dismissed EB-1C Case: General Business

(b)(6)
DATE: MAY 16 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Seturity 
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)(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 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 in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific 
requirements for filing such a request can be found at 8 C.F.R. § 103.5. Do not file any motion directly with 
the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed within 30 days 
of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting 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 Florida corporation that seeks to employ the beneficiary in the United States 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. § 1153(b)(1)(C), as a 
multinational executive or manager. 
In support of the Form I-140 the petitioner submitted a statement dated "December, 2011" which contained 
information pertaining to the beneficiary's employment abroad and with the petitioning entity as well as 
information describing the nature of the petitioner's qualifying relationship with the beneficiary's foreign 
employer. The petitioner also provided supporting evidence in the form of tax, business, and corporate 
documents. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
Although the petitioner provided an hourly breakdown describing the beneficiary's proposed position, the list of 
items was primarily comprised of broad job responsibilities rather than daily tasks. The director therefore issued 
a request for evidence (RFE) dated March 31, 2012 informing the petitioner of various evidentiary deficiencies. 
The beneficiary's proposed employment with the petitioning entity was among the list of issues the RFE 
addressed. The petitioner was instructed to provide a more detailed description of the beneficiary's proposed 
employment complete with a list of the specific job duties the beneficiary would perform and the percentage of 
time he would allocate to each of the named tasks. The petitioner was also asked to list the beneficiary's direct 
subordinates, their job titles, and respective levels of education and to provide an organizational chart depicting 
the petitioner's staffing structure supported by IRS Form W-2s and/or Form 1099s for each of the petitioner's 
employees and/or contracted workers. 
The petitioner responded to the RFE by supplementing the record with an additional job description and 
percentage breakdown describing the beneficiary's proposed employment, an organizational chart accompanied 
by an employee list specifying employee dates of employment where applicable, and IRS wage and salary 
documents showing who got paid and the amount of the compensation. The petitioner failed to provide any of 
the employees' educational credentials or the educational requirements for the positions that are depicted as the 
beneficiary's direct subordinates. 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)(14). 
After considering the petitioner's response, the director determined that the petitioner failed to establish that the 
beneficiary would be employed with the U.S. entity in a qualifying managerial or executive capacity. The 
director therefore issued a decision dated July 2, 2012 denying the petition. The director specifically found that 
the petitioner failed to establish that its organizational composition was adequately complex to support the 
beneficiary in a position that could be characterized as being in a qualifying managerial or executive capacity. 
The director further noted that the record lacks sufficient evidence to establish that the beneficiary would oversee 
the work of supervisory, professional, or managerial employees. 
On appeal, counsel provides an appellate brief in which he asserts that the director "overlooked the fact that the 
beneficiary" directs and controls the petitioning entity's major functions and works through others to achieve the 
corporation's end 
goals. Counsel challenges the director's reference to the size of the petitioning entity, asserting 
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that the dlrector cannot "solely" rely on the size of the petitioning entity in determining the petitioner's eligibility 
for the immigration benefit sought. 
The AAO finds that counsel's assertions fail to overcome the ground for denial. A full discussion explaining the 
AAO's analysis of the petitioner's supporting evidence is provided below. 
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) ofthe 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, 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 
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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) ofthe 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. 
In general, when examining the executive or managerial capacity of the beneficiary, the AAO reviews the totality 
of the record, starting with the petitioner's description of the beneficiary's job duties. See 8 C.F.R. § 204.5(j)(5). 
A detailed job description is crucial, as the duties themselves will reveal the true nature of the beneficiary's 
foreign and proposed 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 AAO will then consider this information in light of other relevant factors, 
including (but not limited to) job descriptions of the beneficiary's subordinate employees, the nature of the 
business conducted, the size of the subordinate staff, and any other facts contributing to a comprehensive 
understanding of the beneficiary's actual role within the organization. 
While the AAO agrees with counsel's assertion that the size of the petitioning entity should not serve as a sole 
basis for denial, the record does not indicate that the petitioner's size was the director's sole consideration in 
making a determination regarding the petitioner's eligibility. The director restated the beneficiary's job 
description as provided in response to the RFE and commented on the lack of evidence that the beneficiary 
oversees the work of a professional staff. 
The AAO agrees with the director's observations and further finds that there are numerous inconsistencies that 
lead to confusion regarding whom the petitioner actually employed at the time of filing the petition and whether 
the staffing composition at that time was sufficient to relieve the beneficiary from having to allocate his time 
primarily to the performance of non-qualifying operational tasks. For instance, the petitioner readily stated in its 
employee list that whom the organizational chart identified as an operations assistant, and 
whom the chart identified as a customer service representative, were no longer employed by the 
petitioner at the time of filing the petition. This leaves the AAO to question who performed the tasks assigned to 
those positions. Moreover, this change in staffing further precludes the AAO from finding that the operations 
manager was actually a managerial or supervisory 
employee. Given that the petitioner failed to provide evidence 
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of the educational credentials for any of the beneficiary's three direct subordinates-a sales executive, a sales 
subordinate, and an operations manager-the AAO cannot conclude that at the time the petition was filed the 
beneficiary was going to oversee the work of professional employees. The mere fact that the beneficiary's 
subordinates carry managerial or professional position titles does not establish that they are, in fact, professional 
or managerial employees. 
The AAO further observes that while the petitioner 
issued an IRS Form W-2 and Form 1099 for m 
2011, this individual was not identified on the petitioner's organizational chart. Rather, the petitioner simply 
identified as an executive assistant in the separate employee list that was submitted with the 
organizational chart, which identified (for whom a Form W-2 and Form 1099 was also 
submitted) as the petitioner's only executive assistant in 2011. 
Furthermore, the fact that the organizational chart identified only one executive assistant poses vet another 
problem given that whom the chart identified as an operations assistant, and whom the 
chart identified as an operations manager and superior of were both identified as executive 
assistants in the petitioner's separate employee list. Despite the fact that was shown not have been 
employed by the petitioner at the time of filing the petition, the inconsistencies regarding these ever-changing 
position titles gives rise to doubt as to who was performing the petitioner's daily operational tasks when the 
petition was filed and how exactly the petitioner planned to support the beneficiary's employment in a primarily 
managerial or executive capacity. It is incumbent upon the petitioner to resolve any inconsistencies in the record 
by providing 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). 
After having reviewed the job description the petitioner offered in response to the RFE, the AAO finds that the 
information provided lacks substance and fails to convey a meaningful understanding of the actual daily tasks the 
beneficiary would perform. For instance, the petitioner indicated that 20% of the beneficiary's time would be 
allocated to managing the "main connection between" the foreign entity and the U.S. petitioner. The petitioner 
did not clarify, however, how the beneficiary plans to coordinate activities between the two entities to "to 
determine the best equipments [sic] required by customers." In fact, the petitioner's reference to "equipments" 
[sic] is confusing when taking into consideration the petitioner's claim that it is a wholesaler of used clothing. 
The AAO also finds that the petitioner's references to the beneficiary's role in correcting and implementing 
policies to be equally vague, as the petitioner provided no clarifying statements discussing the specific policies 
the beneficiary corrects and implements or how the beneficiary assesses policies in order to determine when a 
policy requires correction. Further, while the petitioner indicated that the beneficiary would allocate 10% of his 
time to meeting with subordinate executives, there is no evidence to establish that the sales executive and the 
executive assistant, who are the only two employees with executive position titles, are supervisory, professional, 
or managerial employees. As indicated above, the petitioner failed to ·provide evidence of the educational 
credentials for any of the beneficiary's three direct subordinates. 
Lastly, the AAO finds that a considerable portion of the beneficiary's time would be allocated to non-qualifying 
tasks, including communicating with suppliers in order to establish agreements regarding price and shipping 
times for approximately 10% ofthe beneficiary's time; attending meetings with vendors for another 10% of the 
time; conducting market analysis for approximately 5% of the time; and generally supervising the work of non­
supervisory, non-professional, and non-managerial employees for more than 10% of the time. While the AAO 
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acknowledges that 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). 
The record indicates that the beneficiary's position would require a mix of both qualifying and non-qualifying 
tasks. However, given the numerous general statements, which failed to identify tasks with specificity, and the 
fact that some of the beneficiary's tasks can be readily identified as operational or non-qualifying tasks, the 
petitioner has failed to establish just how much of the beneficiary's time would be spent performing qualifying 
tasks versus those that are found to be non-qualifying. In summary, the petitioner has failed to provide detailed 
and persuasive evidence that the beneficiary would allocate his time primarily to tasks within a qualifying 
managerial or executive capacity. Therefore, the AAO finds that the petitioner has failed to establish that it 
meets the relevant statutory criteria. On the basis of this finding the petition cannot be approved. 
Additionally, while not previously addressed by the director, the AAO finds that the petitioner has provided 
inconsistent evidence of its ownership. Specifically, in reviewing the petitioner's 2011 corporate tax return, the 
AAO notes that while Schedule G indicates that the beneficiary's foreign employer owns 66% of the petitioner's 
stock and the benefiCiary owns the remaining 34%, Schedule K of the same tax return identifies the beneficiary 
as the sole owner holding 100% of the petitioner's stock. As noted previously, the petitioner maintains the 
burden of resolving any inconsistencies in the record by providing independent objective evidence. Matter of Ho, 
19 I&N Dec. at 591-92. Here, the petitioner has neither acknowledged the inconsistency nor provided evidence 
to resolve it. The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); 
see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Assoc. Comm. 1986); Matter of Hughes, 18 
I&N Dec. 289 (Comm. 1982). In light of the inconsistent claims made by the petitioner with regard to its 
ownership, the petitioner has not shown that a qualifying relationship exists between it and the foreign entity that 
previously employed the beneficiary abroad. 
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), affd, 345 F.3d 683 (9th Cir. 
2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews appeals on a de 
novo basis). Therefore, based on the additional ground of ineligibility discussed above, this petition cannot be 
approved. 
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.