dismissed EB-1C Case: Laboratory Equipment Distribution

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Oflice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
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LIN 07 169 50766 
IN RE: 
MAY 18 2009 
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: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Appeals Office 
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 Pennsylvania corporation engaged in the sales and distribution of containment, 
clean air, and laboratory equipment technology. The petitioner seeks to employ the beneficiary as its 
business development executive. 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. tj 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that it had been doing business in a regular, systematic, and continuous manner for 
one year prior to filing the Form 1-140; and 2) the petitioner failed to establish that it would employ 
the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of her 
assertions. 
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. 
Page 3 
The first issue in this proceeding is whether the petitioner established that it had been doing business 
for one year prior to filing the instant Form 1-140. 
The regulation at 8 C.F.R. $ 204.5(j)(2) defines doing business as "the regular, systematic, and 
continuous provision of goods andlor services by a firm, corporation, or other entity and does not 
include the mere presence of an agent or office." 
The record shows that the service center received the petitioner's completed Form 1-140 on May 21, 
2007. Therefore, pursuant to the regulatory requirement specified in 8 C.F.R. $ 204.50)(3)(i)(D), the 
petitioner must establish that it had been engaged in the "the regular, systematic, and continuous" course 
of business since May 2 1,2006. See 8 C.F.R. 8 204.5(j)(2). 
In support of the Form 1-140, the petitioner provided documentation showing that it was incorporated 
on September 12, 2005. The petitioner also provided a copy of the stock certificate that was issued on 
the date of incorporation, as well as a number of bank statements from 2005, 2006, and 2007, the 
earliest of whch was dated October 3 1,2005. 
On February 29, 2008, the director issued the first of two requests for additional evidence (RFE). 
Among the documents requested were the Form W-2 statements that the petitioner issued to its 
employees in 2006 and 2007. The petitioner's response included a 2006 tax return as well as the W-2 
wage statements that were issued to the petitioner's employees in 2007. 
After the director reviewed the documentation submitted in response to the WE, as well as documents 
that had been submitted initially in support of the Form 1-140, additional questions arose and a second 
RFE was issued on April 23, 2008. The director specifically commented on the wire transfer activity 
that showed up in the petitioner's bank records, instructing the petitioner to further explain the reason 
for the wire transfers in light of the lack of sales and wages that was apparent from the review of the 
petitioner's 2006 tax return. The director also asked the petitioner to provide documentary evidence to 
establish that it had been doing business for one year prior to the Form 1-140 filing date. 
The response included a letter dated June 3, 2008 from the petitioner's counsel, who explained that the 
wire transfers originated with the parent company, which provided the petitioner with fmancial support 
during its earlier stage of development. Counsel further stated that the petitioner did not commence its 
sales and warehousing activity until March 2007. 
Additionally, the petitioner provided the following documents: 
1. 
 One year's worth of invoices for the office space it had been renting from January 
2006 through January 2007; 
2. 
 An invoice from The Pittsburgh Conference for a booth space the petitioner 
purchased. The invoice shows that the order was entered on June 29, 2006 while 
the first of two credit card payments was made on June 29, 2007. It is therefore 
unclear when the event actually took place and why the first payment was made 
exactly one year after the order for the space was placed; 
Page 4 
3. 
 An invoice dated March 21, 2006 issued to the petitioner by GES. Although the 
invoice shows that the petitioner paid its balance in full, it is unclear what service(s) 
was purchased or how it relates to the petitioner's retail operation; 
4. 
 Copies of checks issued by the petitioner for employee salaries and other 
miscellaneous expenses dated back to October 2006; 
5. 
 Three shipping invoices for services purchased by the petitioner from Campus 
Shipping Center for the shipment of documents, a compact disc, and an Urban 
Outfitters bag. Two of the items were shipped in September 2006. It is noted, 
however, that there is no indication that any of these shipments were made in the 
course of doing business as a retail operation; 
6. 
 Various travel itineraries and invoices from airfare and hotel accommodations in 
October and November 2006; 
7. 
 The petitioner's tax documents, including its 2006 tax return and copies of W-2 
wage statements that were issued in 2007; and 
8. 
 A number of sales invoices and price quotes for prospective customers issued by the 
petitioner. Several of the invoices were accompanied by proof of payment by the 
respective customers. It is noted that the earliest of the documents is a price quote, 
which was dated March 2007, while the earliest evidence of an actual sales 
transaction are sales invoices dated May 30,2007. 
In a decision dated June 16, 2008, the director denied the petition, finding that the earliest evidence 
establishing that the petitioner was doing business were the May 30,2007 sales invoices, which were 
issued nine days after the petition was filed. The director therefore concluded that the above 
documentation failed to establish that the petitioner had been doing business for one year prior to 
filing the Form 1-140. 
On appeal, counsel asserts that the director abused his discretion in denying the petition on the basis 
of the stated grounds, asserting that there is no substantial evidence to support the director's decision. 
Counsel's argument, however, is baseless and entirely overlooks the director's solid observations of 
fact and his application of relevant regulatory provisions. Specifically, the director set out the 
definition of doing business, as provided in 8 C.F.R. 8 204.56)(2), and explained that the earliest of 
the petitioner's business transactions that fits this definition did not take place until after the petition 
was filed. As such, the director properly determined that the petitioner failed to meet the time 
criterion set out in 8 C.F.R. 5 204.5(')(3)(i)(D), which requires that the petitioner must establish that 
it has been doing business for at least one year prior to filing the Form 1-140. (Emphasis added). In 
fact, even if the AAO were to accept counsel's prior assertion, that the petitioner became fully 
operational and was conducting retail and warehousing transactions as of March 2007, the petitioner 
still would have fallen short of the required one year of "regular, systematic, and continuous" business 
transactions for one year prior to filing the petition. 
Page 5 
While the AAO acknowledges the petitioner's business presence prior to May or March 2007, i.e., 
rental of office space and purchasing space at a trade exhibition, these actions merely show that the 
petitioner was in its initial stage of development where it was preparing to commence doing 
business. These actions, however, are not sufficient to establish that the petitioner was actually 
doing business. The petitioner clearly indicates that it is a retail operation. Therefore, the best 
evidence to establish that the petitioner was doing business is any documentation that shows the 
petitioner was doing what it was set up to do, i.e., selling its products. In the present matter, the 
earliest evidence that shows the petitioner was selling its products is dated May 30,2007. Therefore, 
the AAO concludes that there is no evidence of an abuse of discretion in denying the petition on the 
basis of the petitioner's failure to satisfy 8 C.F.R. 5 204.5(j)(3)(i)(D). Moreover, the director's 
conclusion was completely justified by information that counsel herself offered and by the evidence 
that the petitioner submitted. 
The second issue in this proceeding calls for an analysis of the beneficiary's job duties. Specifically, 
the AAO will examine the record to determine whether the beneficiary would be employed in the 
United States in a qualifying managerial or executive capacity. 
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 10 1 (a)(44)(B) of the Act, 8 U.S.C. $ 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 6 
(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 fiom higher level 
executives, the board of directors, or stockholders of the organization. 
In the April 17, 2007 support letter, the petitioner submitted the following description of the 
beneficiary's proposed employment with the U.S. entity: 
[The beneficiary] reports directly to the [clompany [vlice [plresident and [gleneral 
[mlanager and his primary responsibility is the research and implementation of 
market entry strategies focusing on cleanroom [sic] products . . . . He is also 
responsible for all client relations and maintains content for the 
www.ecleanrooms.com project. [The beneficiaryl's initial focus has been on 
cleanroom [sic] equipment though apparel will be included as part of the Phase I1 
entry into the U[.]S[.] market. 
[The beneficiary] also negotiates sales quotas and marketing commitments with 
potential distributors in the U[.]S. He plans and organizes exhibitions in several 
major cleanroom [sic] shows for product introduction. [He] also prepares market 
intelligence reports gathered from overseas customer visits. This includes preparing 
competitor comparisons to be used by distributors. 
In the RFE dated February 29, 2008, the director instructed the petitioner to provide the following 
documentation to assist U.S. Citizenship and Immigration Services (USCIS) in determining the 
beneficiary's employment capacity in the proposed position in the United States: 1) a detailed 
description of the beneficiary's proposed day-to-day duties with a percentage of time assigned to 
each duty; 2) the petitioner's organizational chart illustrating its staffing levels and identifying its 
employees by name and position title; and 3) the petitioner's 2006 and 2007 tax returns as well as the 
wage statements issued to its U.S. employees during those two years. 
In response, the petitioner provided the following list of job duties and percentage breakdowns: 
1. 
 Generate [qluotations as requested by [slales [r]epresentative[s]-50% of the day 
2. 
 Call [slales [rlep to discuss competitive pricing and discounting in the quotations- 
20% 
Page 7 
3. 
 Fill out [blids [slpecifications, prepare [blid documents, bid drawings, prepare [blid 
schedules, [blid pricing-depending if [sic] there is a bid[,] would take 50% of a 
day to prepare 
4. Process [plurchase order-5% 
5. 
 Update [ilnventory [mlaster for [sltocking system of equipments-5% 
6. 
 Maintenance of Quote Werks [sic] Software for [qluote [gleneration-5% 
7. 
 Issue [plurchase [olrder to [the plarent [clompany for [sltock of units in the US 
warehouse--depending id [sic] a need arises, usually takes 10% of the day 
8. Forecasting of quoted equipments-5% 
9. 
 Mailing [plrograrn-marketing of brochure and sell sheet materials--could take up 
days[,] depending on the mailing program 
10. Exhibition preparation and programs-usually happens a week before an 
exhibition-20% of the day 
1 1. 
 Monitoring of [slales [rlep performance-20% of the day every end of the month 
12. 
 Tabulating quotes---daily, weekly and monthly.-40% of a day 
13. 
 Management [slales report-weekly, monthly, quarterly and yearly. 
14. 
 Certifier training program--one whole day for certifier training when there is [sic]. 
15. Service and [rlepairs [clalls-5% 
16. 
 Technical [slupport for [b]iotechnology [clabinets-5% 
17. 
 Provides local show support--could take up one whole day depending on the show. 
18. 
 Regular [slales [rlep phone calls to monitor potential and incoming sales.-20% of 
a day 
19. 
 Product [fleedback tabulations-done every month, 20% 
20. 
 Competitor [plrofiling and product comparison-20% of a day. 
The petitioner stated that 70% of [the beneficiaryl's work involves increasing sales and revenues 
for the U.S. office. The remaining 30% primarily involves marketing and operations such as 
shipment of products, shipment papers, marketing tools and generation of quotes. 
Page 8 
The petitioner also provided its organizational chart showing the international sales vice president as 
the head of the company's sales division with the U.S. entity's general manager as his direct 
subordinate, whose subordinates include an office manager, a warehouse employee, the beneficiary, 
and an intern. The petitioner provided 2007 W-2 wage statements for the general manager, all four 
of the general manager's subordinates. as well as one additional emplovee. whose name does not 
" w A., 
appear on the petitioner's organizational chart. As such, it is unclear what position - 
occupied within the petitioning entity's organization. 
In the WE dated April 23, 2008, the director observed that according to the organizational chart 
submitted in response to the first WE, the beneficiary does not appear to have any subordinates 
reporting to him. Accordingly, the petitioner was asked to provide information about anyone the 
beneficiary may supervise, including each individual's educational level. Additionally, after 
reviewing the list of the beneficiary's prospective job duties, the director asked the petitioner to 
explain why the chart does not list any sales representatives even though the job description 
mentions sales representatives. The director also asked the petitioner to explain for whom the 
beneficiary would be preparing price quotes. 
In response, the petitioner provided a letter from counsel dated June 3, 2008 in which counsel 
claimed that the beneficiary's two subordinates include an administrative assistant, whose job is to 
maintain client contact and deliver and follow up on price quotations, and an intern, whose job is to 
assist the beneficiary in conducting competitor profiling, compile tradeshow leads, help package 
marketing packages, and provide computer support. Counsel further explained that the beneficiary 
prepares sales quotes per the requests of customers and sales representatives, who have direct 
connections to various industry clientele. 
In the June 16, 2008 denial of the petition, the director assessed the petitioner's various submissions 
concluding that the beneficiary did not meet the definition of an employee employed in a managerial 
or executive capacity. The director pointed out that, while the beneficiary performs many essential 
technical services, his job duties are primarily those that are necessary to produce a product or 
provide services and therefore cannot be deemed as being primarily within 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 (Cornrn. 1988). 
The director also acknowledged the petitioner's previously approved L-1 employment of the 
beneficiary, concluding that the prior approval is not conclusive on the issue of the petitioner's 
eligibility for the immigration benefit sought herein. The director properly pointed out that the prior 
nonimmigrant petition is part of a separate record of proceeding from the current immigrant petition 
and that each record is subject to a separate burden of proof and must stand on its own merits. 
On appeal, counsel points to the director's claim that immigrant petitions are often subject to greater 
scrutiny than nonimmigrant petitions, asserting that the director failed to cite any legal authority for 
the higher burden of proof imposed upon the immigrant petitions. While the AAO appreciates that 
the wording in the director's explanation can be misinterpreted, counsel's belief that a higher burden 
of proof is placed on the petitioner filing an immigrant petition than the one filing the non-immigrant 
petition is incorrect. To the contrary, USCIS requires that the preponderance of the evidence burden 
Page 9 
of proof be equally applied to both immigrant and nonimmigrant petitions. However, given that an 
approved nonimmigrant petition bestows only a temporary immigration benefit upon the beneficiary, 
versus the permanent benefit to the beneficiary of an approved immigrant petition, service centers 
often apply a lesser burden to the nonimmigrant petitions, despite the fact that the same burden of 
proof, i.e., the preponderance of the evidence burden, should be equally applied to both types of 
petitions. As the AAO is not under any burden to search through evidence submitted in support of 
other petitions, it has no way of establishing why the nonimmigrant petition was approved while the 
immigrant petition was denied. However, if the previous nonimmigrant petition was approved based 
on the same evidence as contained in the current record, the approval would constitute material and 
gross error on the part of the director. As previously stated by the director, the AAO is not required 
to approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 
19 I&N Dec. at 597. 
In the present matter, the director clearly applied the preponderance of the evidence standard in 
reviewing the evidence submitted, and concluded that the petitioner failed to establish eligibility 
because of the nature of the job duties that consumed the primary portion of the beneficiary's time. 
On appeal, counsel places great emphasis on the petitioner's compliance with the RFE's instruction 
for a detailed description of the beneficiary's proposed job duties as required by 8 C.F.R. 
204.5(')(5). While the AAO acknowledges that the petitioner provided the requested information, it 
is noted that mere compliance with the RFE is not sufficient to warrant approval of the petition. 
Rather, aside from clearly defining the beneficiary's proposed job duties, which in this case the 
petitioner has done, the petitioner must also establish that the primary portion of the beneficiary's 
time would be spent on those job duties that fit the relevant statutory definition of managerial or 
executive capacity. See sections 10 1 (a)(44)(A) and (B) of the Act. 
In the present matter, the petitioner has failed to establish that the majority of the beneficiary's time 
would be spent performing duties in a qualifying managerial or executive capacity. First, the 
petitioner has provided a very confusing breakdown of the beneficiary's time, assigning time 
allocations in such a way as to account for more than 100% of the beneficiary's time. For instance, 
the petitioner clearly stated that 50% of one day would be spent generating price quotes and that 
another 50% of the day would be spent preparing bid-related documents. These tasks, however, 
account for only one day. The petitioner did not indicate the number of days that are attributed to 
preparing price quotes and bid documents. Other tasks, including processing purchase orders, 
updating inventory, software maintenance, forecasting of quoted equipment, service calls, and 
technical support all indicate that they each consume approximately 5% for a total of 30%. 
However, the petitioner does not specify whether these non-qualifying tasks consume 5% of a single 
day or 5% of a full work week. The petitioner further indicated that other tasks, such as those 
associated with the mailing program and providing local support, which are also indicative of non- 
qualifying tasks, could take up to several days. Thus cumulatively, it is these non-qualifying tasks, 
rather than the qualifying ones, that consume the primary portion of the beneficiary's time. While 
the petitioner's method for time allocation is admittedly confusing, the petitioner has provided 
sufficient information to clarify just how the beneficiary's time would be spent. As properly 
concluded by the director, the information provided indicates that the beneficiary would primarily 
spend his time on tasks that are necessary to provide services. Therefore, it cannot be concluded that 
the beneficiary's duties would be primarily in a qualifying managerial or executive capacity. 
Page 10 
Furthermore, the record does not support a finding of eligibility based on at least one additional 
ground that was not previously addressed in the director's decision. The regulation at 8 C.F.R. 5 
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. In the instant matter, the 
director addressed this issue in the RFE by instructing the petitioner to provide a detailed analysis of 
the beneficiary's daily activities during his employment abroad. While the petitioner clearly 
complied with the director's request, the job description provided is similar to the one regarding the 
beneficiary's proposed employment in that the beneficiary appears to have spent the primary portion 
of his time abroad performing daily operational tasks rather than tasks that fit the definition of 
managerial or executive capacity. Therefore, the AAO cannot conclude that the beneficiary was 
employed abroad in a qualifying capacity. 
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), afd, 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 ineligibility 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.