dismissed EB-1C Case: Insurance Brokerage And Musical Instrument Rental

(b)(6)
DATE: JUL 2 7 2015 
INRE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Servic( 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, 
filing location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
. .. --GJ.-., -
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an Arizona corporation that is engaged in the insurance brokerage system and rental of 
musical instruments. It seeks to employ the beneficiary in the United States as a "broker/manager." 
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 
position with the U.S. entity would be in a qualifying managerial or executive capacity. 1 
I. The Law 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 1 
year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and the alien 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 I-140 for classification of an alien under section 
203(b)(1)(C) of the Act as a multinational executive or manager. No labor certification is required for 
1 Although the petitioner 's statement on appeal addresses both the beneficiary's former and proposed employment , 
thus indicating that both issues factored in o the denial, a review of the director's decision indicates that only the 
beneficiary's proposed employment with the petitioning entity served as the chief basis for the unfavorable decision . 
Accordingly, the primary focus of the discussion at hand will be on the facts that pertain directly to the beneficiary's 
proposed position . 
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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 manageri al or 
executive capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides : 
The term "managerial capac ity" 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, prof essional , 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 
action s (such as promotion and leave authorization), or if no other 
employee is directly supervised, functions at a senior level within the 
organiz ational hierarchy or with respect to the function manag ed; 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 cap acity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
profess ional. 
Section 10l(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m which the 
employee primarily--
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercis es wide latitude in discretionary decision-making; and 
(iv) receive s only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
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II. Factual Background and Procedural History 
The record shows that the petition was filed on March 18, 2014. The petition was accompanied by a 
business plan (with a January 2014 commencement period) along with tax, corporate, and business 
documents pertaining to the U.S. entity. 
Following a review of the petitioner's supporting documents, the director determined that the record 
lacked sufficient evidence to warrant approval of the petition . Accordingly, on August 11, 2014, the 
director issued a request for evidence (RFE), instructing the petitioner to provide, in part, evidence 
addressing the beneficiary's proposed employment in the United States. Namely, the director instructed 
the petitioner to provide an organizational chart illustrating its staffing levels and the beneficiary's 
detailed job description listing the beneficiary's specific tasks and the percentage of time the beneficiary 
plans to allocate to each item listed . 
The petitioner's response included a statement, dated October 31, 2014, which provided a supplemental 
job description with a percentage breakdown assigned to the beneficiary's proposed position with the U.S. 
entity. The petitioner also provided additional evidence in the form of exhibits A-FF. 
After reviewing the petitioner's submissions, the director concluded that the evidence of record did not 
establish that the beneficiary's employment with the U.S. entity would be in a qualifying managerial or 
executive capacity . Accordingly, the director issued a decision, dated November 28, 2014, denying the 
petition. 
On appeal, the petitioner submits a brief and supporting documents, disputing the director's decision. 
Upon conducting a comprehensive review of the petitioner's statements and submissions , we conclude 
that the petitioner did not provide sufficient evidence to overcome the director's denial. While we 
consider all evidence on record, we will specifically reference only those documents that are relevant to 
the beneficiary's proposed position with the U.S. entity. For the reasons stated below, we will affirm the 
denial of the petition . 
III. Issues on Appeal 
As indicated above, the primary issue to be addressed in this proceeding is whether the petitioner 
provided sufficient evidence to establish that the beneficiary's proposed position with the U.S. entity 
would be in a qualifying managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, we review the 
totality of the record, starting first with the description of the beneficiary's job duties with the U.S. entity. 
Published case law has determined that the duties themselves will reveal the true nature of the 
beneficiary's 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). We then consider the beneficiary's job description in the context of the 
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petitioner's organi zational stru cture, its staffing and operational needs, as well as the job duties perf ormed 
by support personnel. 
Turning to the beneficiary 's job description , the record contains deficient and inconsistent information 
that fails to disclose the speci fic daily tasks the beneficiary would perform in his proposed position. The 
record shows that the petition er originally claimed - at Part 6, No. 3 of the Form I-140 - that the 
beneficiary would "act as [an] insurance broker and real estate broker and [would] oversee all business 
operations." However , looking to the supplemental job description that the petitioner pro vided in 
response to the RFE, it is unclear which job duties represent the beneficiary 's responsibilities as an 
insurance and real estate brok er. In other words, the job description focuses on the beneficiary's oversight 
role, but fails to remain consistent with the original Form I-140 claim, where the petitioner expressly 
indicated that the beneficiary's role would not be one of strictly overseer, but rather indicated that the 
beneficiary would also act as an insurance and real estate broker. None of the job duties listed in the 
supplemental job description included tasks associated with an insurance or real estat e broker. 
Further , the petitioner indicated that 45% of the beneficiary's time would be allocated to "[ c]reating , 
communicating , and implementing the organization's vision, mission, and overall direction" and 
"[l]eading the development and implementation of the organization's strategy." The petitioner also 
indicated that 31% of the beneficiary's time would be allocated to staying aware of "the extern al and 
internal competitive landscape , opportunities for expansion , customers , markets, and industry trend s a nd 
developments." As properly observed in the director's decision, these statements are vague and, thus lack 
the information necessary to co nvey a meaningful understanding of the actual tasks the beneficiary would 
perform on a d aily basis within the context of the petitioner's organizational structur e. Stating that the 
beneficiary would have the discretionary authority to define the company's vision and determin e what 
direction the business will take is insufficient and does not distinguish the benefici ary's specific role 
within the petitioning organiz ation from others employed in other industries and who similarly ass ume 
leadership roles in their respective businesses. These statements do not establish that the underlying tasks 
the beneficiary would undertake are of a qualifying executive nature. The petitioner was similarly vague 
in failing to define the beneficiary's specific role and the corresponding tasks he would perform in relation 
to customers, mark ets, and industry trends and developments. While these elements indic ate that 
conducting marketing analysi s and gathering information would be required, the petitioner fails to clarify 
who within its organizational hierarchy would carry out these operational tasks. 
On appeal, the petitioner attempts to add to the deficient job description that was provided in respons e to 
the RFE by providing a more detailed list of the beneficiary's job duties. For instance , with regard to the 
first element to which the beneficiary would allocate 45 % of his time , the petitioner broke this down into 
three specific tasks: weekly meetings with the office manager of the petitioner's insurance busin ess, to 
which the benefici ary would allocate 20% of his time; weekly meetings with the offic e manager of the 
petitioner's music instruments rental busine ss, to which the beneficiary would allocate 10% of his time; 
and three weekly meetings with the petitioner's administrative assistant , to which the beneficiary wo uld 
allocate 15% of his time. However, the record shows that the insurance and music rental busine sses, 
while owned by the petitioning entity, are separately incorporated and thus are not part of the petiti o ning 
entity itself. While the beneficiary may be tasked with overseeing the two entitie s, which may be the 
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petitioner's subsidiaries based on the petitioner's ownership interest in each entity, the key concern in the 
present matter is the beneficiary's job duties within the immediate petitioning entity. It is therefore the 
petitioner's organizational composition that is relevant to the discussion at hand, not the organizational 
compositions of the petitioner's two U.S. subsidiaries . 
Accordingly, we now turn to a discussion of the petitioner's organizational hierarchy to determine what 
operational needs the petitioner seeks to meet and who within its organizational structure performs the 
operational tasks that are necessary to meet those needs. We find that the petitioner properly points out 
on appeal that the director unnecessarily focused on the petitioner's failure to establish that the beneficiary 
would oversee the work of a supervisory, professional, or managerial staff. The director's focus on the 
beneficiary's management of personnel is misplaced given that managing personnel is an element that is 
inherent to the definition of the term "managerial capacity," whereas the petitioner claims that the 
beneficiary would be employed in an executive capacity. However, the petitioner's organizational 
structure and staffing composition are nevertheless highly relevant, as they address the critical question of 
whether the petitioner is capable of supporting the beneficiary in a primarily executive capacity. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct[] the management" and "establish[) the 
goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for the beneficiary to direct, and the beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day operations 
of the enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial employee. 
The beneficiary must also exercise "wide latitude in discretionary decision making" and receive only 
"general supervision or direction from higher level executives, the board of directors, or stockholders of 
the organization." !d. 
In the present matter, the record does not establish that the petitioner possesses the organizational 
complexity that would support the beneficiary in a position that is primarily in an executive capacity. The 
petitioner indicated (at Part 5, No. 2(c) of the Form 1-140) that it had seven employees at the time the 
petition was filed. However, this information is inconsistent with the petitioner's quarterly tax return for 
the 2014 first quarter (during which the petitioner filed its Form 1-140), which indicates that the 
petitioner 
had only two employees at the time of filing. 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). 
We further point to the petitioner's failure to comply with the director's request for an organizational chart 
depicting the petitioner's organizational structure and staffing. While the evidence of record must 
necessarily support the information that the petitioner offers in an organizational chart, the fact that the 
petitioner did not provide the requested document further hinders our ability to gain a comprehensive 
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understanding of how the petitioning entity operates, what the beneficiary's specific role and job duties 
are within the context of that operation, and who within the organization actually performs the petitioner's 
daily operational tasks . While it is possible that the petitioner would relieve the beneficiary from having 
to engage in certain operational tasks by outsourcing them to independent contractors who are not directly 
employed by the petitioner and thus would not be claimed as the petitioner's employees, the record lacks 
evidence to support this assertion. 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)). 
Accordingly, in light of the various deficiencies described above, we cannot conclude that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity . On the basis of 
this adverse conclu sion, this petition cannot be approved. 
IV. Conclusion 
In visa petition proceedings , it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed .