dismissed EB-1C Case: Import/Export

identifying data deleted to 
Pre vent clearly unwarranted invasion of personal privac) 
PUBLIC COPY 
DATE: 
IN RE: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Setvices 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC B529-2090 
. 
U.S. Citizenship 
and Immigration 
OFFICE: TEXAS SERVICE CENTER 
 FILE: - 
APR 0 ? 2C11 
 SRC 08 124 50808 
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: 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. r) 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-2908, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
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 a Florida corporation that seeks to employ the beneficiary as its manager. 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. 5 1153(b)(l)(C), as a multinational 
executive or manager. The director denied the petition based on three independent grounds of ineligibility: 
I) the petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity; 2) the petitioner failed to establish that the beneficiary would be employed in the United 
States in a managerial or executive capacity; and 3) the petitioner failed to establish that it has the ability to 
pay the beneficiary's proffered wage. 
On appeal, the petitioner disputes the director's couclusions and submits a brief addressing each of the 
grounds that served as a basis for denial. 
Section 203(b) of the Act states in pertinent part: 
(I) 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. 
The first two issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
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. 5 11 01 (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 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 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. 
In support of the Form 1-140, the petitioner submitted a letter dated February 25,2008 in which the petitioner 
stated that in his proposed position the beneficiary would establish company operations, organize and oversee 
administrative matters, address human resources concerns, including hiring, training, and firing employees, 
negotiate contracts for services, purchases, and sales, and he would implement policies and adopt strategies to 
improve business and increase profits. The petitioner also provided a brief list of responsibilities 
accompanied by percentage breakdowns. As the director included this portion of the job description in the 
denial, the AAO need not restate this information. 
Page 4 
The petitioner provided a separate document, also dated February 25, 2008, in which the beneficiary's 
proposed position was said to include authority over the budget and capital expenditures, and negotiating 
freight fees. The beneficiary's employment abroad was described as managerial involving development of a 
system for importing and exporting the foreign entity's products, maintaining contact with Brazilian suppliers, 
and managing and directing the business. 
On October 28, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide supplemental job descriptions of the beneficiary's foreign and proposed employment. Specifically, 
the petitioner was asked list all the specific job duties that the foreign position entailed and the duties that the 
proposed position would entail as well as the percentage of time that was and would be attributed to each of 
the listed tasks. The petitioner was asked to state the number of subordinate managers or supervisors that 
reportcd and would report to the beneficiary in his past and proposed positions including each subordinate's 
job title, job duties, and education level. Additionally, the petitioner was asked to provide each entity's 
organizational chart depicting the beneficiary's position and the given entity's hierarchical structure. 
The petitioner's response included a letter dated November 25, 2008 in which the petitioner repeated the 
information provided earlier in support of the petition. With regard to the proposed employment, the 
petitioner reiterated that the beneficiary would maintain full authority over personnel matters, company 
policies, and strategies, all of which would be geared towards meeting the petitioner's profit goals. Once 
again, the petitioner stated that the beneficiary would be charged with negotiating contracts concerning prices 
for services, purchases, and sales, as well as bank insurance and credit terms. The beneficiary was described 
as functioning at the senior level of the organization. In discussing the idea of an organizational chart, the 
petitioner generally noted that large corporations may have many management levels, whereas in a smaller 
organization "all employees might have to take on a wider range of duties . . . because there are fewer 
employees." The petitioner did not identify itself as either a large or a small corporation and thus did not go 
on to discuss its organizational hierarchy or the beneficiary's placement therein. 
Similarly, with regard to the beneficiary's employment abroad, the petitioner restated that the beneficiary 
assumed a managerial position and went on to repeat that the beneficiary has knowledge and experience in the 
field of importing and exporting auto parts, which entailed maintaining contacts with suppliers in Brazil. 
Although the petitioner stated that the foreign entity has over twenty employees, the organizational chart that 
was submitted previously to establish the hierarchical structure of the foreign entity shows that the foreign 
employer was comprised of nine employees at the time of the beneficiary's employment abroad. The chart 
also indicates that the beneficiary had three subordinates, including an administrative assistant, a driver, and 
an inventory coordinator. Thus, it would appear that the twenty plus employees that the petitioner referenced 
in its response to the RFE is in reference to the foreign entity's current organizational hierarchy and not the 
hierarchy that was in place during the beneficiary's employment abroad. 
Lastly, the petitioner's letter included a subsection with the heading "Level of Authority" in which the 
petitioner summarized the role of managers and executives as one involving organization, direction, and 
control of the organization's major functions by working through other employees to achieve business 
objectives. With regard to the beneficiary in particular, the petitioner added that he "not only [has] the 
requisite authority but the majority of his previous experience relates to the company's operational policy and 
management canying out its operations and policies (such as supervising lower level employees performing 
sales work, operating machines and supervising the lower level staff of four specifically selected for their 
positions in this field of import [and] export." [sic] The petitioner did not specify whether this statement was 
meant to be applied to the beneficia~y's foreign or proposed employment, nor did the petitioner explain 
whether supervising lower level employees, performing sales work, and operating machines were tasks that 
the beneficiary would perform. If these tasks were not meant to be attributed to the beneficiary's foreign or 
proposed position, the petitioner did not explain who did or would actually assume these tasks. The petitioner 
also failed to identify the positions of "the lower level staff of four" and did not indicate whether these 
employees work for the foreign or for the U.S. entity. 
The petitioner did not provide its own organizational chart, nor did the petitioner list the beneficiary's job 
duties with time constraints to establish how much time the beneficiary spent on the duties he performed 
abroad or the job duties he would perform in his proposed position with the U.S. entity. It is noted that failure 
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). 
In a decision dated June 25, 2009, the director denied the petition noting that the information provided by the 
petitioner with regard to the beneficiary's foreign and proposed employment was vague and failed to establish 
that the beneficiary was employed abroad and that he would be employed in the United States in a qualifying 
managerial or executive capacity. The director noted that the foreign entity's organizational chart, which 
showed three employees under the beneficiary's supervision, provided no information as to the duties or 
educational levels of the three subordinates. With regard to the beneficiary's proposed employment, the 
director questioned the petitioner's ability to relieve the beneficiary from having to primarily perform non- 
qualifying tasks given that the petitioner's staff was comprised of only three employees. 
On appeal, the petitioner provided two separate statements addressing the director's adverse decision. In the 
first statement, which was dated August 5,2009, the petitioner summarized the issues in contention, including 
the issue of a qualifying relationship. The AAO notes that a thorough review of the director's decision shows 
that the petitioner's summary of issues was incorrect, as the director did not make any adverse findings 
regarding the petitioner's qualifying relationship with the beneficiary's foreign employer. Although the RFE 
instructed the petitioner to provide additional information addressing this issue, there is no indication that the 
petitioner's response led to any adverse findings. 
The initial appeal statement did not address the issue of the beneficiary's proposed employment with the U.S. 
entity. The petitioner did, however, address the beneficiary's employment abroad, contending that the 30-day 
extension period allowed by the Form 1-2908 for the submission of additional information was insufficient to 
provide foreign documents, which would require English language translations. The AAO notes, however, 
that the information regarding the beneficiary's employment with the foreign entity, including the 
beneficiary's job description and infom~ation regarding the beneficiary's support staff during his employment 
abroad, was originally requested in the RFE, which was issued on October 28, 2008. Having been informed 
of the requested evidence approximately eight months prior to the denial of the petition, the AAO finds that 
the petitioner had ample time in which to comply with the request and possibly to preclude adverse findings 
with regard to the beneficiary's employment abroad. The petitioner did not provide the requested evidence 
either in response to the RFE or on appeal, despite the significant lag time between the RFE and the denial. 
In light of this timeline, the AAO finds that the time constraints imposed by U.S. Citizenship and Immigration 
Services (USCIS) do not justify the petitioner's failure to submit requested information that was required for 
the purpose of determining the petitioner's eligibility. 
On December 19, 2009, the AAO received the petitioner's second appeal brief, dated December 6, 2009, in 
which the petitioner addressed the beneficiary's foreign and proposed employment. The petitioner pointed out 
that the beneficiary is fluent in three languages and performed exceptionally during his employment with the 
foreign entity. 
With regard to the employment abroad, the petitioner stated that the beneficiary performed in a managerial 
capacity and claimed that the beneficiary's duties abroad included "supervision of function managers in 
international shipments, inventory preparation, accuracy, language, responsibility, regulations equipment, 
inspections, weighing procedures, safety, and quality control, and authorized to represent the company as 
"speaker" in events with media, if it becomes necessary." Aside from the fact that the petitioner failed to 
specifically define the beneficiary's role with respect to these functions, the petitioner's current claim does not 
comport with the foreign entity's organizational chart, which the petitioner previously provided. More 
specifically, the foreign entity's organizational chart shows an administrative assistant, a driver, and an 
inventory coordinator as the beneficiary's subordinates during his employment abroad. Based on these 
individuals' job titles, it is unclear who was carrying out the international shipments, regulating the 
equipment, inspecting merchandise, and carrying out procedures for weighing, safety, and quality control. 
Furthermore, the petitioner's statements were confusing with no indication provided to establish what specific 
tasks were associated with "accuracy, language, [and] responsibility." The AAO also finds that further 
clarification is needed to establish what is meant by "supervision of function managers," as none of the 
beneficiary's subordinates appears to have served in a managerial position. 
Additionally, the petitioner stated that the beneficiary's employment abroad involved developing and 
managing sales projects; developing a business plan to target identified sales targets; assuming a leadership 
role in revenue building activities with the sales team; managing relationships between the sales team and 
their respective customers; determining sales goals; and managing the preparation of proposals and contracts 
for services as needed with the sales team. This broad list of the beneficiary's responsibilities contradicts the 
foreign entity's organizational chart, which identified only one sales-related employee--a sales manager-and 
did not identify a sales staff to cany out the company's sales activities. Although the petitioner claimed that 
the foreign entity's organizational chart "shows" a description of the job duties of the beneficiary's 
subordinates and supervisors, the record does not support this claim. As indicated earlier, only employee 
names and job titles were provided in the foreign entity's organizational chart, which neither provides 
information regarding employee job duties nor shows that the beneficiary had a superior to whom he reported. 
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 1&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
With regard to the beneficiary's proposed employment with the U.S. entity, the petitioner restated the 
previously provided job descriptions despite the fact that the director expressly deemed such information to 
be insufficient and generally lacking the requisite degree of detail about the beneficiary's specific daily job 
duties. The petitioner did not supplement the deficient job descriptions with additional information or clarify 
how its three-employee organization would support the employment of the beneficiary in a qualifying 
managerial or executive capacity. In other words, the AAO is confused as to how the petitioner's limited 
staffing composition was sufficient to relieve the beneficiary from having to primarily cany out the 
petitioner's daily operational tasks at the time of filing. Aside from repeatedly disputing the director's 
findings and reassuring the AAO that the beneficiary's proposed employment would consist of duties at a 
managerial level, as the petitioner had previously done in the response to the RFE, no new information was 
provided to fully describe the heneficiary's actual daily tasks in his proposed position with the U.S. entity or 
to explain how the beneficiary's limited support staff would have enabled the heneficiary to primarily perform 
tasks in a qualifying managerial or executive capacity at the time of filing the petition. 
When examining the executive or managerial capacity of the heneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 204.5(,)(5). Reciting the heneficiary's vague job 
responsibilities or broadly-cast husiness objectives is not sufficient. The regulations require a detailed 
description of the heneficiary's daily job duties and published case law reaftirms the role of a detailed 
description of job duties, holding that the actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). The AAO will then consider the information gained from the description of the proposed 
employment in light of the petitioner's organizational hierarchy and the heneficiary's position therein in order 
to gauge the petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily 
operational tasks. 
As discussed above, neither the description of the heneficiary's employment abroad nor the description of the 
proposed employment provided sufficient information about the heneficiary's actual daily tasks to enable the 
AAO to gain a meaningful understanding of the heneficiary's employment capacity in either position. The 
record also lacks adequate information about the foreign entity's staffing to allow for a favorable conclusion. 
As indicated above, various unexplained anomalies come to light when the foreign entity's organizational 
chart and the beneficiary's job description are considered together. The AAO has no understanding of who 
within the foreign entity's organization was available to sell the products, nor does the organizational chart 
readily estahlish that the beneficiary's subordinates were managerial or professional employees. 
With regard to the U.S. entity's organization, the petitioner failed to provide an organizational chart or to 
explain how the petitioner's limited support staff would have been sufficient to relieve the beneficiary from 
having to primarily perform its daily operational tasks. While the AAO acknowledges that no heneficiary is 
required to allocate 100% of his time to managerial- or executive-level tasks, the petitioner must estahlish that 
the non-qualifying tasks the heneficiary would perform are only incidental to hislher 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 l&N Dec. 593, 604 (Comm. 1988). 
In the present matter, the record as presently constituted is not persuasive in demonstrating that the 
heneficiary has been or will he employed in a primarily managerial or executive capacity. The record does 
not estahlish that a majority of the beneficiary's duties have or will consist primarily of tasks within a 
qualifying managerial or executive capacity. In fact, particularly with regard to the beneficiary's proposed 
position, the record indicates that a preponderance of the beneficiary's duties will most likely he directly 
providing the services of the husiness. The petitioner has not demonstrated that the beneficiary has been 
primarily supervising or would primarily supervise a subordinate staff of professional, managerial, or 
supervisory personnel or that the heneficiary was and would he relieved from performing primarily 
nonqualifying duties. Based on the evidcnce furnished, the AAO cannot conclude that the beneficiary has 
been or will be employed primarily in a qualifying managerial or executive capacity. Based on these two 
independent findings, the instant petition may not be approved. 
Page 8 
The remaining issue addressed in the director's decision is whether the petitioner established that it had the 
ability to pay the beneficialy's wage as of March 7, 2008, the date the Form 1-140 was filed. 
8 C.F.R. 5 204.5(g)(2) states the following, in pertinent part: 
Any petition filed by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States employer has 
the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time 
the priority date is established and continuing until the beneficiary obtains lawful permanent 
residence. Evidence of this ability shall be either in the form of copies of annual reports, federal 
tax returns. or audited financial statements. 
In determining the petitioner's ability to pay the proffered wage, USClS will first examine whether the petitioner 
employed the beneficialy at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this 
evidence will be consideredprima,facie proof of the petitioner's ability to pay the beneficialy's salary. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Rrsraurant 
Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court 
held the Immigration and Naturalization Service (now USCIS) had properly relied on the petitioner's net 
income figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross 
income. 623 F. Supp. at 1084. The court specifically rejected the argument that the Service should have 
considered income before expenses were paid rather than net income. Finally, there is no precedent that 
would allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Fen:: 
Chang v. Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
In the present matter, the petitioner's 2007 wage statements and the petitioner's quarterly and yearly tax 
returns for 2006 and 2007 clearly established that the petitioner employed the beneficiary prior to the date the 
Form 1-140 was filed. However, none of the submitted documentation established that the beneficiary was 
paid a salary that was equal to or greater than the proffered wage of approximately $40,000 per year. 
Although the petitioner has provided a copy of its 2008 corporate tax return in which the Schedule E portion of 
the return indicates that the beneficiary was compensated $40,000 as an officer of the company, the document 
was neither dated nor signed either by the preparer of the document or by an officer representing the petitioning 
entity; nor was the document certified to establish that the information contained therein was a true representation 
of the petitioner's financial status at the time the Form 1-140 was filed. As such, the probative value of this 
unsigned document is limited at best and does not establish that the petitioner paid the beneficiary the proffered 
wage at the time of filing. As the petitioner has not provided sufficient documentation of its ability to pay the 
beneficialy's proffered wage, the petition must be denied on the basis of this additional ground. 
Page 9 
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.