dismissed EB-1C Case: Food Distribution

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: Office: TEXAS SERVICE CENTER Date: FEB 0 1 2008
SRC 05 021 50352
INRE: Petitioner:
Beneficiary:·
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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 .
....-.. _=~~.
/~~
R'obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The
petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was dismissed. The
petitioner subsequently filed a motion with the AAO seeking to reopen and reconsider the prior decision
dismissing the appeal. The AAO granted the motion and, in a thorough analysis, affirmed its prior decision.
The petitioner, through new counsel, has filed a second motion, again seeking to reopen the matter and
reconsider the AAO's adverse decision. The AAO will grant the motion to reconsider and affirm its prior
findings.
That being said, the AAO notes counsel's improper reference to the petitioner's current motion as an "appeal"
of the AAO's previous adverse decision. The petitioner's present filing is a motion, not to be confused with an
appeal over which the AAO has broad powers of de novo review. The AAO has already issued its decision in
response to the petitioner's appeal. The petitioner cannot file a second appeal with regard to the same petition.
Rather, the petitioner may file a motion seeking to reopen the matter and/or reconsider the prior adverse
decision. In this type of proceeding, the scope of the AAO's review is limited pursuant to 8 C.F.R.
§ l03.5(a)(2), which describes the scope of review for a motion to reopen, and 8 C.F.R. § l03.5(a)(3), which
describes the scope of review for a motion to reconsider. The regulations at 8 C.F.R. § l03.5(a)(2) state, in
pertinent part, that a motion to reopen must state the new facts to be provided in the reopened proceeding and
be supported by affidavits or other documentary evidence. Based on the plain meaning of "new," a new fact is
found to be evidence that was not available and could not have been discovered or presented in the previous
proceeding.
l
In the present matter, neither counsel's brief nor the petitioner's declaration presents previously
unavailable facts or evidence. Therefore, the AAO will not grant the petitioner's motion to reopen.
With regard to the motion to reconsider, the AAO's review will be limited by the provisions cited in 8 C.F.R.
§ l03.5(a)(3), which states in pertinent part:
A motion to reconsider must state the reasons for reconsideration and be supported by any
, pertinent precedent decisions to establish that the decision was based on an incorrect
application of law or [Citizenship and Immigration Services] CIS policy. A motion to
reconsider a decision on an application or petition must, when filed, also establish that the
decision was incorrect based on the evidence of record at the time of the initial decision.
The petitioner is a Florida corporation engaged in the distribution of fruits and vegetables. 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. § 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition on
two independent grounds of ineligibility: 1) the petitioner failed to establish that the beneficiary would be
employed by the U.S. entity in a managerial or executive capacity; and 2) the petitioner failed to establish its
ability to pay the beneficiary's proffered wage. In reviewing the re'cord on appeal, the AAO withdrew the
second ground for denial, but ultimately dismissed the appeal, citing the first ground as the primary basis for
its adverse decision. In addition, the AAO concluded that the petitioner failed to establish that the beneficiary
was employed abroad in a qualifying managerial or executive capacity.
1 The word "new" is defined as "1. having existed or been made for only a short time . . . 3. Just discovered,
found, or learned <new evidence> "WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 792
(1984)(emphasis in original).
Page 3
In response to the petitioner's motion, the AAO concluded that the petitioner failed to overcome the basis for
the dismissal of the appeal. With regard to the beneficiary's proposed employment, the AAO found that the
petitioner failed to provide credible evidence of a staffing structure sufficient to support the beneficiary in a
qualifying managerial or executive position at the time of filing. The AAO stressed that all evidence must
establish eligibility at the time the petition was filed and determined that no consideration would be given to
evidence of additional staff hired after the petition was filed. See Matter of Katigbak, 14 I&N Dec. 45, 49
(Comm. 1971). Most importantly, the AAO determined that the petitioner offered overly broad and
implausible job duties that were based on exaggerated staffing levels that did not exist at the time Form 1-140
was filed.
Similarly, with regard to the beneficiary's employment abroad, the AAO determined that the beneficiary's job
duties were inconsistent with the foreign entity's staffing structure. The AAO noted that the foreign entity had
a very limited number of employees with each employee occupying a variety of different positions. The
AAO concluded that the entity was not adequately staffed to relieve the beneficiary from having to primarily
focus on tasks of a non-qualifying nature.
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 m 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. § 1101(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization m 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.
On current motion, counsel asserts that the petitioner meets Florida's statutory law requirements, which rely
heavily on a corporation's bylaws, stating that "[e]ach officer has the authority and shall perform the duties set
forth in the bylaws or, to the extent consistent with the bylaws, the duties prescribed by the board of directors
or by direction of any officer authorized ... to prescribe the duties of other officers." Fla. Stat. § 607.0841.
However, the petitioner's ability to meet Florida's statutory provisions is not indicative of its ability to meet
the relevant sections of the Act and corresponding regulations. Further, the petitioner's bylaws are equally
general in their requirements, stating only that "such duties, as may from time to time be assigned ... by the
board of directors, and as are incident to the offices of president and chief executive officer." There is no
specific requirement either in the statute or the bylaws that the duties to be performed by these high offices
must be within a certain capacity. To the contrary, 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.
Thus, unlike the Florida statutory provisions, the Act contains specific criteria that must be met by a petitioner
seeking to classify an alien as a multinational manager or executive. These criteria must be applied both to
the beneficiary's employment abroad and to the proposed employment with the U.s. petitioner. As discussed
in the AAO's prior decisions, the petitioner must not only provide detailed descriptions of the beneficiary's
foreign and U.S. emplo ylnent , but it must also submit credible evidence of staffing structures capable of
supporting the beneficiary as a Inanager or executive in the foreign and U.s. positions. Contrary to counsel's
arguments, neither the petitioner's by-laws nor the dictionary definition of the beneficiary's position title
establishes the nature of the duties prilnarily performed within either of the beneficiary's positions.
Furthermore, counsel's interpretation of the AAO's prior reference to Matter of Katigbak is erroneous, as the
issue in the present Inatter is not whether the beneficiary was qualified for the proffered position at the time of
filing. 14 I&N Dec. 45. Rather, the issue here is whether, at the time of filing, the petitioner was capable of
employing the beneficiary in a qualifying managerial or executive capacity. Counsel improperly focused on
... ~ -
the specific facts in the precedent case, instead of the relevant legal principle established therein, i.e., that
eligibility must be established at the time of filing. [d. This legal principle must be broadly applied to all of
the filing requirements. Thus, just because the beneficiary was qualified for employment as a multinational
manager or executive does not mean that the petitioner was able to employ him in that capacity. It is the
petitioner's burden to provide a detailed description of the beneficiary's job duties and to establish, through
proper documentation of the company's staffing structure, that the petitioner was able to employ the
beneficiary in a qualifying capacity at the time the Form 1-140 was filed.
In the present matter, counsel relies, in part, on the revenue generated by the petitioner at the time the Form 1­
140 was filed. However, this information is irrelevant for the purpose of determining the petitioner's ability to
employ the beneficiary in a managerial or executive capacity. The mere fact that a company is able to remain
financially viable and even successful in the presence of a small support staff may be relevant to its ability to
employ its personnel, but it does not establish a petitioner's ability to employ the beneficiary in a qualifying
capacity.
Counsel also asserts that the third party suppliers, who provide the company's products, and the drivers, who
carry out the company's delivery services, perform the non-qualifying tasks, thereby leaving the beneficiary to
perform the managerial and/or executive functions. The underlying implication of counsel's reasoning is that
the beneficiary's qualifying functions are implied by virtue of having others within the petitioning
organization perform the non-qualifying tasks. However, the AAO cannot assume that the beneficiary's tasks
are primarily within a qualifying capacity based on a brief discussion of services provided by others. The
regulation at 8 C.P.R. § 204.5(j)(5) explicitly requires that the petitioner clearly describe the duties to be
performed by the beneficiary in his proposed position. The petitioner should be able to articulate this
information with relative ease if, as counsel strongly asserts, the beneficiary primarily performs tasks of a
qualifying nature. Meeting the regulatory criteria is a matter of articulating what specific duties the
beneficiary would perfOllli.
Moreover, counsel's attelnpt to distinguish the beneficiary in Fedin Bros. Co., Ltd. v. Sava from the
beneficiary in the present matter is irrelevant. 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir.
1990). The mere fact that the petitioner in the present matter claims that the beneficiary would be employed
as president does not establish that his duties would be within a qualifying capacity. As previously stated, the
petitioner must provide a detailed description of the beneficiary's proposed employment, including the
specific duties entailed therein, and submit documentation to establish that its staffing structure is sufficient to
support the beneficiary in the proposed position whose tasks are primarily within a qualifying capacity. The
AAO has devoted significant portions of its prior decisions specifically explaining which factors contributed
to the denial of the petition and to the subsequent dismissal of the appeal. Merely disagreeing with the AAO's
sound reasoning without providing evidence that the petitioner has met the statutory and regulatory
requirements is not sufficient to warrant a favorable outcome, and it falls well short of what is required to
show that both the director and the AAO erred in their decisions to deny the petition based on the record of
proceeding that was before them at that time.
With regard to the beneficiary's foreign employment, counsel relies primarily on the beneficiary's position
title in asserting that the en1ployment abroad was within a qualifying managerial or executive capacity. While
the beneficiary provides a supplemental "unsworn" declaration explaining the various functions carried out by
the foreign entity's employees, his statement fails to establish that he primarily performed duties within a
qualifying capacity. Moreover, none of the sources cited by counsel establishes that the AAO's adverse
findings with regard to the beneficiary's foreign employment wqe incorrect based on the evidence of record
at the time of the initial decision.
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.F.R.
§ 103.5(a)(1)(iv).
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. Here, the petitioner has not sustained that burde-n.
ORDER: The prior findings are affinned. The appeal is dismissed.