dismissed EB-1C Case: Import/Export

(b)(6)
DATE: JUL 2 9 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 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: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions 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 Appeal 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.go,,/forms 
for the latest information on fee, filing location, and other requirements. See also 8 C.P.R. § 103.5. Do 
not file a motion directly with the AAO. 
Thank you, 
l~ f 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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 company engaged in import/export of goods, and it seeks to employ the beneficiary 
as its President. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary's proposed 
employment with the U.S. entity would be in a qualifying managerial or executive capacity. 
On appeal, 
the petitioner disputes the director's findings and provides an appellate brief laying out the grounds 
for challenging the denial. 
I. THELAW 
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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and 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 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 
that 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. See 8 C.P.R. § 204.5U)(5). 
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II. FACTS AND PROCEDURAL HISTORY 
The sole issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(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) 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 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 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 
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(iv) receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The petitioner indicated on the Form I-140, Immigrant Petition for Alien Worker, that it is engaged in the 
import and export of goods with five employees and a gross annual income of $289,501. The petitioner states 
that it is a wholly owned subsidiary of The petitioner states that it wishes 
to employ the beneficiary as its President. In a letter accompanying the Form I -140, the petitioner stated that 
the beneficiary would be engaged in the following duties: 
Indirect supervision of our company's daily activities; 
Confer with board members to discuss issues, coordinate activities, and resolve problems; 
Analyzing market, location and operation to evaluate performance of our company and to 
determine target areas of potential business expansion; 
Establish administrative procedures, marketing plans and strategies, polices, and goals to 
increase U.S. company's profitability; 
Final approval on advertisement contracts/agreements with suppliers; 
Analyze the company's sales and financial reports and budgets; 
Appointment department managers and delegate responsibilities to them; 
Final decision on hiring and firing employees. 
The petitioner also provided an organizational chart showing the beneficiary as CEO. Reporting to the 
beneficiary was a General Manager. Reporting to the General Manager are an Import/Export position and a 
General Assistant. Reporting to the Import/Export position is the Export assistant. The petitioner has a 
number of other contractor positions listed on the chart, including an insurance broker, translator, logistics, 
international logistics, bookkeeping, and attorney position. 
In support of the petition, the petitioner provided copies of its 2011 IRS Form 941, Employer's Quarterly 
Federal Tax Returns and Florida Department of Revenue quarterly wage reports for 2011. The Florida 
reports showed five employees on payroll for total wages paid of $19,644 for the last quarter of 2011. The 
quarterly wage reports listed the names of the five employees identified on the organizational chatt. Based on 
their reported quarterly wages of $1,957 and $1,733, respectively, the import/export employee and export 
assistant appear to be part-time employees. 
The petitioner provided position descriptions for each of the staff members listed on the organizational chart. 
The General Manager is responsible for the following: general supervisor; client relationships; negotiation, 
offer, and acceptance of contracts; review documents and procedures; review forms of payment; create 
marketing strategies. The Import/Export position is responsible for duties classification, determining product 
prices, and analysis of regulations and procedures. The Import/Export assistant searches distributors, gets 
price quotes, sets payment terms, and checks availability of stock. The general assistant schedules 
appointments, prepares proforma invoices, prepares export packing lists, prepares commercial invoices, and 
obtains export/import licenses. 
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The director issued a request for evidence ("RFE''). The director requested that the petitioner provide, inter 
alia , evidence that the beneficiary will act in a qualifying capacity as a multinational manager. Specifically, the 
director requested the following: (1) position title and specific daily duties; (2) percentage of time spent on each 
duty; (3) job titles, duties, and educational levels for each employee as well as whether the employee works full 
or part-time; (4) Form W-2s, Wage and Tax Statement s, for the relevant years for each employee , and (5) IRS 
Form 1099's and copies of contracts for all contracted employees. 
The petitioner submitted a Jetter in response stating that the beneficiary will direct overall management of the 
company and will supervise and control the work of other supervisory employees, including a full time 
manager. The petitioner provided a breakdown of the beneficiary's duties on an hourly basis as follows: 
planning, developing and establishing policies and objectives of the business including the final company 
budget, securing loans, and dealing with attorney and accountants (18 hours/week); conferring with board 
members to discuss issues (15 hours/week) ; analyzing operations to evaluate company performance and 
determine cost reduction (12 hours/week); directing , planning, and implementing policies and objectives 
including marketing strategies (9 hours/week); and, appointing department heads or managers and assigning 
responsibilities to them (6 hours/week). The petitioner further provided a percentage breakdown of the 
beneficiary's duties as follows: 
DUTIES % 
Daily morning- General Manager meeting 14% 
Meeting in order to receive reports on the most current status of the 
operation and/or administrative issues 
Read and review reports submitted to staff to recommend approval 12% 
or to suggest changes 
Analyze operations to evaluate performance of the company, or its 10% 
staff in meeting objectives 
Determine areas of potential cost reduction, program improvement , 12% 
or policy change 
Overlooking the market, internet and email 10% 
Set services and marketing goals and 
strategie s 10% 
Weekly Board meeting with directors from the foreign company 8% 
Analysis of financial documentation in order to stay informed about 12% 
the company's financial status 
Daily afternoon- General manager meeting 9% 
Meeting to determine changes, approvals, or final decision m 
contracts and/or agreements. 
Unforeseeable Issues. 3% 
The petitioner provided the requested information regarding the beneficiary's subordinates and contractor s. The 
petitioner stated that the General Manager, Import and Export Assistant, Inventory employee, and General 
Assistant were full-time positions. Comparing this information to the petitioner's initial evidence, the 
(b)(6)
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Page 6 
individual previously identified as holding the supervisory import/export position was identified in response to 
the RFE as the import and export assistant, and the individual previously identified as the export assistant is 
identified in the subsequent employee list as "inventory." The petitioner provided position descriptions for the 
contractor positions of International Cargo Sales; transportation; translation; brokering; tax services; and legal 
services . The petitioner provided IRS Form 1099s and invoices for 2011 for these same positions. None of the 
contractors were paid more than $6,000. The petitioner also provided the requested IRS Forms W-2 for 2011 
and IRS Form 941, Employer's Quarterly Federal Tax Return, for the quarter of filing, showing five employees 
paid. 
The director ultimately denied the petition, concluding that the petitioner failed to establish that the beneficiary 
would be employed in a qualifying managerial or executive position. In denying the petition, the director found 
that the petitioner lacks the organizational complexity to warrant the beneficiary's employment in a primarily 
executive or managerial capacity. Furthermore, the director stated that the description of the beneficiary's 
duties was vague and did not support a finding that the duties would be managerial in nature . 
On appeal, counsel asserts that evidence of record is sufficient to establish that the beneficiary will be acting in 
a primarily managerial or executive capacity. Specifically, counsel states that the evidence supports a finding 
that the beneficiary will be acting in a primarily managerial capacity. Counsel stated that the beneficiary's 
duties are managerial and essential to the operations of the business. Counsel further asserts that the director 
failed to take into consideration that many of the company personnel are contracted. Finally, counsel claims 
that the beneficiary manages a subordinate managerial employee. 
III. DISCUSSION 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be 
employed in a managerial or executive capacity. 
In examining the executive or managerial capacity of the beneficiary , USCIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. § 204.5U)(5). Published case law clearly supports the pivotal role of 
a clearly defined 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), a.ffd, 905 F.2d 41 (2d. Cir. 1990); see 
also 8 C.F.R. § 204.5(j)(5). That being said, however, USCIS 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. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
(b)(6) NON-PRECEDENT DECISION 
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majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 
WL 144470 (9th Cir. July 30, 1991). 
The beneficiary's job description s submitted in support of the initial petition was overly general and vague. For 
instance, the petitioner stated that the beneficiary will confer with board members to discuss issues, establish 
administrative procedures, indirectly supervise daily activities, and appointment department managers and 
delegate responsibility to them. In response to the RFE the petitioner stated that the beneficiary reads and 
reviews reports; determines areas of potential cost reduction; sets services and marketing goals and strategies; 
analyzes financial documents; and analyzes operations to evaluate the performance of the company . These 
duties provided little or no insight into what the beneficiary primarily does on a day-to-day basis or how he 
carries out his objectives as President. Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the 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., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Thus , while several of the duties broadly described by the petitioner would generally fall under the definitions 
of managerial or executive capacity, the lack of specificity found in the beneficiary's job description, raises 
questions as to the beneficiary's actual proposed responsibilities. Overall, the position descriptions alone are 
insufficient to establish that the beneficiary's duties would be primarily in a managerial or executive capacity. 
Furthermore, it is not clear who will be performing several of the non-qualifying duties associated with the 
business. The petitioner claims to be an import/export organization, however, does not appear to have any 
employees , or independent contractors, responsible for the sales, marketing , and purchasing of the products to 
be imported and exported, or the sales and marketing of the company's services. The record includes a job 
description for the beneficiary's position from 2010, submitted in support of a prior Form I-140, which 
indicates that she would be responsible for purchasing of inventory, vendor relations and customer relations. 
Absent evidence relating to who would perform these non-managerial duties within the company's current 
organizational structure, the petitioner has not established that the beneficiary's subordinates relieve her from 
performing non-qualifying duties and has not supported its claim that 90 percent of her time will be allocated to 
managerial or executive tasks. 
Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See§ 101(a)(44)(A)(ii) of the Act. 
The petitioner ' s organization does not clearly support both the beneficiary as President and the position of 
General Manager. A review of the position descriptions reveals that the two positions have several overlapping 
duties. Specifically, both positions appear to be responsible for providing high level administrative support; 
reviewing financial statements, sales, activity reports, and other data to measure productivity; and training and 
supervising lower level staff. When examining the managerial or executive capacity of a beneficiary , 
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Citizenship and Immigration Services (USCIS) reviews the totality of the record, including descriptions of a 
beneficiary's duties and his or her subordinate employees, the nature of the petitioner's business, the 
employment and remuneration of employees, and any other facts contributing to a complete understanding of a 
beneficiary's actual role in a business. The evidence must substantiate that the duties of the beneficiary and his 
or her subordinate s correspond to their placement in an organization's structural hierarchy; artificial tiers of 
subordinate employees and inflated job titles are not probative and will not establish that an organization is 
sufficiently complex to support an executive or manager position. An individual whose primary duties are 
those of a first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of 
his or her supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the 
Act. 
The petitioner failed to substantiate the number of employees and independent contractor s as illustrated on the 
petitioner's organizational chatt. Of the employees on the chart, the petitioner submitted IRS Form W-2 for 
2011 for four employees. The Florida quarterly wage reports for the same period showed five employees on 
payroll for total wages paid of $19,644 for the last quarter of 2011. The Florida reports listed the names of the 
five employees . Based on the quarterly pay listed for each employee , two of the employees, the 
"Import/Export" and "Export assistant" are part-time employees. Therefore, the petitioner appears to employ 
only one full-time position subordinate to the General Manager, that of the General Assistant. In addition, and 
as noted above, the petitioner changed the job titles of two employees when responding to the RFE without 
providing any accompanying explanation. 
Additionally, the petitioner has provided minimal evidence of contractors engaged by the organization as listed 
on the organizational chart. Specifically, the petitioner does not have a contractual agreement with the 
insurance broker, translator, and logistics organizations. Therefore, it is not clear to what extent they are under 
the beneficiary's or General Manager's supervision. Furthermore, the petitioner appears to have paid these 
independent contractors a maximum of $6,000 each, therefore it is not clear to what extent they are able to 
relieve the beneficiary of e non-qualifying duties, and such contractors do not appear to be involved in the daily 
operations of the company. 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)). 
Furthermore, in response to the RFE, the petitioner provided the requested educational levels of its employees . 
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 
101(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, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academies , or seminaries." The term "profession" 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 prerequisite to entry into the particular field of endeavor. 
Matt er of Sea , 19 I&N Dec. 817 (Comm'r 1988); Matter of Ling, 13 I&N Dec . 35 (R.C . 1968); Matter of Shin, 
11 I&N Dec. 686 (D.D. 1966). 
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The AAO must focus on the level of education required by the position , rather than the degree held by 
subordinate employee . The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not established that a bachelor's degree is actually 
necessary, for example, to perform the duties of the general manager position, the only employee claimed to 
have a bachelor's degree . 
The beneficiary's proposed position is president of an import/export business with two part-time and two full­
time employees other than the beneficiary. The petitioner has not demonstrated that the beneficiary, as a 
personnel manager, will be primarily supervising a subordinate staff of professional, managerial, or supervisory 
personnel. See section 10l(a)(44)(A)(ii) of the Act. Furthermore, the petitioner has not established that it will 
employ a staff that will relieve the beneficiary from performing non-qualifying duties so that the beneficiary 
may primarily engage in managerial duties. Further, regardless of the beneficiary's position title, the record is 
not persuasive that the beneficiary will function at a senior level within an organizational hierarchy. 
As required by section 101(a)(44)(C) of the Act, 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. 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) . 
As discussed, several of the beneficiary's stated duties overlap with those of her direct subordinate. Two of the 
company's five employees appear to be employed on a part-time basis, and the petitioner has not established 
who is responsible for operational tasks such as purchasing, sales and marketing. Upon review of the totality of 
the evidence, the record does not establish how the beneficiary would be relieved from performing non­
qualifying duties. The reasonable needs of the petitioner will not supersede the requirement that the beneficiary 
be "primarily" employed in a managerial or executive capacity as required by the statute. See sections 
101(a)(44)(A) and (B) of the Act, 8 U.S.C . § 1101(a)(44). The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this essential 
element of eligibility . 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity and the instant petition cannot 
be approved. 
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IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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.