dismissed EB-1C Case: Jewelry Distribution

(b)(6)
DATE: 
JUN 2 6 2015 
INRE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Off ice (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, 
~1 
Ron Rosenbe~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISI01 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a New York corporation that is engaged in the distribution of silver jewelry. It seeks to 
employ the beneficiary in the United States 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 
would be employed in the United States in a qualifying managerial or executive capacity. 
On appeal, the petitioner submits a brief and additional evidence and asserts that the director's decision 
was erroneous based on the evidence in the record and the law and policy in effect at the time the decision 
was rendered. 
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 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 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. 
(b)(6)
NON-PRECEDENT DECISJOJ 
Page 3 
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 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, 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 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. 
II. Factual Background and Procedural History 
The record shows that the petition was filed on September 26, 2013. The petition was accompanied by a 
supporting statement, dated September 20, 2013, in which the petitioner discussed the beneficiary's 
current responsibilities in his position as chief executive officer as well as the responsibilities that 
(b)(6)
NON-PRECEDENT DECISI01 
Page 4 
correspond to the beneficiary's proposed position as president of the petitioning entity. The petitioner 
stated that the beneficiary is currently responsible for directing the company's management, expansion, 
promoting the business, studying market trends, and monitoring the company's employees. The petitioner 
stated that the beneficiary's proposed position would involve hiring and supervising sales and marketing 
employees, setting sales goals, developing marketing strategies, maintaining contact with buyers, 
participating in gem and jewelry expositions, negotiating contracts, studying market trends, and 
communicating with the Indian parent company. In addition, the petitioner provided a copy of its lease, 
utility bills and bank statements, its 2012 tax return, two quarterly tax returns with corresponding wage 
reports, an organizational chart, and a separate job description which included percentage breakdowns for 
the beneficiary's proposed positon as well as those of the rest of the company employees. 
On July 14, 2014, the director issued a request for evidence (RFE), informing the petitioner that the 
record Jacked sufficient evidence to establish eligibility . Among the issues addressed was that of the 
beneficiary's proposed employment with the petitioning entity. Namely, the director instructed the 
petitioner to provide a definitive statement listing the beneficiary's specific daily job duties and the 
corresponding percentage of time the beneficiary would allocate to each of his assigned tasks. The 
petitioner was also asked to provide its organizational chart naming its employees and listing their job 
titles, job duties, and educational credentials . 
In response, the petitioner provided the requested organizational chart as well as the petitioner's 2013 tax 
return and its employees' wage documents. Although the petitioner's response included a job description 
for the beneficiary's position, the format and content of the job description was identical to the one that 
was originally submitted in support of the Form 1-140. 
After reviewing the petitioner's submissions, the director determined that the pet1t1oner had not 
established eligibility and therefore issued a decision, dated October 28, 2014, denying the petition. The 
director concluded that the petitioner had not established that the beneficiary would be employed in the 
United States in a qualifying managerial or executive capacity. In making his determination, the director 
reviewed the beneficiary's job description, the petitioner's organizational chart, and the information 
contained in the petitioner's employees' wage statements. The director considered employee salaries in 
the wage documents and questioned whether the beneficiary would oversee professional employees and 
whether the petitioner has the ability to relieve the beneficiary from having to allocate his time primarily 
to non-qualifying tasks. The director also noted that the petitioner did not provide evidence in the form of 
educational credentials for the beneficiary's subordinates. 
On appeal, the petitioner submits a brief disputing the director's findings, and specifically contends that 
the evidence of record is sufficient to establish that the beneficiary will be employed primarily in a 
qualifying managerial or executive capacity. In support of this contention, the petitioner provides 
additional evidence in the form of resumes pertaining to the petitioner's employees and the petitioner's 
state quarterly wage reports for all four quarters of 2013. 
Upon review, we conclude that the petitioner did not provide sufficient evidence to overcome the 
director's conclusion. Therefore , for the reasons stated below, we will affirm the denial of the petition. 
(b)(6)
NON-PRECEDENT DECISI01 
Page 5 
III. Issue 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 would be employed in the United States 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 entity in 
question. 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 
employing entity's organizational structure, the duties of the petitioner's support staff, and any other 
relevant factors that may contribute to a comprehensive understanding of the beneficiary's proposed daily 
tasks and his prospective role within the petitioning entity. 
Turning to the beneficiary's job description, we find that the petitioner did not provide sufficient 
information to establish that the primary portion of the beneficiary's time would be allocated to tasks 
within a qualifying managerial or executive capacity. First, we note that the petitioner did not comply 
with the express instructions of the RFE, which asked the petitioner to list the beneficiary's specific job 
duties and to assign a time constraint to each individual activity in order to establish what portion of the 
beneficiary's time would be allocated to tasks within a qualifying managerial or executive capacity. The 
petitioner offered a job description comprised of eleven paragraphs, each listing a general job 
responsibility as the heading with a percentage of time allocated to that overall responsibility. However, 
given that five of the eleven subject headings - totaling 55% of the overall time allocations - include 
multiple job duties, we are unable to determine the specific amount of time the beneficiary would spend 
on individual tasks. This is particularly problematic when a number of the job descriptions within a given 
heading contain vague statements that fail to list actual tasks or list tasks that are of a non-qualifying 
nature. For instance, the petitioner indicated that the beneficiary would allocate 15% of his time to 
planning, developing, and establishing the company's goals and policies. The petitioner indicated that this 
overall set of responsibilities would require the beneficiary to set long- and short-term goals, devise 
strategies for meeting those goals, review and revise strategies when necessary, monitor the effectiveness 
of the strategies, and verify each customer's financial background prior to finalizing a sales transaction. 
However, the petitioner did not describe any actual short- or long-term goals that the beneficiary has or 
would set in his position with the petitioning entity; nor did the petitioner clarify what types of daily 
activities are indicative of the beneficiary's goal-setting role. The petitioner also failed to explain how the 
beneficiary will gauge whether the goals he sets are being effectively implemented or what specific role 
the beneficiary would assume with respect to checking each customer's financial background. In other 
words, it is not clear that someone other than the beneficiary actually conducts the customer financial 
background checks , a job duty that cannot be deemed as one within a qualifying capacity. 
The petitioner was similarly vague in discussing the beneficiary's role with regard to setting sales targets 
and the actual duties underlying the beneficiary's responsibility to direct the petitioner's marketing 
initiatives. Although the petitioner claims that the beneficiary would be responsible for determining 
(b)(6)
NON-PRECEDENT DECJSJOJ 
Page 6 
yearly sales targets, it provided no discussion of the actual daily tasks associated with this general 
responsibility; nor did the petitioner clarify what underlying process is involved in setting the sales goals 
and what specific tasks would be assigned to the beneficiary. Although the petitioner stated that it has 
experienced "good growth" as a result of the beneficiary's "strategic planning," it provided no explanation 
to clarify what specific tasks the beneficiary performed that led to such progress. It is unclear that the 
single act of periodically reviewing reports prepared by sales representatives is responsible for the 
petitioner's business progress. In addition, while the petitioner claimed that the beneficiary and the 
marketing/sales manager would collaboratively determine which "new measures" will be implemented to 
increase sales, the petitioner did not specify any "new measures" or distinguish the beneficiary's role from 
that of the marketing/sales manager in determining what those measures would be. 
Next, in discussing the beneficiary's key role with regard to the company's budget, the petitioner indicated 
that the beneficiary would make sure that "various departments function within the allocated budget." 
However, the record does not show that the petitioner consists of "various departments." A review of the 
petitioner's organizational charts shows that it is focused on marketing and selling the petitioner's 
products and that the petitioner's employees, including the bookkeeper, perform sales, marketing, or a 
combination of marketing and sales tasks. It is therefore unclear what "various departments" the 
petitioner referenced, as the organization appears to be comprised of a bookkeeper, who also performs 
sales-related tasks, and three sales and marketing employees. While the organizational chart makes a 
general reference to "office staff," no positions were named to indicate what positions would comprise the 
"office staff." Moreover , the parenthetical reference beneath the words "office staff" indicates that such 
staff would be hired sometime in the future and that the petitioner did not employ any office staff at the 
time of filing. As the petitioner's eligibility must be based on the facts and circumstances that existed at 
the time of filing, the future hires are not relevant in the matter at hand. Matter of Katigbak , 14 I&N Dec. 
45, 49 (Comm. 1971). 
While the petitioner also claimed that the beneficiary would analyze the market in search for "core items" 
in an effort to update the petitioner's product line, it is unclear how much of his time would be allocated to 
seeking out new products and how much of his time would be spent meeting directly with the customer to 
assist the sales representative in selling the petitioner's merchandise. As the petitioner did not assign time 
allocations to individual job duties it is unclear how the beneficiary's time would be distributed. The 
beneficiary's job description includes other job duties that cannot be readily identified as those performed 
within a qualifying capacity. For instance, the petitioner indicated that the beneficiary would be directly 
involved in training and overseeing non-professional staff, evaluating staff performance, and attending 
jewelry trade shows "where he would meet important customers personally." While the value of these 
tasks is undisputed, they cannot be deemed as tasks performed within a qualifying capacity. 
In addition, we note that the evidence must substantiate that the duties of the beneficiary and his or her 
subordinates 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 managerial position. Here, despite the petitioner's 
organizational chart's depiction of the beneficiary as directly overseeing a single employee with a 
managerial position title - marketing/sales manager - the job description the petitioner provided for the 
(b)(6)
NON-PRECEDENT DECISIOJ 
Page 7 
beneficiary's direct subordinate is not consistent with that of a manager, as the job duties assigned to this 
position do not include overseeing the work of other employees. According to the employee resumes the 
petitioner provided on appeal, the job duties of the marketing/sales manager include creating catalogues 
and mailing lists for potential customers, processing new orders and preparing shipments, listing items for 
internet sales, processing returns and exchanges, and ensuring accuracy in the stock room. There is no 
indication that the employee who is depicted as the beneficiary's only direct subordinate (and whose 
position stands between the beneficiary and the remainder of the petitioner's lower-level staff) is a bona 
fide managerial employee, notwithstanding her assigned position title. Therefore, despite the staffing 
hierarchy illustrated in the petitioner's organizational chart, which indicates that the beneficiary would 
oversee one managerial employee who would oversee the company's non-professional staff, it appears 
that the petitioner's staff is comprised of non-managerial and non-professional employees, whom the 
beneficiary would directly oversee. 
On appeal, the petitioner submits a brief asserting that according to the Occupational Outlook Handbook, 
a Department of Labor publication, there are no degree qualification requirements for marketing/sales 
agents or for the marketing/sales manager. This information further indicates that the petitioner's support 
staff is comprised of non-professional employees and that any time the beneficiary would spend 
overseeing such employees would not be deemed as time spent performing tasks within a qualifying 
capacity. As stated above, the lack of personnel management tasks assigned to the marketing/sales 
manager indicates that the beneficiary's direct subordinate is a manager in position title only and that she 
does not oversee or supervise other personnel, despite the staffing hierarchy illustrated in the petitioner's 
organizational chart. 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)). 
Given the beneficiary's position at the top-most level within the petitioner's hierarchy and the petitioner's 
apparent lack of other managerial positions, there appear to be no employees , other than the beneficiary 
himself, available to oversee the petitioner's non-managerial and non-professional staff. 
In addition, while the petitioner points out that USCIS must consider the petitioner's reasonable needs in 
light of its purpose and stage of development when considering the number of employees the beneficiary 
supervises, we note that 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). 
The size of a company may be especially relevant when USCIS notes discrepancies in the record and fails 
to believe that the facts asserted are true. See Systronics, 153 F. Supp. 2d at 15. Further, based on the 
petitioner's representations, it does not appear that the reasonable needs of the petitioning company might 
plausibly be met by the services of the beneficiary in a qualifying capacity where the primary portion of 
his time would be allocated to tasks of a managerial or executive nature. Regardless, the reasonable 
needs of the petitioner serve only as a factor in evaluating the lack of staff in the context of reviewing the 
claimed managerial or executive duties. 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
101(a)(44)(A) and (B) or the Act. In light of the deficiencies discussed above, the petitioner has not 
established this essential element of eligibility. 
Contrary to the petitioner's claim on appeal that the beneficiary would be employed in a primarily 
managerial and/or executive capacity, the record does not support this assertion. 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 matter at hand, while the beneficiary holds a position that is at the top-most level of the petitioner's 
organization and has discretionary authority over the employees of the organization as well as matters 
concerning the petitioner's business and finances, the record lacks evidence to establish that the petitioner 
has reached a stage in its development such that it can support the beneficiary in a primarily executive 
position wherein his time would be primarily spent directing the management and establishing the goals 
and policies of the petitioning entity. Rather, the record indicates that the petitioner has a managerial 
level of employees for the beneficiary to direct and that instead of directing the management of the entity, 
the beneficiary would assume the role of training, evaluating, and overseeing the company's staff, which 
is comprised of non-professional employees. Nor does the petitioner submit sufficient evidence to 
establish that the beneficiary would be employed in a qualifying managerial capacity where his primary 
focus would be either managing an essential function or managing a staff comprised of supervisory, 
professional, or managerial employees. See section 101(a)(44)(A)(ii) of the Act. Given the beneficiary's 
deficient job description, which consists of both qualifying and non-qualifying tasks and which fails to 
provide an adequate list of specific tasks and their respective time allocations, we are unable to conclude 
that the beneficiary would be employed in a primarily managerial capacity. 
Finally, we note that the petitioner refers to a number of unpublished decisions in which we determined 
that the beneficiary met the requirements of serving in a primarily managerial and executive capacity for 
L-1 classification despite the small size of the petitioning entities. The petitioner has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the unpublished 
decisions. While 8 C.P.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Therefore, in light of the reasons provided in the above analysis, the petitioner has failed to establish that 
the beneficiary would be employed in the United States in a qualifying managerial or executive capacity 
and the petition cannot be approved on this basis. 
(b)(6)
NON-PRECEDENT DECISI01 
Page 9 
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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, in light of the findings issued in the director's decision and the additional findings issued by this 
office, that burden has not been met. 
ORDER: The appeal is dismissed.