dismissed EB-1C Case: Import And Export Of Special Cables

(b)(6)
DATE : OCT 0 7 2013 
INRE : Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Ser v ice ~ 
Office of Adminisrrarive App eals 
20 Massachu setts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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-pr ecedent decision . The AAO does not announce new construction s 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 Appe al 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. § I 03.5. Do not file a motion directly with the AAO . 
Thank you, 
~4-
,L-Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner, a New Jersey corporation, is engaged in the import and export of high quality special cables. 
The petitioner states that it is a subsidiary of located in Italy. It seeks to employ the 
beneficiary as its president and chief executive officer (CEO). Accordingly, the petitioner endeavors to 
clas sify the benefi ciary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § ll53(b)(l)(C) , as a multinational executive or 
manager. 
The director denied the petition, finding that the petitioner had not established that it will employ the 
benefic iary in a managerial or executive capacity. 
On appeal, couns el assetts the petitioner has submitted sufficient evidence to establish that the beneficiary 
will be employed in a managerial capacity as defined at section 1 Ol(a)(44)(A) of the Act. 
I. The Law 
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 exec utive. 
The language of the statute is specific in limiting this provision to only those executives and manager s 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 I-140 forclassification 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 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
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) 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; 
(ii) supervi ses 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. § 110l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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 
(b)(6)
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NON-PRECEDENT DECISION 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity , USCIS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization . Section 101(a)(44)(C) of the Act. 
II. The Issue on Appeal 
The sole issue addre ssed by the director was whether the petitioner establish ed that the beneficiary would be 
employed in a qualifying managerial or executive capacity in the United States. 
In denying the petition, the director noted the petitioner's failure to respond to a request for evidence (RFE) 
which asked the petitioner to submit job duty descriptions and education levels for the beneficiary's 
subordinates, information on whether the subordinates were full or part-time employees , and, if applicable, 
evidence of paym ents to contractors. The director also observed that the petitioner had only two employees 
as of the date of the filing of the petition, stating that the initial evidence suggested that it was more likely 
than not that the beneficiary was primarily performing non-qualifying operational duties rather than 
qualifying managerial duties . 
On appeal, counsel asserts that the beneficiary's role with the petitioner is "suffici ently managerial" to 
qualify the beneficiary for the benefit sought. Counsel states that the beneficiary over sees the operational 
management of the petitioner. Counsel points to financial documentation submitted on the record, 
specifically wages paid by the petitioner to a subordinate employee to whom the beneficiary delegates non­
qualifying operational duties. Futther, counsel notes evidence in financial statements indicating that the 
petitioner paid $50,000 in professional fees to accountants and an attorney in 2011 and $75,000 in such fees 
in 2012 . Counsel asserts that these payments to professionals establish that the beneficiary is not performing 
operational tasks, but overseeing professional employees performing essential functions of the business. 
Counsel states that the beneficiary devotes 100% of his time to performing managerial duties and that the 
director placed undue emphasis on the fact that he will supervise only one full-time subordinate employee. 
Coun sel's assettions are not persuasive. Upon review of the petition and the evidence, and for the reasons 
discussed herein, the petitioner has not established that it will employ the beneficiary in a qualifying 
managerial or executive capacity . 
In order to detennine whether the beneficiary would be employed in a qualifying executive or managerial 
capacity, USCIS will look first to the petitioner's description of the job duties. See 8 C.P.R. § 204.5(j)(5) . In 
response to the director's RFE, the petitioner provided a sufficiently detailed statement describing the 
beneficiary's job duties , including percentages of time spent by the beneficiary on various tasks. However, 
(b)(6) NON-PRECEDENT DECISION 
Page 5 
when examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and those of his or her subordinate employees, the 
nature of the petitioner's busine ss, the employment and remuneration of employees, and any other facts 
contributing to a complete under standing of a beneficiary's actual role in a business. Despite the petitioner's 
submission of a detailed duty description for the beneficiary's position , the evidence as a whole does not 
support a conclusion that the beneficiary will primarily perform the stated managerial duties. 
In support of the petition , the petitioner stated that it had two employees , the beneficiary and a subordinate 
employee for whom no job title or job description was provided. The petitioner submitted evidence that the 
petitioner had earned $1 ,079,093 in revenue in 2011, that it conducted substantial business in specialty cables 
in the United States , and that it had recently signed a lease for a 10,000 square foot warehouse for this 
purpose . The petitioner indicated that it anticipates hiring a warehouse manager , an imports manager , a 
logistics specialist and an inventory manager. 
Due to the lack of information regarding the beneficiary's subordinates, the director asked in the RFE that 
the petitioner submit an organizational chart showing the number of subordinate manag ers and supervisors or 
other employees reporting directly to the beneficiary along with job titles , job duty descriptions, education 
levels and whether such employees worked full- or part-time. Additionally, the director also requested, if 
applicable, evidence of the company's use of contractors, including the number and types of contractors 
providing services, their duties, and evidence of payments made. 
In response, the petitioner stated that it employed two outside sales representatives and two inside sales 
representatives reporting to the beneficiary as of the date of its response to the RFE. In addition, the 
petitioner stated that it contracted the services of . for warehou sing, logistics and 
intermodal transport of its imported inventory. The petitioner submitted an organizational chart reflecting 
its staffing as of the date of filing, which indicates that the beneficiary had one subordinate, a corporate 
secretary, who oversaw eleven contractors devoted to warehouse and logistics operations provided by The 
The petitioner provided a letter from stating that it had provided 
warehousing and logistics services for the petitioner from sometime in 201 I until November 2012 "when the 
petitioner leased its own warehouse space and began operating its own logistics procedures ." The petitioner 
did not provide duty descriptions or education levels for its asserted full-time employees, or submit evidence 
of wages paid to contractors, as was requested by the director. With respect to the inside and outside sales 
representatives, the petitioner did not provide evidence of when they were hired, or specify whether they are 
employees or contractors. 
The petitioner originally stated in support of the petition that it had two employees, but in response to the 
director's RFE the petitioner alternatively stated that it had two full-time employees, the beneficiary and the 
corporate secretary , and that it had hired four sales representatives. On appeal, counsel now emphasizes that 
the petitioner paid $50,000 in accounting and legal fees in 2011, and $75,000 in 2012, and contends that 
these payments establish that the beneficiary oversees professional subordinates. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
In sum, the petitioner has provid ed insufficient evidence regarding the benefic iary's subordinates and thereby 
fail ed to adequately support its claim that the beneficiary performs prim arily manag eria l duties. First, as 
noted above, the director specifically requested duty descriptions and education level s for the petitioner's 
full-time employees, and evidence of payment s made to any contract employees. However , the petitioner did 
not submit this documentation in response to the director and now submit s on appeal only a duty descr iption 
for the petitioner's sole full-time employee, the corporate secretary. The petitioner was put on notice of this 
required evidence and given a reasonable opportunity to provide it befor e the visa petition was adjudicated. 
The petitioner failed to submit the requested evidence and now submits it, in part, on appeal. However , the 
AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec . 764 (BIA 1988); 
Matt er of Obaigb ena, 19 I&N Dec . 533 (BIA 1988). 
Where, as here , a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respo nd to that deficiency, the AAO will not accept evidence offered · for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). If the petitioner had wanted the aforementioned evidenc e of legal and accounting fees paid 
to be considered, it should have submitted the documents in response to the director' s request for evidence. 
Id. Under the circumstances, the AAO need not and does not consider the sufficiency of the evidence 
submitted on appeal. 
Additionally, the evidence submitted with respect to the petitioner's organizational structure includes 
material discrep ancies which leaves question as to whether the petitioner has sufficient subordinate 
employees to allow him to primarily petform managerial duties. First, despite asserting in response to the 
RFE that it had recently hired four sales representatives, the petitioner makes no mention of these claimed 
sales representatives on appeal. Instead, the petitioner emphasizes that it utilizes the services of lega l and 
accounting profe ssionals, workers who were not mentioned in the petitioner' s respons e to the RFE. Further, 
the petitioner asserts that the beneficiary delegates all non-qualifying operational duties to the corporate 
secretary . However, on appeal, counsel indicates that the amounts paid in professional fees in 2011 and 2012 
do not include payments to contractors who are claimed to report to the corporate secretary, and no fees paid 
to operational contractors are reflected in the submitted tax or accounting documentation. It is incumbent 
upon the petition er to resolve any inconsistencies in the record by independent objective evidenc e. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in suppo11 
of the visa petition. Matter of Ho, 19 I&N Dec . 582,591-92 (BIA 1988). 
The petitioner doe s not demon strate that it has sufficient operational employees as necessary to operate the 
business, including its 10,000 square foot leased warehouse, and allow the beneficiary to primarily perform 
manager ial duties . As noted, the letter submitted from The states that their ser vices 
terminated in Nov ember 2012 , ap proximately two months after the filing of the petition, and that these 
services would thereafte r be handled directly by the petitioner. The petitioner submits no explanations or 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
evidence to address the further employment of subordinate operational employees. The petitioner has not 
submitted direct evidence of payments made to contractors, or contracts with contractors , to establish that it 
has sufficient operational employees to carry out the routine functions of the business. The record 
demonstrates that the petitioner has one full-time employee, the corporate secretary. However, the petitioner 
has not sufficiently described this employee's duties and has not established how this employee will relieve 
the beneficiary from performing non-qualifying duties. 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'r 1998) (citing Matter of Treasure Craft of California , 14 I&N Dec . 190 
(Reg. Comm'r 1972)). 
Additionally , despite asserting that the beneficiary devotes 100% of his time to managerial duties, there is 
evidence in the record which indicates that the beneficiary performs duties outside the scope of those 
included in his position description. For example, the beneficiary's name appears as a contact on various 
customer purchase orders , thus suggesting that he is directly involved in sales. Further , the petitioner states 
that the beneficiary's duties include directing management, establishing corporate goals and policies, 
delegating duties and assignments, formulating and implementing plans for expanding the company's client 
base, and formulating concepts and strategic initiatives to promote and increase sales. However, the 
petitioner has not demonstrated that it has managers or other subordinates to whom the beneficiary would 
delegate assignments or who would carry out the plans and strategies discussed in his job description. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by 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). 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See§ 10l(a)(44)(C) of the Act, 8 U.S.C. § 110l(a)(44)(C). However, it is appropriate for USCIS 
to consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial or non­
executive operations of the company, or a "shell company" that does not conduct business in a regular and 
continuous manner. See, e.g. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 
153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when users notes 
discrepancies in the record and fails to believe that the facts asserted are true . See Systronics, 153 F. Supp. 2d 
at 15. 
On appeal, counsel also assetts that the petitioner acts in a managerial capacity through his management of 
the corporate secretary and through his management of contracted professionals such as accountants and 
attorneys . The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 110l(a)(44)(A)(i) and (ii). 
Personnel managers are required to primarily supervise and control the work of other supervisory, 
(b)(6)
NON-PRECEDENT DECISION 
Page 8. 
professional, or managerial employees. Contrary to the common underst anding of the word "manager," the 
statute plainly states that a "first line supervisor is not considered to be acting in a managerial capacity 
merely by virtue of the supervisor's supervisory duties unles s the employees supervised are profess ional." 
Section J01(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other employees, the beneficiary 
must also have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. In evaluating whether the beneficiary manages professional employees, the AAO must 
evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry into the 
field of endeavor. Section 10l(a)(32) of the Act, 8 U.S .C. § 1101(a)(32), states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, phy sicians, surgeons, and teach ers in 
elementary or secondary school s, colleges, academies, or seminaries." The term "profess ion" contemplates 
knowledge or learning, not merely skill, of an advanced type in a given field gained by a prolonged course of 
specialized instruction and study of at least baccalaureate level, which is a realistic prereq uisite to entry into 
the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm 'r 1988); Matter of Ling , 13 l&N 
Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D . 1966). 
The petitioner has not submitted sufficient evidence to demonstrate that the beneficiary will be employed as 
a personnel manag er. As prev iously noted , the petitioner acknowledges that it has only one full-time 
employee. Although the record suggests that the petitioner may have form erly employed contract employees 
to perform warehou sing duties , the letter from specifically states that these services were 
terminated once the petitioner leased its own facilities and the petitioner submits no evidence that it currently 
employs other subordinate employees to handle day-to-day operations. As such, the beneficiary' s lone 
subordinate, the corporate secretary, has no subordinates of his own and cannot be deemed a supervisor or 
manager. Further, the petitioner provided no educational credentials for the corporate secre tary as required 
to establish the beneficiary as a professional consistent with the Act. 
While contract attorneys and accountants the petitioner engaged to perform services may be professionals, 
the petitioner has submitted no evidence, beyond a vague line item toward s "professional fees" in unaudited 
financial statement s, to establish that the beneficiary is primarily engaged in supervi sing these reference d 
accountants and attorneys. Further, it has not been established that these independent accountants and 
attorneys qualify as subordinates to the beneficiary, as typically such professionals are not under the full 
direction and control of a client' s manager. Again, the petitioner has not submitted suff icient suppOiting 
evidence to establish whether these professionals are sufficiently engaged to be considered subordinates to 
the beneficiary , or how such employees would relieve the beneficiary from performing the day-to-day duties 
of the petitioner's import and distribution business. Therefore, the petitioner has not submitted sufficient 
evidence to establi sh that the beneficiary will oversee subordinate managers, supervisors, or professionals as 
necessa ry to qualify as a personnel manager . 
Coun se l also generally asserts that the beneficiary may qualify as a function manag er by stating that the 
beneficiary oversees an essential function of the organization. Counsel refers to an unpublished decision in 
which the AAO determined that the beneficiary met the requirements of serving in a managerial and 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
executive capacity for L-1 classification even though he was the sole employee. First, counsel has furnished 
no evidence to establish that the facts of the instant petition are analogous to those in the unpublished 
deci sion. While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding . 
Regardless, the petitioner has not demonstrated that the beneficiary will be employed as a function manager 
as defined by the Act. The term "function manager" applies generally when a beneficiary does not supervise 
or control the work of a subordinate staff but instead is primarily respon sible for managing an "essential 
function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that clearly 
describes the duties to be performed in managing the essential function , i.e. identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential function. See 8 C.F.R. § 204.50)(5) . In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. An employee who "primarily" perform s 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 Boyang, Ltd. v. I.N.S., 67 F.3d 
305 (Table) , 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International , 19 I&N 
Dec . 593, 604 (Comm'r 1988)). In this matter, the petitioner has not provided evidence that the beneficiary 
manages an essential function. Indeed, as noted herein, the evidence presented establishes that it is more 
likely than not that the beneficiary performs non-qualifying operational duties. Also, the petitioner has not 
clearly asse11ed the beneficiary as a function manager or specified the essential function he manages. 
In conclusion, the petitioner has submitted insufficient and contradictory evidence regarding its 
organizational structure, and thus has failed to establish that it will employ the beneficiary in a qualifying 
managerial or executive capacity. For this reason, the appeal must be dismi ssed. 
III. Conclusion: 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act , 8 U.S .C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.