dismissed EB-1C Case: Import/Export

identifying data deleted to 
orevent dearty unwarranted 
A 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: - Office: TEXAS SERVICE CENTER Date: A$R 0 5 2m7 
SRC 06 00 1 5 1799 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
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. 
,yF-L+J I&. e~P. Wiemann, 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 Texas corporation operating as an importer of handicrafts, leather goods, and garments and 
as an exporter of textile testing materials. It seeks to employ the beneficiary as its president and chief 
executive officer. 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@)(1)(C), as a multinational executive or manager. The director concluded that the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity and denied the petition. 
On appeal, the petitioner disputes the director's findings and submits a brief in support his arguments. 
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. 
The primary issue in this proceeding is whether the petitioner would employ the beneficiary in a managerial 
or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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 petition, the petitioner submitted a letter dated September 29, 2005 in which the following 
responsibilities were used to describe the beneficiary's proposed position: 
Direct and coordinate marketing and business development activities of the organization[.] 
Formulate and administer company policies[.] 
In consultation with the management and the parent company in India, develop long-range 
goals and objectives of the company[.] 
Be responsible for corporate planning, general admmistration, marketing-sales and 
purchasing activities for the subsidiary[.] 
Page 4 
Oversee new investment activities, including reviewing proposals and exploring other retail 
and convenience store businesses[.] 
Direct and coordinate activities of employees in the operations, purchasing and marketing 
departments for which responsibility is delegated to further attainment of goals and 
objectives[.] 
. 
 Oversee the financial and accounting activities of the organization, including budgeting, tax 
and regulatory matters[.] 
Review and analyze activities, costs, operations, and forecast data to determine progress 
toward stated goals and objectives[.] 
I 
Discuss with management and employees to review achievements and discuss required 
changes in goals or objectives of the company[.] 
The petitioner also provided a copy of its organizational chart and payroll records. Nevertheless, the director 
determined that additional infomation was needed prior to making a final determination regarding the 
petitioner's eligibility. 
Accordingly, on October 29,2005, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide, in part, a list of the beneficiary's proposed day-to-day duties accompanied by a 
percentage of time to be spent performing each duty listed. The petitioner was also asked to provide brief job 
descriptions of the beneficiary's subordinates, if any. If no subordinates are to be managed, the petitioner was 
asked to discuss the essential function she would manage within the petitioner's organization. 
In response, the petitioner resubmitted its organizational chart illustrating three levels of personnel with the 
beneficiary listed at the top level. The four subordinate positions listed under the beneficiary all carry 
managerial titles. Of those four managers, three are shown with subordinates of their own. It is noted that 
while the customer service manager carries a managerial title, she is not shown as having any subordinates. 
According to the submitted payroll records and W-2 statements, the customer service manager appears to be 
employed on a part-time basis, worlung on average three hours or less per day. Similarly, the. subordinates of 
each of the three managerial employees also appear to be part-time employees worlung 17 hours or less per 
week. With regard to the requested list of job duties, the petitioner provided the following: 
Contract negotiations with clients. (Time spent lo%)[.] 
Direct and coordinate marketing and business development activities of the organization by 
overseeing the maintenance of the company [wlebsite, e-commerce business, marketing 
research, advertising and promotions. (Time spent 20%)[.] 
Formulate and administer-company policies by establishing the high-level goals[.] (Time 
spent 5%) [.I 
Page 5 
In consultation with the management and the parent company in India, develop long-range 
goals and objectives of the company, particularly that of [qluality [c]ontrol, budget 
forecasting and work flow management[.] (Time spent 5%)[.] 
Be responsible for corporate planning, general administration, marketing-sales and 
purchasing activities for the subsidiary[.] (Time spent 5%)[.] 
Oversee new investment activities, including reviewing proposals and exploring other retail 
and convenience store businesses, including the [slupervising and controlling of the work 
of other supervisory, professional and managerial employees[.] (Time spent 35%)[.] 
Direct and coordinate activities of employees in the operations, purchasing and marketing 
departments for which responsibility is delegated to further attainment of goals and 
objectives[.] (Time spent 5%). 
Review and analyze activities, costs, operations, and forecast data to determine progress 
toward stated goals and objectives[.] (Time spent 5%). 
Discuss with management and employees to review achievements and discuss required 
changes in goals or objectives of the company[.] (Time spent 5%). 
In addition, the petitioner provided information about the remainder of its staff, including job titles, brief job 
descriptions, and their respective levels of education. Additional payroll records and employee W-2 
statements were also provided. 
On June 13, 2006, the director denied the petition concluding that the petitioner failed to establish that it 
would employ the beneficiary in a qualifying managerial oi executive capacity. The director referred to the 
description of duties provided in response to the WE, noting that her proposed duties include "business 
marketing, staff recruitment and supervision, and other duties comprising the daily productive tasks of the 
company." While the AAO concurs with the director's conclusion regarding the petitioner's eligibility, her 
comments regarding the beneficiary's job duties are inaccurate and are not reflected in the record. More 
' 
specifically, the above list repeats, verbatim, the entire list of the beneficiary's proposed duties and 
responsibilities none of which state that the beneficiary would perform the petitioner's marketing tasks. While 
such a conclusion may be reached by inference based-on. an assessment of the petitioner's personnel shucture 
and its failure to explicitly state who performs its .marketing, the petitioner made no statements affirmatively 
stating that the beneficiary would perform the marketing-related tasks. 
The director also suggested that staff recruitment and. staff supervision are non-qualifying tasks. . Such 
reasoning is flawed, as it does not take into account all relevant factors. Namely, the petitioner's list of tasks 
. 
 and responsibilities does not allot a specific amount of time to staff recruitment. Rather, in illustrating the 
beneficiah's level of diicretion, the petitioner states that the beneficiary has hiring and firing authority. 
Concluding that the beneficiary spends a significant amount of time on staff recruitment based on the 
information provided by the petitioner is erroneous. Furthermore, the director's conclusion that staff 
. , supervision is a non-qualifying task is not accompanied by the necessary analysis of whether tlie beneficiary's 
subordinate, staff is comprised of managerial, supervisory, or professional employees. Staff supervision in 
itself is not a non-qualifying task. Section 101(a)(44)(A)(ii) of the Act specifically provides for managerial 
Page 6 
capacity employees who supervise the work of "other supervisory, professional, or managerial employees." 
Thus, only by determining that the beneficiary supervises non-supervisory, non-professional, or non- 
manageriel employees would the director be justified in concluding that the beneficiary's supervisory duties 
are non-qualifying. In the present matter, the record suggests that three out of four of the beneficiary's 
subordinates are managerial employees. Thus, an adverse conclusion cannot be based on the beneficiary's 
supervisory duties. 
Rather, in examining the executive or managerial capacity of the beneficiary, Citizenship and Immigration 
Services (CIS) will look first to the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 
9 204.5(j)(5). In the present matter, the breakdown provided by the petitioner in response to the RFE is 
primarily comprised of broad job responsibilities which are general and do not convey an understanding of 
the beneficiary's daily tasks. 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). 
According to the breakdown, a total of 20% of the beneficiary's time would be spent on various planning and 
establishment of goals. However, this broad range of responsibilities does not elaborate on actual duties that 
would be performed on a daily basis for at least 20% of the beneficiary's time. The petitioner also stated that 
20% of the beneficiary's time would include overseeing the petitioner's website and e-commerce business. 
However, the petitioner did not elaborate either on its website or e-commerce business when discussing the 
beneficiary's employment or the employment of other personnel within the organization. As such, her actual 
duties With respect to these aspects of the business are entirely unclear. 
Furthermore, while the petitioner claimed that 5% of the beneficiary's time would include overseeing the 
purchasing and marketing departments, neither of those departments were included in the organizational 
chart; nor were purchasing and marketing duties attributed to the job descriptions of other members of the 
petitioner's staff. This is not the only inconsistency on record. Specifically, the petitioner indicated that 35% 
of the beneficiary's time would be spent supervising the work of other supervisory, professional, and 
managerial employees. However, in a separate statement on appeal, the petitioner claims that "the 
[bleneficiary has managed the essential function of [plresidency," which focuses on the management of a 
function rather than the management of personnel. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
6 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential hnction, the 
petitioner must furnish a written job offer that clearly describes the duties to be performed, 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. 8 C.F.R. 5 204.56)(5) The 
petitioner's suggestion that presidency is a specific function is incorrect. The position of president is an 
execut~ve position within the petitioner's organization and cannot be defined as a functlon necessary to the 
petitioner's operation. Thus, the petitioner's statements on appeal suggest an inadequate understanding of the 
term "function manager" and in general contradict earlier statements which suggest that a significant portion 
of the beneficiary's job would include employee supervision. 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 ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Fmally, with regard to assertions that staffing size is not a dispositive factor in determining a petitioner's 
eligibility, the petitioner's argument is irrelevant, as staffing size was not the basis of the director's denial and 
is not a determining factor in the AAO's current decision. Regardless, staffing can and should be considered 
in order to determine whether the petitioner is physically capable of relieving the beneficiary from hav~ng to 
Page 7 
perform the non-qualifying tasks necessary for the petitioner's daily operation. That being said, the petitioner 
failed to provide adequate evidence to support the staffing structure claimed. In Part 5, item 2 of the Form I- 
140, which was filed on September 30, 2005, the petitioner claimed five full-time employees and ten 
contractors and part-time employees. However, the petitioner provided only four W-2 statements to account 
for four full-time employees. There is no documentation for a fifth full-time employee and no documentation 
for any part-time employees or independent contractors. It is noted that 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. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Moreover, even if an organization provides evidence showing a sizable support staff, approval of the Form I- 
140 is not automatic. The petitioner must nevertheless provide a detailed description of the beneficiary's daily 
tasks. In the present matter, the petitioner has not provided an adequate description of the beneficiary's duties. 
As previously discussed, the description provided in response to the RFE lacks an account of the beneficiary's 
proposed day-to-day duties and instead is replete with generalities and inconsistencies, which undermine the 
petitioner's overall claim that the beneficiary would primarily perform qualifying duties within a managerial 
or executive capacity. 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 employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Based on the information 
provided, the AAO cannot conclude that the beneficiary would primarily perform qualifying tasks. For this 
reason, the petition may not be approved. 
Furthermore, the record supports a finding of ineligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 3 204.56)(3)(i)(A) 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 filing the 
Form 1-140. In the instant matter, the director specifically addressed this issue in the RF'E by instructing the 
petitioner to provide a detailed analysis of the beneficiary's daily activities during her employment abroad as 
well as a percentage breakdown attributed to each of the beneficiary's past duties. While the petitioner 
complied, in part, by providing a list of duties and responsibilities, it failed to attribute a percentage of time 
allotted to each item on the list. This information is relevant and necessary, as the petitioner's list includes 
such tasks as contrict negotiations, organizing trade shows, marketing research, and advertising. In light of 
the fact that these tasks are non-qualifying, the petitioner must establish that the beneficiary did not spend the 
primary portion of her time performing them. Failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying.the petition. 8 C.F.R. 3 103.2(b)(14). The lack of a percentage 
. 
 breakdown precludes the AAO from concluding that the beneficiary was employed abroad in a qualifying 
 , 
managerial or executive capacity. 
Second, 8 C.F.R. 3 204.56)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. In response to the WE, counsel stated that the same 
individual, Mahendra Kumar Bansal, owns 60% of the U.S. petitioner and the beneficiary's foreign employer. 
However, the regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign entities 
for purposes'of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362; Matter of Hughes, 18 I&N Dec. 
Page 8 
289 (Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. While the documentation provided in response to 
the RFE may establish common ownership, it does not resolve the issue of control. The fact that Mr. Bansal 
assumes 60% of the foreign entity's profits and losses does not establish that he controls the foreign 
partnership entity. In fact, the Deed of Partnership is silent as to the issue of control. Since the petitioner has 
not submitted sufficient documentation to establish that the two entities are controlled Mr. Bansal, common 
ownership and control have not been established. 
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), affd, 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 ineligbility as 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.