dismissed EB-1C Case: Logistics And Procurement

(b)(6)
DATE: MAR 0 5 2013 
INRE : Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a M~ltination~l Executive or Manager Pursuant to . 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § ll53(b)(l )(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
·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 casd must be made to that office. 
. . I . 
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If you believe the AAO inappropriately applied the law in reaching its decision. or· you have additional 
information that you wish to have considered, you may fit~ a motion to reconsider or a motion to reqpen in 
accordance with the instructions on Forrn I-290B, Notice !of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C .F.R. § 103.5. Do .not file any motion I . 
directly with the AAO. Please be .aware that 8C.F .R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider o~ reopen. 
Thank you, 
www.uscis.gov 
(b)(6)
Page2 
DISCUSSION: The preference visa petition was deni~d by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. . I . 
The petitioner is engaged in "equipment leasing, logistics and business support, procurement and 
supply and import, export of goods." It seeks to emP,loy the beneficiary as its Executive Director. 
Accordingly, the petitioner endeavors to classify the bJneficiary as an employment-based immigrant 
pursuant to section 20:3(b)(l)(C) of the Immigratidn and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(C), as a multinational executive or manag~r. · · · 
The director denied the petition. on March 28, 2012, Jnclu.ding that the petitioner failed to est.ablish 
that it will employ the beneficiary in a qualifying mana~erial or executi~e capacity. : 
On appeal; the petitioner asserts that the denial of the Jetition was based ~n an erroneous conclusion 
of fact on the part Qf the director. 
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 ali~n, in the 3 years pre.ceding the 
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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 othe~ 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 bis provision to only those executives and 
managers who have previously worked for a fiim, corP,oration or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to. the uhited States to work for the same entity, or its 
affiliate or subsidiary. . . I . . . . · ' 
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 ex+cutive 01; manager. No labor certification is 
required for this classification. The prospective employer in the United States . must furnish a job 
offer m the form of a stat~ment which indicates that tHe alien is to be employed in the United States 
in a managerial or executive capacity. Such a statdment must clearly describe the duties to be 
performed by the alien. 
(b)(6)
Page 3_ 
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The issue that will be addressed in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to 1determine whether the p~titioner submitted 
sufficient evidence to establish that 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. § 110l(a)(44)(A), provides: · 
The term "managerial capacity" me~s an assiJment within an organization in which the 
employee primarily--
(i) 
(ii) 
(iii) 
(iv) 
·manages the organization, or a department, subdivision, function, or 
component of the organization ; 
supervises and controls the work: of other supervisory, professional, or 
managerial employees, or maniges an essential functiqn within the 
organization, or a department or ~ubdivision of the organization; 
if another employee or other emJloyees are directly supervised, has the 
authority to hire and fire or recorhmend those as well as other personnel · 
I . 
actions (such as promotion and leave authorizati.on), 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 
. d . . . th d I d . f th . . . exercises 1scret10n over e ay-to- ay operatiOns o e activtty or 
function for which the employed has authority. A first-line supervisor 
is not considered to be acting ink managerial capacity merely by virtue 
I 
of the supervisor's supervisory duties unless the employees supervised 
are professional. · 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B), provides: 
. The term "executive capacity" means· an assigLent within an organization in which the 
employee ~r~marily--
(i) 
(ii) 
(iii) 
(iv) 
directs the management of the 0rganization or a major component or 
function of the organization; · · 
establishe~ the goals and policies of the organization, component, or 
function; 
exerc~ses wide latitude in discretionary decision-making; and 
receives only general supervilion or direction from higher level 
executives, the board of director~, or stodcholders of the organization. 
(b)(6)
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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). Published case law clearly 
supports the pivotal role of a clearly defined job descriJ,tion, as the actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd.lv. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F.2d41 (2d. Cir. 1990); see also 8 C.1F.R. § 204.5(j)(5). That being said, however, 
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USCIS reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the petitioner'k business, the employment and remuneration 
of employees, as well as the job descriptions of the behefidary's subordinates, if any, and any other 
facts contributing to a complete understanding of a ben~ficiary's actual role within a given entity. 
The definitions of executive and managerial capacity hjave two parts. First, the petitioner 'must show . . I 
that the beneficiary performs the high-level responsibilities that are specified in the definitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his o~ her time on day-to-day functions. Champion 
world, Inc. v. I~s, 940 F.2d 1533 (Table), 1991 WL 1r1o (9th Ci~. July 30, 1991). 
In the present matter, an analysis of the record does not lead to affirmative conclusion that the 
beneficiary was employed abroad or would be em~loyed in the United States in a qualifying 
managerial or executive capacity. I . . . ' . 
With regard to the beneficiary's U.S. position, the petitioner provided a vague arid general job 
description such as the beneficiary will, "formulate thejpolicies, goals and objectives of the US entity 
to support the foreign entity's global objectives;" act as "signatory to Bank Accounts and authorizing 
financial instruments _ to settle financial obligation j there-of"; and report "to only the Group 
Chairman/CEO and the Board of Directors." It is unelear what types of specific tasks actually fall 
within these broad categories and whether the supervisbry tasks the beneficiary is claimed to perform 
are of a qualifying nature. Reciting the beneficiary's vague job responsibilities or broadlly-cast 
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's 
daily job duties. The petitioner has failed to provide I any detail or explanation .of the beneficiary's 
activities in the course of her daily routine. The actual duties themselves will reveal the true nature I . 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 72f F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 
905 F.2d 41 (2d. Cir. 1990). The petitioner's vague and general description of the beneficiary's 
position does not identify the actual duties perforfued, such that they could be classified as 
managerial or executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary will "plan and 
control the function of procurement of automobiles ~nd equipment in US for export to Nigeria"; 
"authorize the payment for goods and services, execute purchase contracts in the United States and 
make necessary arrangement to ship consignment Ito the foreign entity in Nigeria"; "execute 
documents to be filed with the Commonwealth of Ma~sachusetts, IRS, DUA, Social, Security, etc .. "; 
and, "acknowledge, deliver and record any recordable instrument affecting the entity's interest in real 
prope~y. ". !he petitioner ~oes not provi~e sufficie~t efi~ence that the p~titioner eii_Iploys individual_s 
to asstst wtth the budgetmg, bookkeepmg, and tmportmg and exportmg operat10ns and, thus, It 
appears that the beneficiary is performing the duties infuerent in operating a business such as finances, 
(b)(6)
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Page 5 
customer service, negotiations, contracts,. and importing and exporting operations. An employee who 
"primarily" performs the tasks necessary to produce a product or provide a service 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" perfofrn tqe enumerated managerial or executive 
duties); see also Matter of Church Scientology International, 19 I & N Dec. 593,604 (Comm. 1988). 
The petitioner submitted an organizational chart depiclng employees supervised by the beneficiary 
and a brief description of their job duties. As indicattd in the organizational chart, the beneficiary 
I . 
will supervise an Administrative Officer and a Logistics Officer, However, it is not clear if these 
individuals are full-time employees or even part-time dmployees. According to the IRS Form 1120, 
U.S. Corporation Income Tax Return, for 2011, the pditioner paid $10,260.00 in salaries and wages, · 
not inc.lu~ing the beneficiary. Thus, it appears th~t .thejlog~stics offic~r and the administrative officer 
work hm1ted hours throughout the year, The petitiOner did not provide an IRS Form W-2 or Form 
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1099 to indicate the hours worked by each of these ind~viduals. Thus, it is not clear who· will handle 
the duties that are performed by the administrative offi_cer and logistics officer when they are not 
. working with the petitioner, such a~ scheduling shipm~nts, inventory management, quality assurance 
and control, delivery of automobiles to the ship yard, baintaining records, scheduled appointme~lts, 
schedule bills and invoices, bookkeeping and account rJconciliation and filing documents. 
As discussed above, th~ petitioner has not . identified eLployees within the petitioner's org~nization, 
subord_inate to the beneficiary, who would relieve th~ beneficiary from performing ro~tine duties 
inherent to operating the business. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof ib these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165(Comm'r 1998) (citing Matter ofTreasu~e Craft of California, 14.I&N Dec. 190 (Reg. 
Comm'r 1972)). It is incumbent upon the petitioner tb resolve any inconsisten~ies in the record by 
iridependent objective evidence. Any attempt to expl~in or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Ma(ter cif Ho, 19 I&N Dec. 582, 591-92 (B lA 1988). I . . 
The petitioner also explained that it outsources the tax and accounting _ services, payroll, foreign 
forwarding/shipping services and auto procurement arld delivery services. The petitioner provided 
letters from the contractors explaining that they have ~done business or are doing business with the 
petitioner, However, the petitioner 
did not provide the !contracts with these employees to confilm the 
hours and amount of work performed by the contract employees. Additionally, the petitioner has not 
explained how the services of the contracted employees obviate -the need for the beneficiary to 
primarily conduct the petitioner's business. Without ddcumentary evidence to support its statements, 
the petitioner does not meet its burden of proof in thesk proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998). 
While the AAO acknowledges that no beneficiary is required to allocate 100% of her time to 
managerial- or executive-level tasks, the petitioner milist establish that the non-qualifying tasks the 
I 
beneficiary would perform are only incidental to her proposed position. An employee who 
"primarily" performs the tasks necessary to prod~ce a Jroduct or to provide services is not considered 
to be "primarily" employed in a managerial or executive capacity, See.sections l~l(a)(44)(A) and 
(b)(6)
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Page6 
(B) of the· Act (requiring that one "primarily" perform the enumerated managerial or executive 
duties); see also Matter of Church Scieiuology Intemahonal, 19 I&NDec. 593, 604 (Comm. 1988). 
In the present matter, the petitioner has failed to establi~h that the beneficiary would be employed in a 
qualifying capacity. · . . , . . I . · · · · . 
On appeal, the petitioner does not provide any evidence to overcome the director's finding that the 
beneficiary's proposed would not be within a qualifyiJg managerial or executive capacity. Instead, 
the petitioner focuses on one statement made 
by the,dirbctor in his decision. Specifically, the director 
noted that the petitioner provided affidavits from ~eighbors to. establish that the beneficiary's 
residential dwelling is used to operate the business. The director noted that "upon contacting said 
neighbors, additional statements made to this office by them revealed that they regularly see the 
beneficiary picking up the cats and cleaning cars on a rJgular basis,. II 
On appeal, the petitioner provides the follo~ing informltion regarding th~s issue: 
The beneficiary occasionally (not regularly) rna~ be seen outside with cars in company 
of the contractor ·and/or staff inspecting the dars to· ensure conformity with parent 
company request and make necessary report tolt.P.e parent company in Nigeria in line 
with internal control procedures ofthe group. Anj y information received by USCIS to 
suggest that the beneficiary is seen picking up the cars and/or cleaning the cars on a 
regular basis is erroneous and misleading; therefore should be disregarded. 
The AAO notes that even if it disreg~ds the director'j corruil.~nts regarding statements made by the 
·affiants, the petitioner has not met its burden to establiJh that the beneficiary would be employed in a 
primarily managerial or executive capacity. The dire¥or's decision was also based, in part, on the 
petitioner's failure to' provide a detailed description of the beneficiary's actual duties and its failure to 
establish how the petitioner's limited ·number of ettiployees and claimed contractors relieve the 
beneficiary from being primarily engaged in non-qual~ifying duties. As discussed above, the AAO 
concurs with these findings, and the petitioner has nbt offered any additional evidence on appeal 
pertaining to the beneficiary's actual duties. · 
Accordingly, the record does not establish that the petitiOner will employ the beneficiary .in a 
qualifying managerial or executive capacity and the apP,eal will be dismissed. · · 
In visa petition proceedings, the burdenof proving elilibility for the b~nefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. 
1
§ 1361. The petitioner has not sustained that · 
burden. 
ORDER: The appeal is dismissed.