dismissed EB-1C Case: Gas Station Operations

identifying data deleted to 
prevent c1ear!y lnwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: JUL 0 7 2011 OFFICE: TEXAS SERVICE CENTER 
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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U_S.C. § I I 53(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
-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 Jersey corporation that 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 based on the determination that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. 
On appeal, the petitioner disputes the director's decision and contends that the record establishes that the 
beneficiary would be employed in a qualifying executive capacity. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 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)( I)(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. 
The primary issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.c. § IIOl(a)(44)(A), provides: 
Page 3 
The term "managerial capacity" means an assignment within an organization III 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. § IIOI(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III which the 
employee primarily--
(i) directs the management ofthe 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 support of the Form 1-140, the petitioner submitted a letter dated March 16,2009, stating that in his role as 
president of the u.S. entity the beneficiary has set the plan and strategy to ensure success of the U.S. 
operation. The petitioner stated that the beneficiary performs managerial duties and is responsible for 
"increasing the business, taking major decisions about the business, and meeting with business houses for 
getting clients, meeting with [blankers, planning, budgeting, etc." The petitioner claimed five employees at 
the time of filing and indicated that additional employees would be hired when the volume of business 
increases. 
On May 22, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a supplemental description of the beneficiary's proposed employment, listing the beneficiary's daily 
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job duties and the percentage of time that would be allocated to each duty. The director also instructed the 
petitioner to provide its organizational chart depicting the beneficiary's position within the hierarchy and to 
include a work schedule and job descriptions for the petitioner's employees. 
In response, the petitioner provided a statement dated June 30, 2009, which included the following list of 
duties and responsibilities: 
• Plan, organize, direct, control and evaluate the operations of Gas [sic] station[.] 
• Establish or implement policies and procedures for [the] staff1.] 
• Plan and control [the] budget and inventory[.] 
• Monitoring pricing of [c]rude oil on Daily [sic] basis. 
• Study market research and trends to determine consumer demand, potential sales volumes 
and effect of competitors' operations on sales[.] 
• Defining goals and target of sale[s] on [a] monthly basis and reviewing the target on [a] 
weekly basis on the basis of actual sale[ s]. 
• Policy making based upon like [sic] what is the margin for that period ... and if margins 
are high you can make policy to increase the sale[s] by dropping the price. 
• Meeting with big companies (key accounts) to open account with Gas [sic] station. 
• Managing the [k]ey accounts[.] 
The petitioner also provided brief job descriptions for the four claimed gas station employees~irector, sales 
manager, accountant, and assistant--daiming that all four are employed on a full-time basis. The AAO notes 
that the petitioner did not provide the employees' work schedules. The petitioner did, however, provide its 
organizational chart, depicting the beneficiary at the top of the hierarchy, followed by the director, who is 
shown as overseeing the accountant and sales manager. The assistant is depicted at the bottom of the chart as 
the subordinate of the sales manager. 
In a decision dated August 27, 2009, 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 summarized the job description that was provided in response to the RFE, finding that 
the information was overly broad and thus failed to convey an understanding of what the beneficiary would 
actually be doing on a daily basis. The director also considered the nature of the petitioner'S business as well 
as the underlying organizational hierarchy and found that the petitioner has not established that it is able to 
employ the beneficiary in a primarily managerial or executive capacity. 
On appeal, the petitioner asserts that the director's decision is erroneous and claims that the beneficiary would 
be employed in an executive capacity. In support of this claim, the petitioner points to the beneficiary's role 
as the sole discretionary decision-maker. More specifically, the petitioner stated that the beneficiary made the 
Page 5 
decision to start a custom brand of gasoline based on the brand name of the petitioner's foreign affiliate. The 
petitioner also indicated that the beneficiary makes decisions regarding policies, sales goals, and overall 
company objectives, including choosing which vendors that the company would deal with in purchasing 
gasoline as well as deciding to expand the business by starting a trucking company. 
The petitioner further claims that the current staffing is reflective of its needs and is sufficient to allow the 
beneficiary to focus on setting company policies and performing "exclusive duties" that cannot be performed 
by any other staff member. Additionally, the petitioner points out that, because it operates only as a gas 
station, rather than a gas station/convenience store, no additional staff is necessary, nor does the petitioner 
require the beneficiary's efforts in carrying out daily operational tasks. 
The AAO finds that the petitioner's assertions are not persuasive in overcoming the basis for deniaL 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). A detailed description of actual daily job 
duties is crucial, as the duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (ED.NY 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The AAO will then 
consider this information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, 
and the petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily 
operational tasks. 
A review of the job description offered by the petitioner indicates that the director properly determined that 
the record lacks a comprehensive description of the beneficiary's day-to-day tasks. It is noted that reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient. As indicated 
above, a detailed description of the beneficiary's daily job duties is required in order for USCIS to determine 
that the proposed employment would be within a managerial or executive capacity. 
In the present matter, the petitioner has provided a job description that is overly vague and lacks the time 
constraints that the director requested. While the beneficiary's discretionary authority is clearly conveyed 
when considering his role as the primary policy- and decision-maker, the record shows that the beneficiary 
would assume job duties that would be deemed as operational and therefore non-qualitying. More 
specifically, the petitioner indicated that the beneficiary would monitor oil prices, conduct market research, 
and act as the primary account manager in that he would both meet with potential client companies and 
manage existing accounts. The petitioner has failed to establish precisely how these operational tasks fit 
within the definition of managerial or executive capacity. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualitying tasks the beneficiary would 
perform are only incidental to hislher 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, 191&N Dec. 593, 604 (Comm. 1988). In an effort to determine how much of the beneficiary's 
time would be allocated to managerial- or executive-level tasks, the director's RFE expressly instructed the 
petitioner to assign a percentage of time to each of the beneficiary's proposed job duties. The petitioner failed 
to comply with this request, thus leaving a key issue unresolved. Failure to submit requested evidence that 
Page 6 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Despite the petitioner's claim that the beneficiary does not engage in the performance of non-qualifying tasks, 
this claim alone is insufficient without adequate supporting evidence. See Matter ofSoffici, 22 I&N Dec. 158, 
165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
After reviewing the totality of the record, including the beneficiary's job description, the petitioner's 
organizational and staffing structures as well as the nature of the petitioner's business, the AAO finds that the 
evidence does not support a favorable finding. As discussed above, the beneficiary's job duties have not been 
defined with sufficient clarity, nor have time constraints been assigned, which would enable the AAO to 
gauge how much time the beneficiary would allocate to the qualifying versus the non-qualifying tasks. With 
the exception of the accountant, the petitioner's staffing is limited to what appear to be gas station employees, 
despite what their position titles may indicate. While the petitioner claims that the current staffing suits its 
current organizational needs, it is unclear that this organization either has either the need or the ability to 
support a primarily managerial or executive employee. 
In summary, the record simply does not support the claim that the beneficiary would primarily perform tasks 
within a qualifying managerial or executive capacity. Therefore, on the basis of this finding, the AAO cannot 
approve the instant petition. 
Furthermore, while not expressly addressed in the director's decision, the AAO finds that the record fails to 
establish that 1) the beneficiary was employed in a qualifying managerial or executive capacity pursuant to 
8 C.F.R. § 204.5(j)(3)(i)(B); 2) the petitioner continues to operate as a multinational entity; and 3) the 
petitioner was doing business for one year prior to filing the petition pursuant to 8 C.F.R. § 204.5(j)(3)(i)(D). 
With regard to the beneficiary's employment abroad, the record lacks information establishing what job duties 
the beneficiary performed and who, if anyone, he supervised during such employment. As such, the AAO 
cannot conclude that the beneficiary primarily performed tasks within a qualifying managerial or executive 
capacity during his employment with the foreign entity. 
With regard to the petitioner's claimed foreign affiliate, the record lacks sufficient evidence to establish that 
the foreign entity continues to do business on a regular, systematic, and continuous basis. See 8 C.F.R. 
§ 204.5(j)(2) for a defmition of doing business. While the foreign entity's business invoices were submitted, none 
were dated beyond the date the instant Form 1-140 was filed. 
Lastly, with regard to the petitioner's business activity, the petitioner indicated on appeal that "operations were 
started mainly in April 2008," thus indicating that the petitioner was likely not to have been doing business as of 
March 2008, or one year prior to the filing of the petition. 
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 ofthe grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004)(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. 
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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' § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.