dismissed EB-1C Case: Healthcare Management

identifying data deleted to 
prevent clearly unwarranted 
illv ..... of pmonal privacy 
PUBLIC COPY 
DATE: APR 3 0 2012 
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 
OFFICE: NEBRASKA SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
.' 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Georgia 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)(1)(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 1-140 the petitioner submitted a brief statement dated July 30, 2007, listing the 
regulatory requirements that pertain to the instant filing and the supporting documents that were being 
submitted to establish the petitioner's eligibility. Accordingly, the petitioner provided its financial and 
corporate documents as well as documents pertaining to the foreign affiliate where the beneficiary was 
employed prior to entering the United States. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated December 24, 2008 informing the 
petitioner of various evidentiary deficiencies. The RFE included a request for evidence and information 
pertaining to the beneficiary's U.S. and foreign employers as well as the beneficiary's employment within 
each entity. 
The petitioner provided a response dated March 12, 2009 along with supporting documents, including job 
descriptions, the petitioner's wage and tax forms, and the foreign entity's bank and business documents. 
After reviewing the record, the director concluded that the petitioner failed to establish eligibility and 
therefore issued a decision dated April 8, 2009 denying the petition. The director determined 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 observed that based on the financial information provided in 
the petitioner's 2007 tax return, the petitioner would not have the financial ability to hire an employee to take 
the place of the position that the beneficiary is currently occupying, thus leading the director to question 
whether the petitioner would be able to relieve the beneficiary from having to focus the primary portion his 
time on the performance of non-qualifying tasks. 
On appeal, the petitioner submits a statement claiming that the 2007 tax return shows that there were 
sufficient net current assets to cover the cost of paying both the beneficiary's salary and the salary of an 
employee who would replace the beneficiary in his current position. The petitioner also challenges the 
director's adverse fmding regarding the petitioner's failure to establish the beneficiary's credentials for 
managing a medical/patient care department. The petitioner further asserts that during his prior employment 
with a different U.S. entity, the beneficiary gained knowledge and experience in managing a medical/patient 
care department. 
Although the AAO finds that the petitioner submitted sufficient documentation to establish its fmancial ability 
to employ the beneficiary, the petitioner's submissions both prior to and at the time of the appeal are not 
persuasive in establishing that the beneficiary would be employed in a qualifying managerial or executive 
capacity. 
. Page 3 
It is noted that all of the petitioner's submissions have been reviewed. All relevant documentation that 
pertains directly to the key issue in this matter will be fully addressed in the discussion 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 afflliate 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 flle 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. 
The primary issue to be addressed in this proceeding is the beneficiary's employment capacity in his proposed 
position with the petitioning U.S. entity. Specifically, the AAO will examine the record to determine 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 10 1 (a)(44)(A) of the Act, 8 U.S.c. § 1 101 (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; 
Page 4 
(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 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. 
As a preliminary matter, the AAO notes that while the director's comprehensive assessment focused on the 
benefIciary'S qualifIcations to manage several departments within the petitioning entity, a determination of 
the benefIciary'S managerial or executive capacity must necessarily include a discussion of the benefIciary'S 
job duties in his proposed position. See 8 C.F.R. § 204.5(j)(5). Merely establishing that the benefIciary 
would have discretionary authority and an elevated position within the petitioner's organizational hierarchy is 
not suffIcient, as the benefIciary'S actual duties themselves reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afJ'd, 905 F.2d 41 (2d. Cir. 1990). 
In the present matter, the record does not include a job description for the position of president, which is the 
benefIciary's proposed position with the petitioning entity. Furthermore, the AAO fInds that the director was 
correct to point out that the proposed position would require the benefIciary to manage both the 
medical/patient care department as well as the IT department, which would likely be minus one employee for 
an unspecifIed period of time, as the record lacks evidence to show that the petitioner has the resources to 
replace the benefIciary if he were to adjust his status to that of a permanent resident and assume the proposed 
position of president. While the AAO does not dispute the likelihood that the petitioner would seek to fIll the 
benefIciary'S vacant position should the need arise, eligibility must be established at the time of fIling the 
petition. 8 C.F.R. § 103.2(b)(1). 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). As there is no evidence that the petitioner would be able to immediately fIll the benefIciary's current 
-Page 5 
IT position with a new employee, it is unclear who, other than the beneficiary, would be able to carry out the 
non-qualifying operational tasks within the IT department. 
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-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). As stated above, the record lacks sufficient information 
describing the specific tasks the beneficiary would be expected to perform in his proposed position. This lack 
of information coupled with questions concerning the expected vacancy in the petitioner's IT department 
following the beneficiary's move to a higher position with the petitioning entity leads the AAO to the 
conclusion that the petitioner would be unable to employ the beneficiary in a qualifying managerial or 
executive capacity. On the basis of this conclusion the instant petition cannot be approved. 
While not addressed in the director's discussion, the AAO finds that the petitioner failed to establish that the 
beneficiary was employed abroad for one year during the relevant three-year period. The regulation at 8 
c.P.R. § 204.5G)(3)(i) states, in part, the following: 
A) If the alien is outside the United States, in the three years preceding the filing of the 
petition the alien has been employed outside the United States for at least one year in 
a managerial or executive capacity by a firm or corporation, or other legal entity, or 
by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity[.] 
The clear language of the statute indicates that the relevant three year period is that "preceding the time of the 
alien's application for classification and admission into the United States under this subparagraph." 
§ 203(b)(1)(C) of the Act, 8 U.S.c. § 1153(b)(1)(C). The statute, however, is silent with regard to aliens who 
have already been admitted to the United States in a nonimmigrant classification. In promulgating the 
regulations on section 203(b)(1)(C) of the Act, the legacy Immigration and Naturalization Service (INS) 
concluded that it was not the intent of Congress to exclude L-1A multinational managers or executives who 
had already been transferred to the United States from this employment-based immigrant classification. 
Specifically, INS stated the following with regard to the interpretation of the Congressional intent behind the 
relevant statutory provisions: 
The Service does not feel that Congress intended that nonimmigrant managers or executives 
who have already been transferred to the United States should be excluded from this 
classification. Therefore, the regulation provides that an alien who has been a manager or 
executive for one year overseas, during the three years preceding admission as a 
nonimmigrant manager or executive for a qualifying entity, would qualify. 
Page 6 
56 Fed. Reg. 30703,30705 (July 5, 1991). 
In other words, for those aliens who are currently in the United States in L-1A status, the relevant time period 
mentioned in the statute should be the three-year period preceding the time of the alien's application and 
admission as (or change of status to) an L-1A multinational managerial or executive classification. 
In the instant matter, the beneficiary's resume, which the petitioner submitted in response to the RFE, 
indicates~eneficiary entered the United States to work for and was later 
hired by _prior to coming to work for the petitioning entity in December of 2006. Thus, there is no 
evidence indicating that the beneficiary entered the United States for the purpose of "working for the same 
employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was 
employed overseas." Accordingly, the beneficiary does not fit the criterion described in 8 C.F.R. 
§ 204.5(j)(3)(i)(B) and must have his period of employment abroad analyzed under the criterion described at 
8 C.F.R. § 204.5(j)(3)(i)(A), which states that the relevant three-year time period is that which falls within the 
three years prior to the filing of the instant petition. As the instant petition was filed in 2007 and it is well 
established that the beneficiary was present in the United States during the three-year period that immediately 
preceded such filing, i.e., from 2004 and 2007, it cannot be concluded that the beneficiary was employed 
abroad during the relevant time period, regardless of whether or not the petitioner is able to provide evidence 
of the beneficiary'S qualifying employment 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.