dismissed EB-1C Case: Management

identifying data deleted to 
prevent cle:Jl'iy UnWaiTanrc'( 
mvasion of personal privac) 
PUBLlCCOPY 
DATE: 
JUL I 3 2012 
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 
OFFICE: TEXAS SERVICE CENTER 
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. § lI53(b)(I)(C) 
ON BEHALF OF PETITIONER: 
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 case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I·290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its president and general 
manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(I )(e) of the Immigration and Nationality Act (the Act), 8 US.c. 
§ 1153(b)(I )(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated February 17, 2011, which contained 
relevant information pertaining to the petitioner's eligibility, including an overview of the petitioner's 
business, the business of its foreign parent entity, and descriptions of the beneficiary's foreign and proposed 
employment. The petitioner also provided supporting evidence in the form of financial and corporate 
documents pertaining to the beneficiary's US. and foreign employers. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated July 12, 20 II informing the 
petitioner of various evidentiary deficiencies, including a lack of evidence showing that the beneficiary would 
be employed in the United States in a qualifying managerial or executive capacity. The director instructed the 
petitioner to provide a definitive statement describing the beneficiary's proposed job duties. The petitioner 
was asked to list the beneficiary's specific job duties and to assign a time constraint showing the portion of 
time that would be allocated to each task. The petitioner was also asked to provide the job titles, job duties, 
and educational levels of the beneficiary's subordinates and to submit an organizational chart illustrating the 
petitioner's organizational hierarchy and the departments, teams, and employees that comprise that hierarchy. 
The petitioner provided a responding statement dated August 8, 2011, which contains a description of the 
beneficiary's proposed employment as well as a list of the petitioner's employees and their respective job 
titles and job descriptions. The petitioner also provided the request organizational chart, which depicts the 
beneficiary's proposed position in relation to the other employees that comprise the staff of the US. entity. 
After reviewing the record, the director concluded that the petitioner failed to establish that the petitioner 
would employ the beneficiary in a qualifying managerial or executive capacity. The director therefore issued 
a decision dated March 21,2012 denying the petition. The director restated portions of the job description the 
petitioner provided in response to the RFE and found that the description was overly broad and generally 
lacked specific details about the beneficiary's daily activities. 
On appeal, counsel submits a brief statement disputing the director's finding and asserting that the director 
improperly relied on the petitioner's small size in issuing the adverse decision. Although counsel indicated 
that a brief and/or additional evidence would be forthcoming after the filing of the Form I-290B, the record 
does not show that the record has been supplemented with any documents beyond the appeal form itself. The 
record is deemed complete as presently constituted. 
The AAO finds that counsel's arguments are not persuasive and fail to overcome the director's denial. The 
discussion below will provide an analysis of the relevant documentation and will explain the underlying 
reasoning for the AAO's decision. 
Page 3 
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 I year by a fum 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 )(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. 
The primary issue to be addressed in this proceeding is the benefIciary's employment capacity in his proposed 
position with the petitioning U.S. entity. SpecifIcally, the AAO will examine the record to determine whether 
the petitioner submitted sufficient evidence to establish that it would employ the benefIciary in the United 
States in a qualifying managerial or executive capacity. 
Section IOI(a)(44)(A) ofthe Act, 8 U.S.C. § I 10\ (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III 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 ifno other employee 
Page 4 
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. § I 10 I (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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 exammmg the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO also finds that it is appropriate 
and often necessary to consider other relevant factors, such as the petitioner's organizational hierarchy, which 
shows the complexity of a given entity and the beneficiary'S placement in relation to other employees, as well 
as the petitioner's overall staffing, which allows the AAO to assess the extent to which the petitioner is able to 
relieve the beneficiary from having to focus the primary portion of his time on the performance of non­
qualifying operational tasks. 
The AAO finds that counsel's assertion that the director discriminated against the petitioner based on its small 
size is unfounded. Federal courts have generally agreed that USCIS "may properly consider an organization's 
small size as one factor in assessing whether its operations are substantial enough to support a manager." 
Family, Inc. v. Us. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with 
approval Republic ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 
41,42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003). 
The implication that the director should omit the petitioner's hierarchy and staffing from his analysis is not 
justified; only by considering this information in light of the description of the proposed employment can the 
director gain a comprehensive understanding of the managerial or executive capacity of a given position. 
Certainly, where an entity has limited staffing its ability to relieve the beneficiary from having to primarily 
perform non-qualifying tasks is less apparent than in the case of an entity with a large staff and multiple tiers 
of personnel. An eligible petitioner can establish eligibility, however, regardless of its size, by providing a 
detailed description of the beneficiary's job duties, supported by documentary evidence, and a comprehensive 
Page S 
explanation specifying how the beneficiary would be relieved from having to primarily perform non­
qualifying tasks within the scope of the existing staffing and organizational hierarchy. 
The record lacks a detailed description of the beneficiary's proposed employment. Despite the petitioner's 
submission of a supplemental job description in the response to the RFE, the petitioner failed to provide the 
requested information, i.e., a list of the beneficiary's specific job duties and the percentage of time that would 
be allocated to each individual task. Instead, the petitioner paraphrased the statutory provisions by broadly 
stating that the beneficiary would plan, develop, and establish corporate policies, goals, and objectives, 
oversee the company's activities, and make critical decisions regarding legal, financial, and personnel 
matters. Other than conveying a sense of the beneficiary's discretionary authority, which is inherent to any 
manager or executive at the top of an organization's staffmg hierarchy, the petitioner failed to cite the 
beneficiary's specific daily tasks. 
In general, it can be said that the goal of any president or manager of an entity is to make policy and direct 
operations. It stands to reason, however, that the specific tasks of an entity's president or general manager 
would vary, depending on the type of business the entity conducts and the particular organizational hierarchy 
of the entity in question. Here, the petitioner failed to explain what policies the beneficiary would formulate 
or what specific actions he would carry out in presiding over and managing operations within the scope of the 
petitioner's business of purchasing and selling cars and motorcycles and selling and repairing boats and 
yachts. Published case law clearly supports the pivotal role of a clearly defined job description, as the actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), afJ'd, 90S F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.S(j)(S). Failing to 
adequately describe the proposed employment precludes the AAO from being able to determine whether the 
position in question is one that is within a managerial or executive capacity. 
Additionally, the petitioner fails to explain how, with a limited organizational hierarchy comprised of five 
employees, the beneficiary would be relieved from having to allocate his time primarily to non-qualifying 
tasks while presiding over and managing the petitioner's various business interests. The AAO finds that the 
petitioner has failed to provide information sufficient to convey a meaningful understanding of the 
beneficiary'S specific job duties within the scope of the petitioner's business operations. Therefore, the 
instant petition cannot be approved. 
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. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.