dismissed EB-1C Case: Logistics

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Auueals MS 2090 
Gshlnkon, DC 20529-2090 
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FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 073 50610 
YAY 1 8 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. 9 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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. 
 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). 
V ~ohn F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The petitioner's subsequent motion to reopen the matter was granted and a second decision was 
issued affirming the director's prior decision. The matter is now before the Administrative Appeals 
Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to employ the beneficiary as its chief executive officer/company director. 
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. 
§ 11 53(b)(l)(C), as a multinational executive or manager. 
The director initially denied the petition based on the determination that the petitioner failed to 
establish that the beneficiary would be employed in a managerial or executive capacity. 
In the subsequent decision, which was issued in response to the petitioner's motion, the director 
affirmed his prior decision, again finding that the petitioner failed to establish that the beneficiary 
would be employed in a qualifying managerial or executive capacity. 
On appeal, which was filed on May 21, 2008, counsel contends that the director's decision is 
erroneous and indicates that a brief and/or additional information would be submitted within 30 days 
in support of the appeal. On April 14, 2009, the AAO reviewed the record of proceeding and found 
that no additional evidence or information had been received. Accordingly, the record will be 
considered complete as currently constituted. 
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 
Page 3 
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 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. 5 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. 5 1 101 (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 support of the Form 1-140, the petitioner submitted a letter dated January 3,2007, which includes 
the following description of the beneficiary's employment with the U.S. entity: 
[The beneficiary] has been responsible for planning, developing and establishing 
policies and objectives of our enterprise and in planning business objectives and 
developing organizational policies; has been supervising staff members involved in 
performing multiple tasks including, but not limited to, developing marketing 
strategies; sourcing local co-loader companies to tranship [sic] packages and cargo 
through appointed shippers; completing necessary paperwork for U.S. [c]ustoms and 
[c]ustoms [blrokers; in expanding courier exportslinternational air-freight; and in 
developing additional businesses in order to achieve corporate sales and financial 
sales such as venturing into the retail perfume business. 
On September 7, 2007, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide, in part, the following documentation: 1) the petitioner's organizational chart 
illustrating its staffing levels and the beneficiary's position compared to others within the 
organization; 2) a list of the employees the beneficiary oversees; and 3) a detailed description of the 
beneficiary's proposed day-to-day job duties with a percentage of time spent weekly performing each 
listed task. 
In response, counsel for the petitioner submitted a letter dated November 20, 2007 in which he listed 
the supporting documents that were being submitted. Such documents included the petitioner's 
organizational chart, the Form W-2 statements issued by the petitioner in 2006, a W-3 statement 
compiling the wages paid by the petitioner in 2006, and the petitioner's payroll journal for 2006. 
The petitioner's organizational chart illustrated an entity comprised of five levels. The beneficiary 
assumed the top-most position as the company's managing director and chief executive officer; her 
direct subordinate followed at the next tier as the company's director and general manager; his two 
subordinates included an operation manager and a marketing manager; the third tier included a 
supervisor, who was depicted as the operation manager's direct subordinate; and the lowest tier was 
comprised of a cashierlsales clerk, a sales clerk/customer service employee, and a payroll clerk, all 
subordinates of the supervisor. 
With regard to the request for a detailed description of job duties and time allocations, counsel 
merely provided a general paragraph that is virtually identical in content to the one provided initially 
by the petitioner. The only additional information counsel provided was to state that the beneficiary 
would oversee the work of a general manager, who oversees a staff with an array of responsibilities 
as previously mentioned. While counsel stated that 100% of the beneficiary's job duties are 
executive in nature, no specific tasks were actually listed. 
In a decision dated February 14, 2008, the director denied the petition, concluding that the petitioner 
failed to provide the information requested in the RFE. While it appears that the director initially 
overlooked the petitioner's response to the WE, this error was subsequently corrected when the 
director granted the petitioner's motion to reopen and reviewed the submitted documentation. On 
April 28, 2008, the director issued his second adverse decision, concluding that the petitioner failed 
to comply with the information requested in the WE. The director found that the financial 
documentation submitted with the motion shows that the petitioner had only four full-time 
employees, including the beneficiary, which would require that the beneficiary directly perform 
many of the petitioner's daily operational tasks. 
On appeal, counsel for the petitioner asserts that the director's finding with regard to the number of 
employees was incorrect, claiming that the petitioner had a total of eight employees, including the 
beneficiary, rather than four as determined by the director. 
The AAO has since conducted its own independent review of the petitioner's submissions and finds 
that counsel has failed to overcome the director's ultimate conclusion that the petitioner has not 
established eligibility to classify the beneficiary as a qualifying manager or executive. 
First, with regard to the tax and payroll documentation submitted in response to the WE, all of the 
documentation pertains to the petitioner's staff in 2006. As the record shows that the Form 1-140 
was actually filed on January 9, 2007, the 2006 documentation is not relevant in light of pertinent 
case law that requires a petitioner to establish eligibility at the time of filing. See Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). The petitioner's 2006 payroll journal and evidence of 
the Form W-2s issued for work performed in 2006 do not establish whom the petitioner employed as 
of January 2007 when the petition was filed. Thus, while it appears that the petitioner had eight 
employees throughout 2006, it is unclear which of these employees the petitioner employed at the 
time of filing. 
Second, regardless of the director's erroneous statement of fact with regard to the petitioner's staffing 
during an irrelevant time period, in examining the executive or managerial capacity of the 
beneficiary, U.S. Citizenship and Immigration Services (USCIS) will look first to the petitioner's 
description of the job duties. 
 See 8 C.F.R. § 204.5(j)(5). 
 Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature; 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). In 
the present matter, the petitioner was expressly instructed to provide a detailed description of the 
beneficiary's job duties with a specific time allocation for each duty. However, instead of complying 
with the RFE, counsel merely resubmitted information that the director had previously deemed 
insufficient, claiming that the needs of the company determine how much time is allotted to the 
beneficiary's varying tasks. As previously stated, failure to submit requested evidence that precludes 
a material line of inquiry shall be grounds for denying the petition. 8 C,F.R. 5 103.2(b)(14). 
In summary, the petitioner failed to establish which job duties the beneficiary would perform in her 
effort to establish policies and objectives with regard to the petitioner's sales and financial goals. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties, as the 
actual duties themselves will reveal the true nature of the employment. Id. In light of the petitioner's 
failure to provide relevant requested information about the beneficiary's job duties, the AAO cannot 
conclude that the beneficiary would primarily perform managerial or executive tasks during her 
proposed employment with the U.S. petitioner. Therefore, this 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. 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 her entry to the United States as a nonimmigrant to work for the same employer. In 
the instant matter, the director specifically addressed this issue in the RFE by instructing the 
petitioner to provide a detailed description of the beneficiary's daily activities during her 
employment abroad. However, the petitioner failed to provide the requested information. 
Therefore, the AAO cannot conclude that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity. 
Second, 8 C.F.R. 5 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing 
business for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. fj 204.5(j)(2) 
states that doing business means "the regular, systematic, and continuous provision of goods and/or 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or 
office." In the present matter, the petitioner provided receipts titled "CashICheck Settlement Voucher," 
which show payments made for a variety of expenses, including utility charges, employee salaries, and 
inventory purchases. However, the vouchers account for transactions completed from July through 
October 2006. As the Form 1-140 in the present matter was filed on January 9, 2007, the petitioner 
must establish that it had been doing business since January 2006. The petitioner has not provided 
documentation to account for business transactions from January through June 2006. Therefore, the 
AAO cannot conclude that the petitioner had been doing business for one full year prior to filing the 
petition, as required by regulation. 
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.