dismissed EB-1C Case: Internet

(b)(6)
DATE: 
AUG 0 7 2013 
JNRE: Petitioner: 
Beneficiary: 
OFFICE: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services. 
Administrative Appeal s Office (AAO) 
20 Massachusett s Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
JNSTR UCTIONS : 
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 Fonn I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, tiling location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
/Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
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 Delaware corporation that seeks to employ the beneficiary in the United States as its CEO. 
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. § 1153(b)(l)(C), as a 
multinational executive or manager. 
In support of the Form I-140 the petitioner submitted a statement dated October 3, 2011, which addressed 
several eligibility requirements, including the beneficiary's proposed employment with the petitioning entity . 
The petitioner also provided corporate and financial documents in its effort to establish eligibility . 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) dated February 8, 2012 informing the petitioner of 
various evidentiary deficiencies . The director instructed the petitioner to submit, in part, a more detailed job 
description pertaining to the beneficiary's proposed employment listing the beneficiary's proposed job duties 
and an estimate of the percentage of time the beneficiary planned to allocate to each of the enumerated items. 
The director also asked the petitioner to provide an organizational chart depicting the petitioner's staffing at 
the time the petition was filed. 
The petitioner responded to the RFE by providing a statement dated April 19, 2012, which included a 
description of the beneficiary's proposed position. The petitioner also provided a copy of its organizational 
chart depicting the beneficiary in his proposed position along with his two subordinates, a financial manager 
and a producer. 
After considering the petitioner's response, the director determined that the pet1t1oner was statutorily 
ineligible based on its failure to establish that the beneficiary would be employed with the U.S. entity in a 
qualifying managerial or executive capacity. The director found that the petitioner offered a deficient job 
description for the proposed employment and further observed that the petitioner submitted IRS Form W -2 
statements for a total of five employees for 2011, but depicted only three employees in its organizational 
chart. The director found that the minimal staffing would preclude the petitioner from being able to employ 
the beneficiary in a qualifying managerial or executive capacity. Additionally, relying on the common law 
definition of the term "employee" and the beneficiary's ownership interest in the petitioning entity , the 
director determined that the petitioner and the beneficiary do not have an employer-employee relationship. In 
light of these adverse findings, the director issued a decision dated December 14, 2012 denying the petition. 
On appeal, counsel submits a brief disputing both of the director's findings. Counsel places great emphasis 
on the beneficiary's position title and placement within the organization, stressing the beneficiary's 
discretionary authority over business and personnel matters. Counsel acknowledges that the petitioning entity 
is small in size and that the beneficiary would therefore be "involved at all operational levels." He indicates 
that the beneficiary would be called upon to recruit all staff, including in-house employees and contract 
workers, and he would build and maintain partnerships and the petitioner ' s client base. Counsel claims that it 
is common to have a CEO among "the vast majority of internet companies" that are similar in size to that of 
the petitioner. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
Upon review, and for the reasons discussed below, the AAO finds that counsel's assertions are not persuasive 
in overcoming the director 's adverse finding s. 
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 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 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. 
Section 101(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 supervi sed, 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 
(b)(6)
Page4 
NON-PRECEDENT DECISION 
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 
(iv) receives only general supervision or direction from higher level executives , 
the board of directors, or stockholders of the organization. 
In general, when examining the executive or managerial capacity of the beneficiary, the AAO reviews the 
totality of the record, starting first with the petitioner's description of the beneficiary's job duties . See 8 C.P.R. 
§ 204.5(j)(5) . A detailed job description is crucial, as the duties themselves will reveal the true nature of the 
beneficiary's foreign and proposed 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). The AAO will then consider this information in light of 
other relevant factors, including (but not limited to) job descriptions of the beneficiary's subordinates and their 
respective job duties, the nature of the business conducted, and any other facts contributing to a 
comprehensive understanding of the beneficiary's actual role within the petitioning entity's organizational 
hierarchy . 
Turning first to the job description the petitioner offered in response to the RFE, the AAO finds that the 
director's ' observations regarding the overall generality of the description were accurate. Although the 
petitioner assigned 40% of the beneficiary's time to developing the organization' s primary goals, operating 
plans, and short- and long-term objectives, these terms are obscure and consist primarily of paraphrased 
portions of the statutory definition of executive capacity. See Section 10l(a)(44)(B)(ii) of the Act. The 
petitioner does not explain what specific daily tasks are indicative of developing goals and policies within the 
context of the petitioner's specific type of internet business and organizational composition. The AAO finds 
that the petitioner is similarly vague in stating that 25% of the beneficiary's time would be allocated to 
leading the organization towards its set goals. Although the petitioner indicates that this would involve 
meeting and advising executives, no clarifying information is provided to establish to which executive it was 
referring - those within the petitioner's 
own organization or those employed by its business partners - given 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
that the beneficiary's responsibility to delegate authority to his subordinates was listed separately from 
meeting with and advising executives. 
The remaining portions of the position description included the following subheadings: infrastructure and 
systems administration, roadmap and future expansion, and industry position and goodwill. The information 
within the first subheading indicates that the beneficiary would be directly involved in managing vendor 
relationships to ensure that companies whose services the petitioner contracts continue to meet the petitioner's 
needs; information within the second subheading indicates that the beneficiary would be in charge of forging 
business relationships in order to introduce its products to a variety of markets; and information within the 
third subheading indicates that the beneficiary would attend networking events, seminars, and conferences to 
represent the petitioning ent!ty. 
The AAO finds that these job duties, while clearly germane to the petitioner's continued business success, are 
more indicative of tasks necessary to provide marketing and sales services. While the AAO acknowledges 
that no beneficiary is required to allocate 100% of his or her time to managerial- or executive-level tasks, the 
petitioner must establish that the non-qualifying tasks the beneficiary would perform are only incidental to the 
position in question. 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 l01(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 (Corum. 
1988). 
In the present matter, the non-qualifying tasks appear to comprise the main portion of the beneficiary 's 
proposed position and thus cannot be deemed as merely incidental. While counsel contends on appeal that the 
beneficiary is "the CEO of a smaller sized emerging company," the petitioner's limitations due to its small 
size will not outweigh its burden of having to establish that as of the date the petition was filed it had the 
capability to employ the beneficiary in a managerial or executive capacity such that the primary portion of his 
time would be allocated to tasks of a qualifying nature . A company's size alone, without taking into account 
the reasonable needs of the organization, may not be the determining factor in denying a visa to a 
multinational manager or executive. See§ 10l(a)(44)(C) of the Act, 8 U.S.C. § 110l(a)(44)(C) . However, it 
is appropriate for users 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). 
Regardless of whatever measures the petitioner plans to take, including hiring additional staff, to relieve the 
beneficiary from having to allocate his time primarily to non-qualifying tasks, the petitioner cannot be 
deemed eligible if eligibility can not be established at the time of filing. A petition cannot be approved at a 
future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 
14 I&N Dec. 45, 49 (Comm. 1971). Here, the petitioner has not presented evidence to establish that it was 
ready and able to employ the beneficiary in a qualifying capacity at the time of filing. Therefore, on the basis 
of this finding the instant petition cannot be approved . 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
In light of the above adverse finding with regard to the petitioner's statutory ineligibility, the AAO need not 
address the director's second adverse finding, which was based on the common law definition of "employee." 
Lastly, while not previously addressed in the director's decision, the AAO finds that the record lacks 
sufficient evidence that the petitioner fits the definition of multinational , which is defined as a qualifying 
entity, or its affiliate, or subsidiary, that conducts business in two or more countries, one of which is the 
United States. 8 C.P.R. § 204.5(j)(2) . Although the petitioner indicated that its affiliate is an Australian 
entity, whose corporate existence is substantiated by the documents submitted in support of the petition, the 
record lacks sufficient evidence that the foreign entity continues to do business by engaging in the regular, 
systematic, and continuous provision of goods and/or services. /d. 
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 ground of statutory ineligibility as 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, 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). The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.