dismissed EB-1C Case: Import/Distribution

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U. S. Citizenship 
and Immigration 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
LIN 08 030 50246 
 MAR 3 1 2009 
IN RE: 
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: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Appeals Office 
www i~s~is anv 
Page 2 
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 California corporation claiming to be engaged in the import and distribution of 
household products and building materials. The petitioner seeks to employ the beneficiary as its 
president and general manager. Accordingly, the petitioner endeavors to classifl 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. 5 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on his conclusion that the petitioner failed to establish that it 
would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief statement expounding her 
arguments in support of the petitioner's eligibility. 
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)(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 
performed by the alien. 
Page 3 
The primary issue in this proceeding calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether 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. $ 1 10 1 (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 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. 5 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 fiom higher level 
executives, the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated October 15, 2007, which 
included the following description of the beneficiary's proposed employment: 
[The beneficiary] has overall accountability for the company and is responsible for 
managing and overseeing the company's entire business operations. He is responsible 
for overall marketing of the products of the company, reviewing and directing 
marketing plans, sales programs, and sales and marketing activities, overall 
management and daily operations of the company, making wide latitude business[-] 
related and daily operational decisions, working closely with the Chief Financial 
Officer to develop financial strategies, business prioritization and resource allocation 
processes, establishing goals and policies of the company, working closely with the 
supervising different departments to set goals, attain optimum performance and 
increase productivity, hiring and firing employees, and making personnel related 
decisions. He receives only general direction from the parent company. . . . 
The petitioner also provided its organizational chart depicting the beneficiary at the top of the 
petitioner's organizational hierarchy with a vice president as the beneficiary's immediate subordinate. 
The vice president is shown as overseeing the chief financial officer (CFO), three sales and 
marketing employees, and two warehouse and inventory employees. It is noted that and 
are both shown as occupying multiple positions within the U.S. entity. The former 
is shown as occupying the positions of vice president and CFO, while the latter is shown as 
occupying a sales and marketing position as well as a warehouselinventory position. With that in 
mind, the organizational chart shows a total of six employees. The organizational chart was 
accompanied by a separate list of employees with a brief job description of all positions below that 
of president. 
On January 3, 2008, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide a list of the beneficiary's proposed day-to-day job duties accompanied by a 
percentage breakdown of the time that would be devoted to each duty. The petitioner also requested 
that the petitioner submit evidence of the most recent payments made to its employees, specifying 
that the pay vouchers must identify the employer, the employee, and their income year-to-date. 
In response, the petitioner provided a list of eleven items. 
 It is noted that while a percentage 
breakdown was provided, a separate percentage breakdown was not assigned to each of the eleven 
items. Rather, items 1-5 were grouped together and were cumulatively assigned 20% of the 
beneficiary's time; items 6-10 were grouped together and cumulatively assigned 70% of the 
beneficiary's time; and item 1 1 was allotted the remaining 10% of the beneficiary's time. The 
following statements were provided as the key components of the beneficiary's proposed position: 
1. 
 The [beneficiary] has overall accountability for [the petitioner] and is responsible 
for directing the overall administration and management of the business operations 
of [the petitioner]. 
2. 
 The [beneficiary] is responsible for establishing policies and goals for the entire 
company, has wide latitude in discretionary decision-making and receives only 
general direction from the [foreign parent entity]. 
Page 5 
3. Responsible for developing and implementing new business and marketing 
strategies to maximize the sales, market share and profitability of the company. 
4. 
 Responsible for developing and implementing efficient organizational structure for 
the company, including hiring and firing of personnel for various departments in the 
company, making personnel[-]related decisions. 
5. 
 Responsible for overseeing and managing daily operations of the company and 
making business and personnel related[-]decisions. Work closely with department 
heads to set goals, attain optimum performance and increase productivity in each 
department. 
6. 
 Work closely with and supervise [the CFO] in developing financial strategies, 
business prioritization and resource allocation processes. 
7. 
 Work closely with and supervise [the CFO] in evaluating economic, social forces 
and government influences to determine effects upon the company's business 
activities, goals and profitability. 
8. Responsible for reviewing, evaluating and directing marketing plans, sales 
programs, and sales and marketing activities, and reviewing results of [the] 
marketing and sales activities/programs to ensure goals are met. 
9. 
 Supervise pricing and inventory policies designed to price competitively and 
achieve desired gross margins. 
10. 
 Conduct regular meetings with staff to ensure effective and open communications. 
11. 
 Actively involved in public relations involving building and maintaining positive 
relationships with trade organizations, associations and the business community. 
The petitioner also provided its Form W-3 for 2007, all the Form W-2s issued in 2007, and 
photocopied paychecks with salary breakdowns for its alleged employees in 2007. 
The director reviewed the petitioner's submissions and determined that the petitioner failed to 
establish that it would employ the beneficiary in a qualifying managerial or executive capacity. 
Accordingly, a denial of the petition was issued on March 14,2008. 
On appeal, counsel defends the petitioner's organizational hierarchy, asserting that the regulations do 
not require employers to have full-time employees to qualify for the immigration benefit sought by 
the petitioner. While counsel's point is consistent with the relevant statutory and regulatory 
provisions, the underlying implication that the petitioner's staffing is irrelevant to the overall 
question of the beneficiary's employment capacity is erroneous. In fact, in reviewing the relevance 
of the number of employees a petitioner has, federal courts have generally agreed that USCIS "may 
properly consider an organization's small size as one factor in assessing whether its operations are 
Page 6 
substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 
469 F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic ofTranskei v. INS, 923 F.2d 175, 
178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Additionally, while counsel is 
correct in pointing out that USCIS must take into account the petitioner's reasonable needs when 
considering staffing size, those needs do not serve to override the petitioner's legal burden of having 
to establish that the beneficiary would primarily perform duties of a qualifying managerial or 
executive nature. The director's discussion of the petitioner's staffing is appropriate and suggests 
that the director had valid concerns regarding the petitioner's ability to relieve the beneficiary from 
having to primarily perform non-qualifying tasks. 
Furthermore, in reviewing the copies of pay checks and the salary breakdowns that were submitted 
in response to the RFE, various anomalies were observed that have led the AAO to question the 
validity and authenticity of the submitted documents. First, none of the checks contain an authorized 
signature of the payor nor is there any indication that any of the checks were actually cashed. 
Second, none of the checks contain a check number, despite the fact that each salary breakdown 
includes the number of the check that was purportedly issued for the corresponding amount. 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). The fact that the record does not explain the anomalies 
discussed herein leads to further doubt as to the availability of a sufficient support staff and, 
therefore, the petitioner's overall capability to relieve the beneficiary from having to primarily 
perform duties of a non-qualifying nature. 
Counsel also contends that the petitioner provided an adequate job description of the beneficiary's 
proposed position, which establishes that the beneficiary would primarily perform duties in a 
qualifying managerial or executive capacity. However, the AAO finds no basis for counsel's 
arguments. Despite the specific instructions in the RFE seeking a precise account of the 
beneficiary's "routine" daily job duties, the petitioner provided a mere variation of the general job 
responsibilities that were initially provided in support of the original petition. For instance, while 
the petitioner stated that the beneficiary is accountable for the direction of the overall administration 
and management of the business operations, no specific tasks were mentioned to explain how the 
beneficiary accomplishes this business objective. The petitioner also stated that the beneficiary is 
responsible for establishing policies and goals and has wide latitude in discretionary decision- 
making. However, this portion of the description is a mere paraphrased version of portions of the 
statutory definition of executive capacity. See section 101(a)(44)(B)(ii) and (iii) of the Act. The 
AAO notes that 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), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
The petitioner also failed to assign specific duties that explain exactly how the beneficiary fulfills his 
responsibilities regarding developing and implementing new business, developing and implementing 
an efficient organizational structure, and managing daily operations through department heads. The 
latter responsibility poses a particular problem because, as previously noted by the director, the 
petitioner's organizational chart identifies only one employee that could be a potential department 
head. There is no evidence that the remaining employees, who allegedly perform saleslmarketing 
and warehouselinventory-related job duties, are supervisory, professional, or managerial employees. 
Despite counsel's claim that the marketing analyst is a professional employee, the record lacks any 
evidence to corroborate this assertion. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). It is noted that 
the mere notation on the organizational chart that the individual filling the position of marketing 
analyst is a university graduate is not sufficient. The record lacks a description of the job duties of 
the marketing analyst and has not been supplemented with supporting documentary evidence 
establishing the employee's educational credentials. 
 Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). As such, any of the beneficiary's job duties as they relate to the management of the 
marketinglsales and inventorylwarehouse employees cannot be deemed as qualifying. 
While the AAO acknowledges that the above adverse findings only pertain to 20% of the 
beneficiary's proposed job duties, the remainder of the job description poses similar obstacles. 
While the petitioner focuses on the beneficiary's supervision of the company's CFO, it has assigned 
no specific job duties or tasks to explain how the beneficiary would fulfill his supervisory role. 
Next, the AAO reiterates that the beneficiary's proposed supervisory duties in overseeing the sales 
and marketing activities as well as the inventory and warehousing activities would be those of a first- 
line supervisor, as the individuals whom the beneficiary would be supervising have not been 
established as being supervisory, professional, or managerial. Furthermore, as the petitioner has not 
clarified the specific tasks to be performed in fulfilling his supervisory responsibility in relation to 
the marketinglsales and inventorylwarehouse employees, the AAO cannot distinguish between the 
responsibilities mentioned in Nos. 8 and 9 versus similar-sounding responsibilities that were 
previously mentioned in No. 5. Lastly, as noted by the director, the petitioner has failed to establish 
how the duties associated with public relations can be deemed as qualifying. It is noted that 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 
(Comrn. 1988). In the present matter, the petitioner has failed to define specific job duties to be 
performed by the beneficiary and has listed responsibilities that are more indicative of a first-line 
supervisor than those of a manager or executive. 
Finally, the petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in 
managerial duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 
101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner 
chooses to represent the beneficiary as both an executive and a manager, it must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the 
statutory definition for manager. Regardless of which employment capacity the petitioner attributes 
to the beneficiary, the petitioner must clearly describe the duties to be performed by the beneficiary, 
as the actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Lta! v. 
Sava, 724 F. Supp. at 1108. 
Page 8 
Thus, in light of the beneficiary's deficient job description and the dubious documentation submitted 
to corroborate the petitioner's organizational hierarchy, the AAO is unable to determine what the 
beneficiary's proposed job duties would be and how the petitioner plans to relieve the beneficiary 
from having to primarily perform tasks of a non-qualifying nature. On the basis of these findings, 
the AAO affirms the director's decision concluding that the petitioner has failed to establish that it 
would employ the beneficiary in a qualifying managerial or executive capacity. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. 
First, 8 C.F.R. 5 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was 
employed abroad in a qualifying managerial or executive position for at least one out of the three 
years prior to his entry to the United States as a nonirnmigrant to work for the same employer. In the 
instant matter, the petitioner's description of the beneficiary's employment abroad consists primarily 
of vague job responsibilities without any indication as to the specific job duties that were performed 
on a daily basis. As indicated in the earlier discussion of the beneficiary's proposed job duties, 
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. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103. As the petitioner failed to submit 
the necessary and highly relevant information establishing what job duties the beneficiary performed 
for the foreign entity, the AAO cannot conclude that he was employed abroad in a qualifying 
managerial or executive capacity. 
Second, 8 C.F.R. fj 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing 
business for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.50)(2) 
states that doing business means "the regular, systematic, and continuous provision of goods and/or 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or 
office." Although the petitioner provided a number of its tax documents and its inventory valuation 
report, none of these documents establish the frequency of the petitioner's importing and/or 
distribution transactions. The record lacks sufficient evidence documenting that the petitioner was 
conducting business activities on a "regular, systematic, and continuous" basis. See id. 
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), afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.