dismissed EB-1C Case: International Trade

, 
... ' Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal prTvacv 
1'fTRTJC COpy 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
Date: NOV 0 3 2010 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
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. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion. 
The fee for a Form I-290B is currently $585, but will increase to $630 on November 23,2010. Any appeal or 
motion filed on or after November 23,2010 must be filed with the $630 fee. Please be aware that 8 C.F.R. 
§ 103.5(a)(1)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
\ 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation that 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. § I I 53(b)(1)(C), as a multinational 
executive or manager. The director denied the petition based on the determination that the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusion, stating that the decision is arbitrary and capricious in 
light of the evidence that has been submitted in support of the petition. 
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 I 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 ofthat 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)(1 )(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 the United 
States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III 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. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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 1-14 submitted a letter dated March 22, 2007 in which the petitioner 
stated that the petitioner's fictitious name. A Fictitious Business Name 
Statement was submitted in support of the petitioner's claim. The petitioner's statement includes the 
following description of the beneficiary's proposed employment: 
[The beneficiary] will continue to be responsible for executing all corporate decisions, 
strategy, and policy. Furthermore, he will continue to plan and develop the overall business 
expansion, strategy; he will also continue to conduct hiring and training of managers and 
supervisors in order to insure proper conduct of employees in the company. 
[The beneficiary] will continue to have the sole authority to hire and fire personnel of the 
company. He will also continue to institute training programs for staff and have the 
appropriate manager supervise such instruction. He will also continue to negotiate, arrange, 
Page 4 
sign all contracts on behalf of the company, and periodically report progress of the company 
to his partners on the Foreign Board of Directors. In his executive capacity with our 
company, [the beneficiary] will have full control of the direction of the corporation and will 
continue to be responsible for decisions in regards to all the aforementioned. Furthermore, 
[he] will continue to oversee the extent and scope of the company's market expansion and 
acquisition plans. 
Additionally, the beneficiary submitted a separate job description in which he stated that he oversees five 
department managers in his position as the petitioner's president. The beneficiary supplemented the record 
with the following description of his proposed position: 
1. Initiate, [p ] lan, direct, lead, guide and implement various business programs. . .. Conducts 
meetings for the improvement of any [sic] company's performance, direct[s] and instructs 
department concerned for [sic] the solution of each problems [sic] in the course of every 
operations [sic]. Coordinate and negotiate with some various potential clients on the other 
possible business prospects .... 
2. Manage and monitor [m]arketing operations under s [m]arketing 
[m]anager, more specifically[,] the projection on the clients['] requirements. Instruct and 
input some updated development on the clients to realize, maintain and capture some of the 
prospective clients['] new requirements. Help in the maintenance of corporate accounts .... 
Represent the company in some of the supposed bidding of supply and contracts on all 
prospective and existing clients['] requirement[ s]. Review monthly sales reports and 
instruct the department on the supposed actions that should be taken to improved [sic] some 
accounts. 
3. Manage and help [c ]oordinate with various principals overseas for the best pricing and 
immediate deliveries of the placed orders. Negotiate, coordinate and instruct [f]orwarders 
and brokers overseas for the easy facilitation of all incoming shipments and outbound 
cargos to support all the pending deliveries .... Negotiate on the manner of handling the 
supposed incoming shipment [s] should be .... Review all shipment report[s.] 
4. [M]anage[,] [d]irects [sic] and monitor the accounting department operations 
_ as manager) particularly on the accounts receivables and payables. Instruct them 
on all the priorities to be covered and demand an [sic] immediate actions and results on all 
pending receivables and payables from various clients. The one that approves and sign[s] 
all priority payments to various suppliers. . . . Plan and implement all the annual budget to 
all departments in operations. Review [m]onthly financial report[.] 
5. In charge of reviewing the intended [p]urchases by the [p]urchasing department under. 
~s [m ]anager and the one that approves whatever materials needed per job 
order. Also, the one that approves the items to be purchased overseas from various 
suppliers and prioritize the items with the earliest date of delivery. Communicate with the 
local supplier on some items ... and the one that negotiate[s] and approves on [sic] the 
supplier in which the items is [sic] to be procured from. Evaluate all supplier's [sic] offer[ s] 
. . .. Review all the inventory stock reports and plan for the immediate sale on all the slow 
Page 5 
moving items in stock. Also review all [sic] the material requirement planning report 
before its proper implementation[.] 
6. In charge in [sic] the review and approval on [sic] all [t]echnical works accepted in 
fabrication and assembly works before its final implementation. Monitor all the pending 
and on going works to synchronize with the supposed deliveries. Responsible in the 
detailed specifications on all the accepted job works including its testing and 
commissioning before delegating it to the technical staff to eliminate the improper waste of 
man-hour and materials for a specific projects [sic] and to conform to the supposed date of 
deliveries. Review all the aspects of operations in the technical side including the 
mechanical and electrical aspects of works and monitor all the safety compliance of the 
company to eliminate accidents on the job. Directs supervision to [the] Technical Manager. 
In addition to the job descriptions, the petitioner also provided its organizational chart in which the 
beneficiary is depicted as the head of the company at the top management tier. The chart is vertically divided 
to represent the petitioner's two phases. The left side of the chart depicts the trading and merchandising 
phase, which includes a bookkeeper and a marketing and shipping clerk as the beneficiary's two subordinates 
with an office and administrative clerk as the latter employee's subordinate. The right side of the chart depicts 
the consulting and services phase, which depicts a financial and accounting manager as the petitioner's direct 
subordinate with two accountants as his direct subordinates. The chart indicates that three claims coding 
contractors perform services under the supervision of one of the accountants, while the other accountant will 
oversee a billing data entry employee when such an employee is hired. 
On March 31, 2009, the director issued a request for evidence (RFE), instructing the petitioner to clarify 
certain aspects of the previously provided job description and to provide IRS Form W-2s that were issued by 
the petitioner in 2006 and 2007. 
In response, the petitioner provided a letter dated April 10, 2009, which includes a brief description of the 
positions listed in the previously provided organizational chart and further clarification of the beneficiary's 
own job description. Specifically, the petitioner indicated that the beneficiary would allocate 15% of his time 
to training the marketing staff in the proper sales techniques with regard to various products and clients. The 
petitioner explained that the beneficiary conducts research by attending technical support seminars and passes 
that information on to his staff. Another aspect of the beneficiary's training responsibility includes training 
the company's staff in new tax rules and guidelines as well as the various government guidelines within the 
context of the home health care business. 
The petitioner indicated that another 15% of the beneficiary's time would be allocated to negotIatmg, 
arranging, and signing contracts. The petitioner indicated that the beneficiary's role in contract negotiation is 
to use his technical knowledge in manufacturing and production operation to narrow down the technical 
parameters with respect to each client and to engage in continuing negotiations with clients for additional 
servIces. 
The petitioner stated that the beneficiary would allocate 50% of his time to the market expansion and 
acquisition plan, which would entail initiating product improvement programs and continuing to research new 
market opportunities. The petitioner discussed the beneficiary's efforts in initiating exclusive product 
research that ultimately resulted in the invention of three patented products. 
It is noted that the petitioner did not comply with or address the director's request for the submission of its 
2007 IRS Form W-2s, which would have accounted for salaries paid during the year in which the Form 1-140 
was filed. 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. § 103 .2(b )(14). 
On July 24, 2009, the director issued a decision denying the petition. The director provided a detailed 
analysis of the beneficiary's expanded job description and determined that the petitioner failed to establish 
that the primary portion of the beneficiary's time would be spent performing tasks within a qualifying 
managerial or executive capacity. The director also commented on the various statements that suggested that 
the petitioner's staffing and operation were not fully assembled at the time of filing, thereby further indicating 
that the petitioner was not ready and able to employ the beneficiary in a primarily managerial or executive 
capacity. 
On appeal, counsel asserts that the director should have taken into account the petitioner's reasonable needs 
and its stage of development. Counsel states that the petitioner is in its initial stage of development and 
requires the beneficiary's "hands-on management" to continue its growth. Counsel's statements, however, 
place undue focus on the petitioner's needs, which do not supersede the petitioner's foremost burden of having 
to establish that the beneficiary's daily tasks would be primarily managerial or executive rather than 
operational in nature. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform 
the enumerated managerial or executive duties). In other words, a petitioner's needs will not excuse a 
beneficiary who spends the majority of his or her time on non-qualifying duties. 
Counsel also stresses the beneficiary's top rank within the petitioner's organizational hierarchy and the 
discretionary authority he has in making business decisions. While these are elements that are statutorily 
required in order for one to be deemed a manager or executive, possessing such characteristics does not 
establish that the beneficiary would allocate the primary portion of his time to managerial- or executive-level 
tasks. It is possible in the matter of a small business entity for an individual to be at the top of the hierarchy 
and possess the highest degree of discretionary authority but not be deemed an employee within a managerial 
or executive capacity within the meaning of section 101 (a)( 44) of the Act. 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. § 204.5(j)(5). The AAO will then consider this information in light of the petitioner's 
organizational hierarchy, the beneficiary's position therein, and the petitioner's overall ability to relieve the 
beneficiary from having to primarily perform the daily operational tasks. Thus, as explained herein, while the 
beneficiary's placement within the petitioner's organizational hierarchy is considered, there are other highly 
relevant factors that may preclude the petitioner from establishing eligibility. 
In the present matter, while the beneficiary may be at the top level of the petitioner's organizational hierarchy 
and while he may possess the discretionary authority as the final decision-maker within the organization, the 
petitioner has failed to provide an adequate job description or evidence to establish that it has the ability to 
relieve the beneficiary from having to primarily perform non-qualifying operational tasks. 
First, with regard to the beneficiary's job description, the beneficiary attributed a considerable number of non­
qualifying tasks to his proposed position. Specifically, the beneficiary stated that he would be directly 
involved in implementing solutions to various problems, negotiating with clients, maintaining current client 
accounts, bidding on supply contracts, and negotiating shipping terms with forwarders and brokers. A 
Page 7 
number of these tasks are mentioned multiple times in relation to various different aspects of the petitioner's 
operation. Additionally, in the response to the RFE, the petitioner indicated that 50% of the beneficiary's time 
would be allocated to conducting market research for the purpose of finding new products to increase the 
petitioner's presence in the market and to expand its operation and future profits. While the AAO 
acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or executive-level 
tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 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 I&N 
Dec. 593, 604 (Comm. 1988). In the present matter, the job descriptions submitted thus far indicate that the 
beneficiary's time would be primarily allocated to non-qualifying tasks. 
The AAO now turns to the second item for consideration-the petitioner's ability to relieve the beneficiary 
from having to primarily perform non-qualifying tasks. In reviewing the organizational chart that follows the 
beneficiary'S job description, the AAO notes that a number of the management positions mentioned in the job 
description, including the positions of marketing manager, purchase manager, and technical manager, were 
not included in the chart, thus leading the AAO to question the accuracy and reliability of both the job 
description and the organizational chart. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The above described anomaly also leads the AAO to question whether, as of the date the petition was filed, 
the petitioner was adequately staffed to support a managerial or executive employee who would devote the 
primary portion of his time to managerial or executive tasks. In reviewing the relevance of the number of 
employees a petitioner has, federal courts have generally agreed that USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to support a 
manager." Family, Inc. v. Us. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) 
(citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41,42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003). 
Accordingly, in light of the unexplained discrepancy it is unclear whether the beneficiary employed a 
marketing manager, a purchase manager, or a technical manager and if so, why these positions were not 
included in the petitioner's organizational chart. In the alternative, if these management positions were not 
filled at the time the Form 1-140 was filed, it is unclear who, if not the beneficiary, would have been able to 
carry out the tasks assigned to these respective positions. As previously noted, any time an employee 
allocates the primary portion of his or her time to the performance of tasks that are necessary to produce a 
product or to provide services, such an individual is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 10l(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. 
In summary, the petitioner in the present matter has failed to submit sufficient evidence to establish that it 
would employ the beneficiary in a managerial or executive capacity. Although counsel has indicated that the 
petitioner is in its initial stage of development and assures the AAO that the petitioner will progress beyond 
this stage, the petitioner assumes the burden of establishing that it is able to employ the beneficiary within the 
qualifying managerial or executive capacity as of the date the petition was filed. Here, the evidence of record 
contains a job description indicating that the beneficiary's proposed employment would include numerous 
non-qualifying tasks with little evidence to indicate that the petitioner has the support staff to employ the 
beneficiary in a primarily managerial or executive capacity. As such, the instant petition cannot be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. § 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifying managerial or executive position for at least one out of the three years prior to his entry 
to the United States as a nonimmigrant to work for the same employer. Published case law has established 
that 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), affd, 905 F.2d 41 (2d. Cir. 1990). In the instant matter, the petitioner 
did not adequately describe the beneficiary'S employment abroad, thus precluding the AAO from determining 
whether the beneficiary'S position with the foreign entity was primarily comprised of qualifying tasks. 
Second, 8 C.F.R. § 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary'S foreign employer. The regulation at 8 C.F.R. § 204.5(j)(2) states in 
pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In the present matter, the petitioner claimed that it is a subsidiary of the beneficiary'S foreign employer. In 
support of this shows that 6,000 shares of its stock 
were issued to However, Schedule E of the petitioner's 
2006 tax return indicates that 60% of its common shares were issued to the beneficiary while another 15% of 
its common shares were issued to Thus, the latter document shows the beneficiary as 
the petitioner's majority owner than a firm, corporation, or other legal entity, as noted in the definition for the 
Page 9 
term subsidiary. See 8 C.F.R. § 204.5(j)(2). As previously stated, the petitioner must provide independent 
objective evidence to resolve any inconsistencies in the record. See Matter of Ho, 19 I&N Dec. 591-92. Such 
evidence has not been presented in this matter. 
Furthermore, it is noted that 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; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 
18 I&N Dec. 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. Thus, even if the petitioner were 
able to resolve the inconsistency with regard to its own ownership, the record nevertheless lacks sufficient 
evidence with regard to the ownership of the foreign entity. 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». As the record lacks sufficient evidence establishing that the U.S. entity and the beneficiary's 
foreign employer are similarly owned and controlled, the AAO cannot conclude that the petitioner has the 
requisite qualifying relationship to meet the regulatory requirement noted above. 
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 Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.