dismissed EB-1C Case: Healthcare Staffing

111 rnTJC copy 
DATE: 
JUN 1 9 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
L'. S. Citizenship and Immigration Services 
Administrative Appeals Oflice (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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. § 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 docnments 
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 AAO inappropriately applied the law in reaching its 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 motion 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.S(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
"nvw.uscis.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 an engaged in healthcare staffing and IT staffing services, and it seeks to employ the 
beneficiary as director of international recruitment and immigration. Accordingly, the petitioner endeavors to 
classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(\)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.c. § I I 53(b)(I)(C), as a multinational executive or manager. 
The director denied the petition on July 29, 2009. The petitioner filed a motion to reopen on August 24, 2009. 
The director again denied the petition. In the director's decision, he concluded that the petitioner failed to 
establish that the beneficiary's proposed employment in the United States is within a qualifying managerial or 
executive capacity, and the petitioner failed to establish that the initial job opportunity was a legitimate job 
offer. On appeal, the petitioner disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. 
Section 203(b) of the Act states in pertinent part: 
(\) 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-\40 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 AAO will examine the record to determine whether the petitioner submitted sufficient evidence to 
establish that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.c. § I 101 (a)(44)(A), provides: 
Page 3 
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 frre or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, Junctions 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. § 1 101 (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 examining the executive or managerial capacity of the beneficiary, uscrs will look frrst to the petitioner's 
description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly supports the pivotal role 
of a clearly defmed job description, as the 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), ajfd, 905 F.2d 41 (2d. Cir. 1990); see 
also 8 C.F.R. § 204.5(j)(5). That being said, however, uscrs reviews the totality of the record, which 
includes not only the beneficiary's job description, but also takes into account the nature of the petitioner's 
business, the employment and remuneration of employees, as well as the job descriptions of the beneficiary's 
subordinates, if any, and any other facts contributing to a complete understanding of a beneficiary's actual role 
within a given entity. 
In support of the Form 1-140, the petitioner submitted a support letter dated May 29, 2008 that slated the 
beneficiary is employed by the petitioner as Director of International Recruitment pursuant to an approved L­
IB nonimmigrant status. The petitioner explained that in the position of Director ofInternational Recruitment, 
the beneficiary will "spearhead [the petitioner's] expansion of recruitment in countries other than India - such 
as Philippines, China, Turkey, UK, Australia, Canada and other countries based on specialization and core 
competence in [the petitioner's] recruitment business model gained as Manager ofInternational Recruitment & 
Immigration covering the territory of India." The beneficiary's job responsibilities in his proposed 
employment with the petitioning entity would include the following: 
• Developing recruiting plans and identifying key activities and priorities; 
• Implementing strategic recruitment planning based on [the petitioner's] model; 
• Evaluating and developing recruitment policies and procedures consistent with established 
company standards and best business practices; 
• Setting and monitoring annual recruiting budget; 
• Implementing and communicating to [the petitioner's] centers recruitment strategies and 
solutions; 
• Managing and developing reporting staff at [the petitioner's] Recruitment centers; 
• Consistently demonstrating and incorporating into recruiting activities principles of safety and 
infection control; 
• Planning recruiting calendar to ensure optimum staffing levels; 
• Monitoring annual and monthly calendar of recruiting activities; 
• Planning long-term retention of nurses; by exploring options and choices available in 
International nurse recruitment; 
• Identifying, qualifying, matching, and managing nursing candidates from different countries; 
• Coordinating activities between [the petitioner's] international Recruiting centers; 
• Spearheading International Nurse Recruitment meetings and providing CEO feedback; 
• Identifying countries for nurse recruitment based on demographics, competencies and specific 
demands; 
• Defining recruitment criteria for each identified country; 
• Developing and drafting nurse recruitment packet for each [the petitioner's] center; 
• Building a strong and extensive pipeline of International nurse candidates; 
• Standardizing interview questionnaires; 
• Defining and communicating criteria for using a recruitment agency; 
• Planning, coordinating and participating in international recruitment programs, job fairs, 
career events; 
• Traveling internationally for Recruiting seminars and presentations; 
• Overseeing clinical interviews; 
• Approving travel arrangements and hotel reservations; 
• Defining and coordinating annual training requirements; and 
• Establishing support systems/networks to better prepare nurses and their families for potential 
culture shock and devising means for closely monitoring the impact on the nurse. 
The petitioner provided a list of job duties that was not accompanied by a percentage breakdown. Due to the 
overly general and vague list of job duties, the AAO is unable to gain a meaningful understanding of how 
much time the beneficiary spent performing qualifying tasks versus those that would be deemed non­
qualifying. 
Page 5 
The petitioner provided a vague and nonspecific description of the beneficiary's duties that fails to demonstrate 
what the beneficiary will do on a day-to-day basis. For example, the petitioner stated vague duties such as 
"developing recruiting plans and identifying key activities and priorities," "implementing strategic recruitment 
planning," and "evaluating and developing recruitment policies and procedures consistent with established 
company standards and best business practices." The petitioner did not define the petitioner's goals and 
policies. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description ofthe beneficiary'S daily job duties. The petitioner has 
failed to provide any detail or explanation of the beneficiary's activities in the course of his daily routine. The 
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., LId. v. Sava, 724 F. 
Supp. at 1108. The petitioner's descriptions of the beneficiary's position do not identify the actual duties to be 
performed, such that they could be classified as managerial or executive in nature. 
The job description also includes several non-qualifying duties such as "planning recruitment calendar"; 
"setting and monitoring annual recruiting bUdget"; "planning long-term retention of nurses"; "identifying, 
qualifying, matching, and managing nursing candidates from different counties"; "developing and drafting 
nurse recruitment packet"; and "planning, coordinating and participating in international recruitment programs, 
job fairs, career events." The petitioner did not indicate who will be in charge of the market research, the 
development of the marketing program, or the development of the expansion strategies. It appears that the 
petitioner will be responsible for all aspects of developing and implementing the recruitment program 
including budgeting, marketing, sales, and training without the assistance of any subordinate employees. The 
petitioner did not provide an organizational chart to indicate subordinate employees that will assist the 
beneficiary. The petitioner stated that the beneficiary will review reports and assist in developing the budget 
but it did not state who would write the reports and prepare the budget. 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 Intn 'I., 19 I&N Dec. at 604. The job description submitted by the petitioner provides little insight 
into the true nature of the tasks the beneficiary will perform. 
On July 29, 2009, the director denied the current petition. On August 24, 2009, the petitioner filed a motion to 
reopen the decision. On motion, the petitioner provided the same job duties for the proffered position as listed 
above. The petitioner stated in a letter dated August 17, 2009 that the position of Director of International 
Recruitment will be "elevated to a CEO-level reporting position and will head the US-based Worldwide 
recruitment of the Petitioner and have US-based recruitment managers for each country (including India) 
reporting to it." The petitioner also stated that the beneficiary will remain in a specialized knowledge position 
until the 1-140 petition is approved and then the beneficiary will be elevated to a managerial position. 
On motion, the petitioner provided an organizational chart whereby the beneficiary will supervise a 
recruitment manager located in the Philippines, China, India, Turkey, Canada and "more countries." The 
petitioner also stated that the 25 duties listed in the beneficiary's job description for the proffered position "for 
each country will be carried out by each of the respective RM country managers and the Director of 
International Recruitment will oversee each of the function for each country through the individuals [the 
petitioner's] RM country manager." The petitioner also stated that the recruitment country manager will also 
have "1-2 level of subordinate staff reporting to them." 
Page 6 
In addition, the petitioner provided a new list of job duties with a percentage breakdown for each duty that will 
be performed by the beneficiary. The new job duties focus more on the beneficiary managing the recruitment 
managers. On motion, the duties "elaborated" by the petitioner are very different from the initial duties 
presented by the petitioner in the 1-140. For example, the new duties include managing other managers such as 
"approve short-term and long-term recruitment planning," "approve and optimize worldwide recruitment 
budget," '''develop professional competence among managers," "evaluate manager performance," and "ensure 
RM country manager's compliance to internal systems and controls that are consistent with company policy 
and budget." 
On motion, the beneficiary's duties have changed to managing country managers that were not mentioned at 
all in the initial job description. On motion, a petitioner cannot offer a new position to the beneficiary, or 
materially change a position's title, its level of authority witltin the organizational hierarchy, or the associated 
job responsibilities. The petitioner must establish that the position offered to the beneficiary when the petition 
was filed merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg. Corum'r 1978). A petitioner may not make material changes to a petition in an effort to 
make a deficient petition conform to USC IS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). 
On February 17, 20 I 0, the director dismissed the motion concluding that the petitioner failed to establish that 
the beneficiary's proposed employment in the United States is within a qualifying managerial or executive 
capacity, and the petitioner failed to establish that the initial job opportunity was a legitimate job offer. 
On appeal, the petitioner states that the position offered to the beneficiary in the current 1-140 petition as 
Director of International Recruitment is a different position then the position outlined in the new 1-140 as Vice 
President, International. The petitioner explains that the current petition is a position for recruiting while the 
position in the new 1-140 is a position in sales. The petitioner also explains that the petitioner needs to fill both 
positions, the Vice President, International and the Director of International Recruitment. The petitioner 
further states that recent changes in the petitioner's business operations required the petitioner to fill the 
position of Vice President, International, a position that was not available when the current 1-140 petition was 
filed. 
Although the petItlOner explains why the proposed job differs from the current petition to the new 
1-140 petition filed by the petitioner, it does not explain why the duties changed from when the current petition 
was filed to the duties described in the motion to reopen. As noted above, the petitioner provided new duties 
for the proposed position on motion that focused on the beneficiary's management of country recruitment 
managers. As noted above, on motion, a petitioner cannot offer a new position to the beneficiary, or materially 
change a position's title, its level of authority within the organizational hierarchy, or the associated job 
responsibilities. The petitioner must establish that the position ofTered to the beneficiary when the petition was 
filed merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 1&N Dec. 
248, 249 (Reg. Corum'r 1978). 
In addition, on motion, the petitioner stated that the beneficiary will manage recruitment managers in several 
counties but the petitioner did not provide any evidence that these managers are actually employed by the 
petitioner. The petitioner did not provide evidence of employment or if in fact the petitioner has established 
offices in the counties listed in the organizational chart. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflici, 
Page 7 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Crafi a/California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be 
employed in a managerial or executive capacity. 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. § 
214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be perfonned 
by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id. 
Beyond the decision of the director, the record lacks a substantive job description establishing what job duties 
the beneficiary perfonned during his employment abroad. Conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfY the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F. 2d 41 (2d. Cir. 1990); A'Yr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. at 1108. In the absence of a substantive job description establishing what job duties the 
beneficiary performed during his employment abroad, the petitioner has not established that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity. 
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. 1'. 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). 
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.