dismissed EB-1C Case: Geophysical Services

(b)(6)
DATE: SEP 0 9 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service~ 
Admini strative Appeals Office (AAO) 
20 Massac husetts 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 (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.P.R.§ 103.5. Do not file a motion directly with the AAO. 
T~ 
,pon Ro~enberg 
' 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 Texas corporation that seeks to employ the beneficiary in the United States as its president 
and chief executive officer. 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. 
In support of the Form I -140 the petitioner submitted a statement dated November 18, 201 0, which contained 
relevant information pertaining to the petitioner's eligibility. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore proceeded to issue two requests for evidence (RFE). The first request, addressing the 
petitioner's ability to pay the beneficiary's proffered wage and the beneficiary's employment capacity in his 
proposed position with the petitioner, was issued on May 8, 2012, while the second request, addressing the 
issue of the petitioner's qualifying relationship with the beneficiary's employer abroad, was issued on January 
25, 2013. With regard to the beneficiary's qualifying employment, the director instructed the petitioner to 
provide a definitive statement describing the job duties the beneficiary would perform on a daily basis 
supplementing this information with the percentage of time the beneficiary would allocate to each job duty. 
The petitioner was asked to provide evidence of any contract labor the petitioner used, indicating which duties 
the contractors performed and the wages they were paid. Additionally, the director instructed the petitioner to 
provide an organizational chart showing the employees who reported directly to the beneficiary, their 
respective job duties and educational levels, and whether they were employed on a full- or part-time basis. 
The petitioner responded to both RFEs, providing sufficient evidence to establish that it has the requisite 
qualifying relationship with the beneficiary's employer abroad. With regard to the beneficiary's employment, 
the petitioner responded by providing a percentage breakdown of the beneficiary's proposed job duties, the 
company's organizational chart, job descriptions for the petitioner's employees and contractors. Both the 
chart and employee job descriptions indicate that the beneficiary occupies two separate positions within the 
petitioner's organizational hierarchy-that of president/CEO and that of consultancy and supervision manager 
overseeing the work of three contracted individuals. The chart also shows that occupies two 
separate positions - that of company vice president, which is directly subordinate to the beneficiary's 
proposed position of president/CEO, and that of equipment trading manager, a position that is at the same 
hierarchical level as the beneficiary's second position of consultancy and supervision manager. The chart 
also identified an office and human resources manager as well as a geophysical service manager. 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary's proposed employment with the U.S. entity would be in a qualifying managerial or executive 
capacity. The director made note of what he perceived as an inconsistency, pointing out that both the 
beneficiary and were shown as holding multiple positions within the petitioner's organizational 
hierarchy. The director concluded that the job descriptions the petitioner offered failed to establish that the 
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beneficiary would allocate his time primarily to tasks of a qualifying nature. Therefore, a decision was issued 
on April 9, 2013 denying the petition. 
On appeal, counsel provides a brief m which he asserts that the petitioner was harmed by improper 
representation of an incompetent attorney who failed to submit proper supporting evidence. Counsel also 
contends that the service center that issued the petitioner's RFEs erred by issuing a second RFE without 
pointing out deficiencies in the petitioner's response to the original RFE. Counsel offers supplemental 
evidence addressing the beneficiary's employment capacity in an effort to establish that he qualifies for 
immigrant classification as a multinational manager or executive. 
Upon review, counsel's assertions are not persuasive in overcoming the director's adverse decision. First, 
with regard to counsel's claim that the petitioner was harmed by ineffective assistance of counsel, any appeal 
or motion based upon such a claim is required to meet the following criteria: (1) claim must be supported by 
an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into 
with counsel with respect to the actions to be taken and what representations counsel did or did not make to 
the respondent in this regard, (2) counsel whose integrity or competence is being impugned must be informed 
of the allegations leveled against him and be given an opportunity to respond, and (3) the appeal or motion 
must reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any 
violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. 
637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). In the present matter, counsel neither claims nor provides 
evidence to show that the above parameters have been met. Therefore, counsel cannot succeed in overcoming 
the denial based on the claim of ineffective assistance of counsel. 
Second, the AAO rejects counsel's assertion that the second RFE should have informed the petitioner of any 
inadequacies in its response to the original RFE. Contrary to counsel's contention, there is no statute or 
regulation that requires the issuance of an RFE or a notice of intent to deny (NOID). The regulations at 
8 C.F.R. §103.2(b)(8)(ii) and (ii) expressly permit the director to deny a petition when any initial evidence is 
missing or simply based on a finding that the petitioner failed to establish eligibility. The issuance of an RFE 
or NOID is strictly within the discretion of the director. Accordingly, as the director is under no requirement 
to provide notice of a possible adverse finding, there is no requirement that when issuing multiple RFEs, the 
director must address any deficiencies of the petitioner's prior submissions. 
Lastly, the AAO concurs in the director's finding that the petitioner failed to establish that the beneficiary's 
proposed position would require the beneficiary to allocate his time primarily to tasks within a qualifying 
managerial or executive capacity. That being said, the AAO does not find that there are any factual 
inconsistencies that either misstate or misrepresent the truth about the beneficiary's position or that of his 
subordinate and coworker. While the beneficiary's performance of job duties under two separate job titles 
gives the AAO cause to question how much of the beneficiary's time would be allocated to qualifying tasks 
versus those that are non-qualifying, this is merely an issue of eligibility rather than one of credibility. 
Similarly, when the company's vice president is tasked with the executive or managerial duties that are 
suggestive of his job title while simultaneously occupying a position that falls below that of vice president 
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within the company's hierarchy, the AAO may question whether the petitioner is adequately staffed when 
determining the petitioner's overall eligibility. However, this too does not give rise to questions concerning 
the petitioner's credibility. Rather, these facts should and will be explored in the context of the petitioner's 
eligibility, which is undermined when a petitioning entity is understaffed or otherwise unable to relieve the 
beneficiary from having to allocate his time primarily to the performance of non-qualifying operational tasks. 
A comprehensive analysis of the relevant factors concerning the beneficiary's proposed employment is 
provided in the discussion below. 
Section 203(b) of the Act states in pertinent part: 
(l) 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 petformed by the alien. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 110l(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; 
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NON-PRECEDENT DECISION 
(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 10l(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) direct s 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 discretio nary decision-making; and 
(iv) receive s 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 first 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 revea l the true nature of the 
beneficiary's 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) . However , a comprehensive discussion of the beneficiary 's employment capacity will 
rarely be limited to a discus sion of job duties. The AAO will also consider other relevant factors , which may 
include job description s of the beneficiary's subordinate employees, the nature of the business conducted by 
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the petitioner, the stze of the petitioner's subordinate staff, and any other facts contributing to a 
comprehensive understanding of the beneficiary's actual role within the petitioning entity. 
In the present matter, given the beneficiary's dual roles -that of president/CEO and that of Consultancy and 
supervision manager - it is unclear which of the beneficiary's duties would be categorized under the proposed 
position of president/CEO and which would be categorized under the beneficiary's other position title, which 
was depicted two tiers below that of president/CEO in the organizational chart provided at the time of filing. 
Looking to the most recent job description offered by the beneficiary on appeal in a statement dated June 3, 
2013, the AAO cannot conclude that the beneficiary would allocate his time primarily to the performance of 
managerial- or executive-level tasks. The beneficiary claims that he would allocate 30% of his time to setting 
goals, formulating policy, and planning the petitioner's finances and budgets. The job duties that are listed 
under this general set of responsibilities would include developing and executing budgets, developing new· 
service agreements, and actively looking for new business opportunities, all of which can be deemed as 
operational and administrative tasks rather than tasks in a managerial or executive capacity. The beneficiary 
also indicated that he would create an annual and quarterly budgeting plan in addition to developing and 
executing financial budgets. However, there is no apparent distinction between these two types of budget­
related duties. 
Next, the beneficiary indicates that he would allocate another 35% of his time to managing and overseeing 
projects, which would include determining project participants. While not clearly explained, it would appear 
that the beneficiary would be directly involved in the selection and hiring process, which, despite the implied 
discretionary authority, is a human resources task that conveys the beneficiary's direct involvement in a daily 
operational aspect of the business. Additionally, the beneficiary does not explain what actual daily activities 
he would perform in the course of overseeing the execution plan and budget of each project. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. !d. Based 
on the lack of specificity, the petitioner has not established that the beneficiary's project management 
responsibilities are consistent with his role as president/CEO, but rather are incorporated into the 
beneficiary's second role as consultancy and supervision manager. It is therefore unclear whether the job 
duties that come under the heading of project management and oversight are relevant to the proposed position 
of president/CEO. 
Continuing to the third aspect of the beneficiary's job description, the beneficiary indicates that he would 
spend 25% of his time managing business development, software research and development, marketing, 
human resources, and office management. In reviewing the petitioner's organizational composition at the 
time the petition was filed, it is unclear which of the petitioner's employees, other than the beneficiary 
himself, was available to carry out the marketing and customer service tasks, which, without further 
explanation, would not be deemed as tasks within a qualifying managerial or executive capacity. While the 
beneficiary claims that he would supervise the implementation of marketing and sales strategies and review 
reports, it is not clear who, at the time of filing was actually carrying out the strategies and providing the 
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reports for the beneficiary to review. The beneficiary again mentions his role in creating the petitioner's 
annual budget, which appears to be an overlap of the budget-related duties he already cited, as discussed 
above. Additionally, the beneficiary's role in overseeing market research is unclear, as the record does not 
establish who would actually conduct the market research. Lastly, while the AAO does not question the 
beneficiary's authority to hire and fire prospective and existing employees of the company, in general the 
recruitment, training, and orientation of employees would appear to be the function of a human resources 
employee. 
Lastly, the beneficiary states that he would maintain international relationships and develop on-going business 
relations for the remaining 10% of his time. The job duties listed in this category include acting as the 
primary point of contact in "relationships with high value prospects" and existing accounts, identify and 
acquire new business, maintain contacts with key suppliers, customers, and key industry players, and ensure 
customer satisfaction by maintaining working relationships with business partners. These job duties indicate 
that the beneficiary would assume an active role in non-qualifying operational tasks associated with selling 
the petitioner's products and services and thus do not fit within the statutory definitions of managerial or 
executive capacity. 
While the AAO 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 position in question. 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" petform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In this instance, the beneficiary offered a job description that had several important deficiencies. First, the 
beneficiary failed to allocate time constraints to individual job duties. While the beneficiary clearly offered a 
time constraint as indicated above, he assigned the percentage of time to each of four broad categories rather 
than to the job duties listed within each of the categories, several of which included multiple non-qualifying 
job duties. This lack of a time allocation pertaining to specific job duties precludes the AAO from being able 
to determine how much time the beneficiary would allocate to non-qualifying tasks. Second, the beneficiary 
did not differentiate between his two distinct roles and job titles, despite the fact that the distinction was 
clearly made in the organizational chart offered in response to the original RFE. 
Finally, the record lacks evidence to establish that the beneficiary had the requisite support staff at the time 
the petition was filed to relieve the beneficiary from having to allocate his time primarily to the performance 
of non-qualifying operational and administrative tasks. Although the petitioner's organizational chart lists six 
positions (excluding the independent contractors and the board of directors), there is no evidence to show that 
the employees listed in the chart were actually part of the petitioner's organizational hierarchy at the time of 
filing. 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. I 998) (citing 
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Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The very fact that the 
beneficiary and his vice president subordinate both occupy multiple positions within the organization strongly 
indicates that the petitioner was not adequately staffed. This factor, coupled with the adverse findings 
pertaining to the beneficiary's job description, preclude the AAO from reaching a favorable finding. 
Therefore, the AAO finds that the petitioner has failed to establish that the beneficiary would be employed in 
the United States in a qualifying managerial or executive capacity. Accordingly, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibilit¥ for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.