneficiary as its Chief Executive Officer. 
In a letter submitted in support of the initial petition, the petitioner stated that the beneficiary has 
discretionary authority with limited supervision from abroad to ensure company objective and goals 
are meet, as well as coordinating and implementing the overall operation and policies of the company. 
Specifically, the beneficiary will be responsible for the following duties: 
Oversee the development, and implementation of corporation operations in the US 
and coordinating the same with our parent company ... in Italy; 
Manage all recruitment, training and management of [the petitioner's] personnel in 
North America, including the sales department, logistics department, administration 
department, brokers, sales representatives and distributors; 
Represent [the petitioner] at conferences, industry events, etc.; 
Manage marketing, production, planning, logistics, budgeting, hiring and 
supervision responsibilities as well as oversee administrative operations, including 
the handling of personnel and general administrative affairs such as hire, supervise, 
and oversee regional coordinators and subordinates as the Company expands; 
Establish, implement and monitor administrative and corporate policies and 
procedures to ensure effective operations, and develop and implement plans for 
long-term growth and increased revenue and sales; 
Establish performance assessment, review and retraining protocol; 
Review reports submitted by staff members to recommend approval or to suggest 
changes; and 
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NON-PRECEDENT DECISION 
Review budgets for approval, including those for funding or implementation of 
programs. 
In support of the petition, the petitioner provided inter alia, a copy of its 2010 IRS Form 1120, U.S. 
Corporation Income Tax Return, the petitioner's organizational chart, a copy of the executive 
employment agreement between the petitioner and the beneficiary, and a copy of the beneficiary's 
resume. 
The petitioner's organizational chmt shows the beneficiary as President/CEO reporting to the Board of 
Directors. Reporting to the beneficiary is a Sales Manager. Reporting to the Sales Manager are three 
departments: (1) sales department/logistics department/administration department consisting of seven 
independent contractors; (2) brokers/sales representatives consisting of five independent contractors; 
and (3) "distributors per area" consisting of 25 independent contractors. The petitioner did not 
identify any specific independent contractors, their titles, or the duties they perform. 
The petitioners IRS Form 1120 for 2010 shows total salaries paid of $7,880 and $78,360 paid in 
compensation to officers. The petitioner did not provide evidence of payments to contractors and such 
payments were not clearly reflected in its corporate tax return. 
The executive employment agreement specifies that the beneficiary shall perform duties and 
responsibilities "as are customary for the officer of a corporation in the position of CEO." The 
petitioner's resume shows that she has served as President/CEO from August of 2007 to present. The 
duties listed include the following: managing a portfolio of global accounts in the North American 
Market; "personally opened" corporate accounts including small , mid-sized, and large food chains; 
management of marketing strategies, PR activities, advertising plans; logistic management; website 
development; overview quarterly economic and financial reports, annual budgets, and profit & loss 
statements; participation and collaboration in new products development and pricing policies; and 
creation and design of all point of sales materials. 
The director issued a Notice of Intent to Deny ("NOID") . The director requested that the petitioner 
provide, inter alia, evidence that the beneficiary will act in a qualifying capacity as a multinational 
manager. The director noted that the petitioner lacks the organizational complexity to warrant the 
employment of the beneficiary in a primarily executive of managerial capacity. 
The petitioner submitted a letter in response providing the same job duties as submitted with the initial 
petition . The petitioner stated that it has secured a number of additional accounts within the past year. 
The petitioner explained that the beneficiary's "services as head decision maker and chief liaison will 
be of utmost importance to the retaining, renewal, and expansion" of the new accounts as well as 
future accounts . 
In suppott of the response, the petitioner included copies of the vendor agreements as well as copies of 
its 2010 and 2011 IRS Form 1120, U.S. Corporation Income Tax Returns. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
The director ultimately denied the underlying petition, concluding that the petitioner failed to establish 
that the beneficiary would be employed in a qualifying managerial or executive position. In denying 
the petition, the director found that the petitioner failed to establish that the beneficiary would be 
performing duties that are executive or managerial in nature. 
On appeal, counsel asserts that evidence of record is sufficient to establish that the beneficiary will be 
acting in a primarily managerial or executive position. Specifically, counsel states that the evidence 
supports a finding that the beneficiary will be acting in a primarily managerial capacity. Counsel 
provides the same evidence as provided in response to the NOID regarding the additional accounts 
secured within the past year and the size of the petitioner's gross sales. 
Counsel supplies the same job description with percentage breakdown of duties as provided on the 
petitioner's initial petition and response to the NOID. Counsel asserts that the beneficiary will be 
managing subordinate managers and professional-level positions. The petitioner provides copies of 
brokerage agreements with the petitioner and five associations contracted to sell and market the 
petitioner's products. 
III. DISCUSSION 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would 
be employed in a managerial or executive capacity. 
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. § 204.50)(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), aff'd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being said, however, 
users 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). 
The beneficiary's job descriptions submitted in support of the initial petition and in response to the 
RFE were overly general and vague, and therefore do not convey a meaningful understanding of how 
much time the beneficiary will spend performing qualifying tasks versus those that would be deemed 
non-qualifying. For instance, the petitioner stated that the beneficiary will establish and implement 
and monitor corporate policies; manage marketing, production, planning, logistics, budgeting, and 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
hiring; oversee the development and implementation of corporate operations; and interview, hire, and 
train new employees. These duties provided little or no insight into what the beneficiary primarily 
does on a day-to-day basis or how she carries out her objectives as CEO. 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. The petitioner has failed to provide any 
detail or explanation of the beneficiary's activities in the course of her daily routine. The actual duties 
themselves will 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). 
The beneficiary's resume submitted with the initial petition provides a different description of her 
duties as the petitioner's CEO. The job duties on the beneficiary's resume indicate that she performs 
more of the actual administrative and operational functions for the petitioner, while the duties 
submitted in the petitioner's supporting letter show her performing more of a managerial role. 
Specifically, the beneficiary's resume states that she performs duties such as: managing a portfolio of 
global accounts in the North American Market; "personally opened" corporate accounts; website 
development; participation and collaboration in new products development and pricing policies; and 
creation and design of all point of sales materials. The beneficiary's resume calls into question 
whether she is performing primarily managerial or executive duties as claimed in the job description 
submitted in the petitioner's supporting letter, or whether she is primarily engaged in sales, marketing 
and other non-qualifying tasks. 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). 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 Int'l., 19 I&N Dec. 593, 604 (Comm'r 1988). 
Furthermore, it is not clear who will be performing the actual day-to-day operational and 
administrative work for the petitioning company. The petitioner claims that the beneficiary reviews 
reports submitted by depmtments; reviews budgets for approval; establishes performance assessments; 
manages recruitment, training, and management, of all petitioner's personnel; and manages marketing, 
planning, production, logistics, budgeting, hiring, and supervision. The petitioner claims to have one 
employee other than the beneficiary, namely a Sales Manager. The petitioner failed to provide any 
job description for the beneficiary's claimed subordinate. The petitioner fmther indicates that the sales 
manager oversees a total of 37 independent contractors in the sales department, logistics department, 
and administration department, as well as brokers/sales representatives and distributors. The 
petitioner has offered little evidence pertaining to most of these contractors or the nature of the 
services they provide, and thus has not established how they relieve the beneficiary from engaging in 
non-qualifying duties. 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'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). 
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Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional , or managerial. See§ 101(a)(44)(A)(ii) of the Act. 1 
The petitioner fails to provide any evidence that the petitioner will be superv1smg supervisory, 
managerial, or professional employees. The petitioner's organizational chart shows the position of 
Sales Manager repmting to the beneficiary. The petitioner has not provided any other evidence, 
duties, or terms of employment regarding this position. Without a position description or job duties 
for the position of Sales Manager, the AAO is unable to make a determination regarding whether the 
position is supervisory, managerial, or professional. The petitioner states that the beneficiary 
previously held the position of Sales Manager, but does not specify how the duties of this position will 
change with the new organizational hierarchy including the beneficiary as Chief Executive Officer. 
Furthermore, it appears from the organizational chart that the position of Sales Manager does not 
supervise any subordinate positions employed by the petitioner. Rather, the position manages 
contractors that in tum perform sales and marketing work for the petitioner. As noted above, the 
petitioner provided insufficient evidence regarding the nature of the services provided by contractors. 
The proposed position of the beneficiary is a Chief Executive Officer of an olive oil importer and 
distributor composed of one employee other than the beneficiary. The petitioner has not demonstrated 
that the beneficiary, as a personnel manager, will be primarily supervising a subordinate staff of 
professional, managerial, or supervisory personnel. See section 101(a)(44)(A)(ii) of the Act. 
Furthermore, the petitioner has not established that it will employ a staff that will relieve the 
beneficiary from performing non-qualifying duties so that the beneficiary may primarily engage in 
managerial duties. FUither, regardless of the beneficiary's position title, the record is not persuasive 
that the beneficiary will function at a senior level within an organizational hierarchy. 
On appeal, counsel for the petitioner claims that the beneficiary's position is executive in nature. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and 
1 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is actually 
necessary, for example, to perform the secretarial and administrative work of the office secretary, who is 
among the beneficiary's subordinates. Here, the petitioner failed to submit the requested position descriptions 
for the beneficiary's subordinates. Without the position descriptions, the AAO is unable to determine whether 
a bachelor's degree is actually required for performance of the subordinate's duties. 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)(l4). 
(b)(6)
NON-PRECEDENT DECISION 
Page9 
that person' s authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of that organization. Inherent to the definition, the organization 
must have a subordinate level of managerial employees for the beneficiary to direct and the 
beneficiary must primarily focus on the broad goals and policies of the organization rather than the 
day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as the owner 
or sole managerial employee. The beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization." !d. 
Given the conflicting information in the record regarding the beneficiary's duties and the petitioner's 
failure to provide position descriptions for the beneficiary's sole subordinate and evidence related to 
the majority of the claimed independent contractors used by the company, the petitioner has not 
established how the beneficiary is relieved from involvement in the day-to-day operations of the 
petitioning enterprise as the senior employee in a two-person company, or how the company's current 
organizational structure can support an executive position. The record establishes that the beneficiary 
exercises the appropriate level of discretionary authority over the company as its CEO, but fails to 
establish that her actual duties would be primarily executive or managerial in nature. 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity and the 
petition cannot be approved. 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed.