dismissed EB-1C Case: Footwear

(b)(6)
DATE: DEC 0 2 2014 
IN RE: Petitioner: 
OFFICE: TEXAS SERVICE CENTER 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service� 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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.F.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosen 
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 U.S. entity that operates as a footwear manufacturer, wholesaler, and retailer. It seeks to 
employ the beneficiary in the United States as its designer director. Accordingly, the petitioner endeavors to 
classify the beneficiary as an employment�based immigrant pursuant to section 203(b )(1 )(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or 
manager. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
I. The Law 
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)(1)(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. 
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--
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(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. 
II. Procedural History 
The record shows that the petition was filed on August 21, 2013 and was accompanied, in part, by the 
petitioner's supporting statement, dated June 5, 2013, in which the petitioner indicated that the beneficiary 
will be responsible for creating on-line designs and prototypes as well as "off-line and conceptual product 
designs." The beneficiary would manage one associate designer and report directly to the vice president of 
men's casual footwear. The petitioner provided a job description, indicating that the beneficiary would be the 
lead designer, who would build and eventually manage and oversee a design team. The petitioner also 
provided an organizational chart depicting the entire operation's staffing levels. The chart shows the staffing 
structure of the petitioner's men's casuals group, which places the beneficiary, along with two other directors, 
as subordinates of the group's vice president. The chart also shows one junior/associate designer as the 
beneficiary's subordinate, while the beneficiary's colleagues, who were similarly placed within the men's 
casuals category, had four and five subordinates, respectively. The petitioner provided an additional chart, 
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whose sole focus was the beneficiary's specific department, where four of the positions listed, including three 
associate designers and one intern/assistant, were shown as proposed positions to be filled at some 
unspecified future time. 
On October 31, 2013, the director issued a request for evidence (RFE), informing the petitioner that the record 
lacks sufficient evidence to establish that the beneficiary would be employed in the United States in a 
managerial or executive capacity as claimed in the petitioner's supporting documents. The director 
acknowledged the petitioner's submission of the beneficiary's job description and organizational chart, finding 
that the petitioner failed to specify whether the junior designer position subordinate to the beneficiary was that 
of a professional. The director further informed the petitioner that the beneficiary's designer duties could not 
be deemed as being within a qualifying managerial capacity and reiterated the petitioner's burden of having to 
establish that the beneficiary's proposed position must be primarily comprised of qualifying tasks. 
Accordingly, the director instructed the petitioner to provide a list of the beneficiary's specific daily job duties 
and to indicate what percentage of time the beneficiary would allocate to each of the enumerated tasks. 
In response, the petitioner provided a statement, dated January 10, 2014, which included the following 
percentage breakdown: 
• Manage [the] Associate Designers/Junior Designers and Design Inter[ n ]/Design Academy 
Student directly; 20% 
• Control a departmental budget of approximately $250,000; 10% 
• Build up a design team, which will consist of four Associate Designers and one Intern; 10% 
• Mentor the development of junior designers establishing training requirements and coaching 
key skill areas; 10% 
• Manage and oversee the design team's operation; 10% 
• Manage adherence to design/development timelines for global men's design team; 7% 
• Design creative product concepts to meet all consumer and commercial aspects of the brief; 
5% 
• Act as lead designer for men's global design team, take part in strategic range planning 
activities; 3% 
• Develop last and unit designs in conjunction with [the] Business Unit (BU) Engineer; 5% 
• Develop initial design concepts to [the] prototype stage; 5% 
• Coordinate with factories and suppliers to develop a range of samples to meet the 
development timeline; 5% 
• Finalize Design Brief with BU Director; 1% 
• Coordinate with freelance/outside design resource to deliver against design brief 
requirements; 2% 
• Interact and coordinate with the group heads of Dress and of Casuals and with development 
managers and designers to establish design priorities and allocate workload for the global 
design team, and to manage design workflow; 2% 
• Coordinate with [the] trends team to develop seasonal trend themes and colors to drive the 
creative inspiration and direction; 2% 
• Responsible for developing and owning the men's global leather and material palette, driving 
efficient use of leathers and controlling leather sampling cost; 2% 
• Utilize technology to improve development speed and accuracy. 1% 
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The petitioner referred to the beneficiary as a senior manager and indicated that the beneficiary would have 
complete discretionary authority over matters concerning daily office activities. The petitioner also 
resubmitted the same two organizational charts that were discussed above among the petitioner's initial 
supporting documents and supplemented the record with the junior designer's job description. 
In a decision dated February 19, 2014, the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. The director found that the job duties that accounted for 67% of the beneficiary's time were overly 
vague and further noted that a number of the beneficiary's proposed job duties would be non-qualifying. The 
director also considered the beneficiary's subordinate employee, finding that a single-person support staff was 
unlikely to result in the beneficiary allocating a considerable amount of time managing and mentoring his 
subordinate. Furthermore, the director found it doubtful that the beneficiary's limited support staff would be 
sufficient to relieve the beneficiary from having to allocate his time primarily to non-qualifying tasks. 
The petitioner subsequently filed an appeal supported by an appellate brief from counsel, who restated the 
beneficiary's job description and asserted that 67% of the beneficiary's time would be allocated to duties 
within a managerial capacity. Counsel also asserted that the director overemphasized the beneficiary's job 
description without giving due consideration to the petitioner's organizational structure and the beneficiary's 
position with respect to employees. 
Upon review, and for the reasons stated below, we find that the petitioner has failed to establish that the 
beneficiary will be employed in a primarily managerial or an executive capacity. 
III. Issues on Appeal 
As indicated above, the sole issue to be addressed in this proceeding is the beneficiary's proposed 
employment with the U.S. entity and whether the evidence provided established that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, we review the totality of 
the record, starting first with the description of the beneficiary's proposed job duties with the petitioning 
entity. See 8 C.F.R. § 204.50)(5). Published case law has determined that the duties themselves will reveal 
the true nature of the beneficiary's 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). We then consider the beneficiary's job description in the 
context of the petitioner's organizational structure, the duties of the beneficiary's subordinate employees, the 
presence of other employees to relieve the beneficiary from performing operational duties, the nature of the 
petitioner's business, and any other factors that may contribute to a comprehensive understanding of a 
beneficiary's actual duties and role within the petitioning entity. 
Turning first to the beneficiary's job description, we note that a number of the beneficiary's job duties make 
references to a design team whom the beneficiary would manage. However, a review of the petitioner's 
organizational chart- particularly the men's category headed by the beneficiary- indicates that of the four 
assistant designer positions, three were vacant at the time the petition was filed. The chart also shows one 
design intern/assistant position subordinate to the beneficiary. However, that position was also vacant at the 
time the petition was filed, thus leaving the beneficiary with a support staff that consists of one associate 
designer. Neither the supporting evidence nor the list of the beneficiary's job duties establish that the 
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organizational hierarchy of the department headed by the beneficiary is sufficient to relieve the beneficiary 
from having to allocate his time primarily to tasks of a qualifying nature. Despite the petitioner's claim that 
the beneficiary would spend 20% of his time managing a design team, 10% mentoring junior designers, and 
10% overseeing the design team's operation, the organizational chart indicates that the petitioner did not have 
a design team in place for the beneficiary to oversee. The petitioner has failed to establish that a single 
employee constitutes a "design team" or that nearly half of the beneficiary's time would be allocated to 
overseeing the work of a single employee. 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 Craft of California, 14 l&N Dec. 190 (Reg. Comm. 
1972)). In the present matter, it appears that the beneficiary's managerial job duties are merely a projection of 
future tasks the beneficiary would carry out once he has completed the initial task of hiring employees to 
build a design team, which he would eventually manage once the vacant positions have been filled. 
While we do not dismiss or trivialize the beneficiary's discretionary authority and key role in building the 
design team and making other critical decisions within his department, the record does not indicate that a 
support staff of one employee would allow the beneficiary to focus his time primarily on managing staff and 
making discretionary decisions� In fact, looking further at the beneficiary's job description, it is apparent that 
the beneficiary would assume an active role resulting in his having to carry out a number of design tasks. 
While no beneficiary is required to allocate 100% of his or her time to managerial- or executive-level tasks, 
the petitioner must establish that the non-qualifying tasks the beneficiary would perform are only incidental to 
the 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 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). Here, in the absence of an actual design team, the record indicates that the non-qualifying design 
teams would likely be integral, rather than incidental, to the beneficiary's proposed employment. 
On appeal, counsel asserts that the petitioner "is undergoing an internal organizational restructure and intends 
to establish a design function in the United States." Counsel further explains that the beneficiary has been 
transferred to the United States for the purpose of executing this corporate plan. We note however, that a 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 1971). In the matter at hand, the record indicates that the petitioner's needs at the time of filing 
required the beneficiary to assume an active role in seeing the petitioner's restructuring plan to fruition, which 
would include hiring staff, who would eventually perform various design tasks, and carrying out various 
design tasks himself. While it is possible, after the beneficiary successfully hires a subordinate design staff, 
that the beneficiary would eventually assume a position that will primarily entail tasks within a qualifying 
managerial capacity, the record does not establish that the department headed by the beneficiary had achieved 
a level of organizational complexity wherein the petitioner had the capability of relieving the beneficiary from 
having to focus his time primarily on the department's daily operational tasks. 
In addition, while counsel contends that design is a critical function within the petitioning entity and thus 
essential to the success of the petitioner's business, implying that the beneficiary can be deemed a function 
manager, the beneficiary's duties must demonstrate that the beneficiary manages the function rather than 
performs the duties related to the function. As discussed above, the petitioner did not provide sufficient 
evidence to establish that it has the ability to relieve the beneficiary from having to allocate his time primarily 
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to the performance of non-qualifying tasks; nor does the evidence of record demonstrate that the petitioner 
had the need for such an employee at the time the petition was filed. Rather, the record indicates that the 
beneficiary would continue to carry out tasks that are needed to hire the necessary design personnel so that the 
department eventually fills the positions of four associate designers and one intern. Until such time, it 
appears that the beneficiary would continue to carry out whatever tasks are necessary to advance the 
beneficiary's department beyond its initial stage of development. 
Despite the petitioner's immediate needs at this early stage of development of the design department that is 
currently headed by the beneficiary, the petitioner maintains the burden of establishing that the proposed 
position meets all statutory and regulatory requirements. As previously stated, an employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be 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). Furthermore, the term "function 
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff 
but instead is primarily responsible for managing an "essential function" within the organization. See id. at 
section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 110l(a)(44)(A)(ii). Here, the petitioner is fairly clear in 
indicating that the beneficiary would manage personnel rather than a function. Thus, counsel's implied 
argument that the beneficiary's position can meet the statutory definition of managerial capacity even if the 
beneficiary does not primarily manage personnel is irrelevant to the facts presented in this instance. 
Lastly, with regard to counsel's repeated references to unpublished AAO decisions, we note that while 
8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
Accordingly, in light of the evidence discussed above, the petitioner has failed to establish that the 
beneficiary's proposed employment would be within a qualifying managerial or executive capacity and on the 
basis of this adverse finding this petition cannot be approved. 
IV. Conclusion 
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.