dismissed EB-1C Case: Food Industry

identifying data deleted to 
 U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
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U.S.Citizenship 
and Immigration 
kPUBLIC COPY 
SRC 05 250 5 1473 
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. 3 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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 ofice. 
Ro -ef e 
Administrative Appeals Ofice 
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 South Carolina corporation whose business is to act as a broker and an agent in 
transactions involving the sale of ingredients and machinery for the food industry.' It 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. 4 1153(b)(l)(C), as a multinational executive or manager. The director determined that the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity and 
denied the petition on that basis. 
On appeal, the petitioner disputes the director's conclusion and submits a statement discussing its reasons 
therefore. 
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. 
1 
 It should be noted that, according to the Office of South Carolina Secretary of State's Business Filings Division, the 
petitionerfs corporate status was dissolved on February 22, 2005. Therefore, regardless of whether ths forfeiture can be 
easily remedied or not, it raises the critical issue of the company's continued existence as a legal entity in the United 
States. 
The primary 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 l(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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 4 1 10 1 (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 &rectors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated September 8, 2005 in which it provided 
the following job description of the beneficiary's proposed U.S. employment within an executive capacity: 
[The beneficiary] establishes the multinational business goals and projection of the company, 
manages the organization and provides all technical guidance as needed, has global latitude in 
Page 4 
decision making, negotiates with potential suppliers for products and machinery; identifies 
potential users, in the U.S. and abroad, according with [sic] the characteristics of their plant 
operations and goods manufactured and decides on pricing policy. 
The petitioner also provided the following percentage breakdown of the beneficiary's responsibilities: 
Through the managers of [slales and [elxports departments of manufacturers and [the 
foreign entity], follows up with current situation[s] of portfolio of established 
customer[s,] domestic and overseas. 
Analyzes reports from [slales and [aldministration managers of manufacturers and 
[the foreign entity] on new orders and arrival[s] in order of recent shipments to 
customers' operation plants. 
Analyzes reports and attends [sic] communications from [the slales manager of [the 
foreign entity], [tlransit and [plurchase [dlepartment managers of customers, 
[flonvarding companies['] managers and [c]ustoms [slervice managers about new 
regulations on exports, paperwork and [the] issue of required documents for 
exports/imports worldwide. 
Approximate percentage of time [spent on the above responsibilities]: 25% 
Attends meetings and communications with management executives of worldwide 
manufacturers with the production capacity and meeting quality requisites looking 
forward to establish representation agreements in order to offer their products to 
potential customers domestically and overseas. 
Approximate percentage of time [spent on the above responsibilities]: 15% 
Analyzes reports and communication from [the tlechnical [slervices manager of [the 
foreign entityII, [research and development and quality control] managers from 
manufacturers and customers related with [sic] technical matters involving the 
products been [sic] merchandised worldwide. 
As required, establishes contact with international government regulatory 
organizations . . . in order to ensure compliance with their requirements. 
Approximate percentage of time [spent on the above responsibilities]: 15% 
Supervises and analyzes reports and communications of personnel in both final 
users['] and manufacturers['] departments . . . and managers of freight forwarders 
companies according with [sic] the day[-]to[-]day needs of customers. 
Approximate percentage of time [spent on the above responsibilities]: 25% 
Page 5 
Keeps update [sic] with technical information and new trends and products in the 
[flood [ilndustry, [p]harmaceutical [industry] and related field[s]. Assists to [sic] 
conferences and business meetings in order to maintain the necessary professional 
relations with the business community[.] 
Approximate percentage of time [spent on the above responsibilities]: 20% 
On June 23, 2006, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide the following documentation to assist Citizenship and Immigration Services (CIS) in determining the 
petitioner's eligibility for the immigration benefit sought: 1) the petitioner's organizational chart illustrating its 
staffing levels and identifying its employees by name and position title; 2) job descriptions for each employee 
included in the petitioner's organizational chart; and 3) the Form W-2s, quarterly tax returns, or Form 1099s 
to establish wages paid to the two employees claimed in the petitioner's Form 1-140. 
In response, the petitioner provided a letter dated August 3 1,2006 explaining the nature of its business and its 
goal to cut production costs in an effort to cut pricing for its customers. The petitioner explained that it relies 
on contracted and part-time employees on a need basis. The petitioner further noted that the beneficiary 
"personally renders the professional services in food technology provided by this company and . . . manages 
an outsourced staff without which his company could not exist." Additionally, the petitioner stated that many 
of its functions overlap the functions of suppliers and purchases, i.e., the petitioner's clients, whose respective 
employees perform various functions that ultimately assist the petitioner in its business activities. Based on 
this reasoning, the petitioner stated that the beneficiary manages the employees from three different entities- 
the seller, the buyer, and the petitioner's claimed foreign affiliate. 
As requested, the petitioner also provided an organizational flow chart, which identifies the beneficiary at the 
top of a hierarchy in which the essential functions are purportedly performed by employees of the companies 
with whom the petitioner deals in its capacity as the broker and agent of various sales and purchase 
transactions. The petitioner stated that the beneficiary coordinates and supervises each aspect of the sales and 
purchase transactions brokered by the petitioner. The beneficiary's responsibilities include communicating 
with regulatory personnel, customs agents, and forwarders, with the departments of the manufacturer whose 
services are being purchased, and the customer purchasing the raw materials or equipment that is 
manufactured. In essence, the petitioner is the liaison between the various participants of the purchase and 
sales transactions within the food industry. 
The petitioner also provided brief statements, signed by the beneficiary in his capacity as the petitioner's 
general manager, identifying individuals who have provided the petitioner with various services, including 
bookkeeping, legal services, general office work, and forwarding services, most of which are documented 
with service invoices. However, the documentation regarding the bookkeeping, legal, and computer-related 
services suggests that these services were only sporadically provided and are not key components of the 
petitioner's daily operations. The petitioner has not provided documentation to support its claimed 
employment of part-time administrativeloffice assistants. Additionally, the petitioner provided a number of 
email communications, which suggest that the beneficiary, himself, directly and actively carries out the duties 
underlying the petitioner's role as liaison between two business entities that are party to a sales/purchase 
transaction. 
Upon reviewing the documentation submitted, the director determined that the petitioner failed to establish 
that the beneficiary's prospective employment would be within a managerial or executive capacity. 
Accordingly, the director issued a notice dated November 7, 2006 denying the petition. The director found 
that the petitioner's lack of a support staff indicates that the beneficiary actually provides the services that are 
sold to the petitioner's customers. While the AAO concurs with the director's overall findings, it is noted that 
the director erroneously stated that the petitioner failed to show payments made for outsourced services. 
However, the director's misstatement is not germane to the question of the petitioner's overall eligibility. As 
such, the AAO will withdraw the comment but affirm the director's decision to deny the petition for the 
reasons stated herein. 
Furthermore, a thorough analysis of the record suggests that the director's comment regarding the existence of 
a support staff was generally accurate. Despite the petitioner's prior claim in Part 5, Item 2 of the Form 1-140, 
the petitioner has not provided evidence to show that it has employed anyone other than the beneficiary to 
assist in the daily performance of tasks that are directly related to carrying out the services offered by the 
petitioner. While the AAO acknowledges the various contributions of other participants within the food 
manufacturing industry, the petitioner has identified itself as a service provider, its service specifically being 
that of an agenttbroker. As such, the petitioner's burden is two-fold. First, the petitioner must comply with 
8 C.F.R. 204.50)(5), which requires that the petition provide a detailed description of the beneficiary's 
proposed job duties. This aspect of the petitioner's burden is crucial, as the actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 
905 F.2d 41 (2d. Cir. 1990). Second, the petitioner must establish that the primary portion of the beneficiary's 
time would be spent performing job duties that are managerial or executive in nature, as 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" perfonn 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, with regard to the description of the beneficiary's prospective job duties, the petitioner's 
percentage breakdown primarily focuses on the beneficiary's interactions with the various departments of 
other companies that participate in the food distribution industry. However, the job description does not 
indicate that anyone other than the beneficiary actually provides the services that generate the petitioner's 
revenue. In other words, while the AAO does not dispute that the petitioner utilizes information provided by 
other companies that are also participants in the food manufacturing industry, the record suggests that the 
beneficiary is solely responsible for providing the services of an agent or broker to various food 
manufacturers, i.e., the petitioner's customers. Despite the petitioner's earlier claims, no explanation has been 
provided to clarify how the beneficiary effectively manages employees who work for the companies with 
which the petitioner does business. That being said, the petiboner's statement on appeal suggests that the 
petitioner misinterpreted the director's discussion of a subordinate staff to mean that a subordinate staff is a 
necessary requirement. 
 This interpretation, however, is incorrect. 
 The director properly observed the 
petitioner's obvious lack of a subordinate staff and the petitioner's failure to adequately explain how the 
petitioner in its current state is able to relieve the beneficiary from having to perform primarily non-qualifying 
duties associated with providing the services of the organization. Contrary to the petitioner's misconception, 
the petitioner need only establish and properly document that the beneficiary would not primarily perfom 
daily operational tasks. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Here, 
Page 7 
the petitioner has not adequately articulated the beneficiary's job duties or provided sufficient evidence to 
establish that someone other than the beneficiary would perform the necessary operational tasks. Therefore, 
the AAO cannot conclude that the petitioner has established that the primary portion of the beneficiary's time 
would be spent performing duties within a qualifying managerial or executive capacity. 
The petitioner's resubmission of documents previously submitted does not overcome the grounds cited in the 
denial, as the director has indicated with sufficient clarity that she has reviewed the petitioner's submissions 
and has found that they were insufficient for the purpose of determining that the beneficiary would be 
employed in the United States entity in a qualifying managerial or executive capacity. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. $ 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifying managerial or executive position 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. In the instant matter, little reference is 
made with regard to the beneficiary's foreign employment and the beneficiary's job duties in particular. As 
such, it cannot be concluded that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity. 
Second, 8 C.F.R. $ 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. Although the petitioner claims to be a wholly owned 
subsidiary of Intrera, Inc., it provided no documentation to support this statement. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). It is further noted that in an earlier decision in which the 
AAO dismissed the petitioner's appeal of a revocation issued by the director, the AAO determined that the 
petitioner failed to resolve inconsistencies regarding the issue of who controlled the petitioning entity at the 
time of filing the prior Form 1-140 petition (SRC0204155493). Based on the lack of documentation 
addressing the issue of a qualifying relationship, it appears that the inconsistencies cited earlier remain 
unresolved. 
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), afyd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(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. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afld, 345 F.3d 683. 
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. tj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.