dismissed EB-1C Case: Management

Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
pUBLICCOPY 
DATE: 
MAY 2 7 2011 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration SelVices 
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. § 1 153(b)(l)(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. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
erry 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/manager. 
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. § l1S3(b)(1 )(C), as a 
multinational executive or manager. 
The director denied the petition based on three grounds of ineligibility: I) the petitioner failed to establish 
that the beneficiary was employed abroad in a qualifYing managerial or executive capacity; 2) the petitioner 
failed to establish that the beneficiary would be employed in the United States in a managerial or executive 
capacity; and 3) the petitioner failed to establish its ability to pay the beneficiary's proffered wage. 
On appeal, counsel disputes the director's decision, urging the AAO to focus on the beneficiary's role and 
function within the petitioner's organization rather than the size of its staff. Counsel also contends that the 
beneficiary was employed abroad in a qualifYing managerial capacity. As neither counsel nor the petitioner 
have disputed or addressed the director's adverse finding with regard to the petitioner's ability to pay, the 
AAO finds that the petitioner, in effect, concedes the third ground as a basis for denial. The two remaining 
grounds for denial as well as counsel's submissions on appeal will be addressed in a full discussion to follow. 
Section 203(b) ofthe 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)(I)(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 two remaining issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, 
the AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
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 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 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 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 ofthe organization. 
In support of the Form 1-140, no information was provided to describe the job duties involved in either the 
foreign or the U. S. position. 
Page 4 
Accordingly, on July 1, 2008, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide evidence of the beneficiary's foreign employment as well as a statement from the foreign 
entity listing the beneficiary's job duties and his subordinates as well as their respective position titles and job 
duties. The director also instructed the petitioner to provide a definitive statement from the U.S. employer 
listing all of the beneficiary's duties and subordinates as well as the subordinates' position titles and brief job 
descriptions. 
The petitioner's response included two letters-one from the vice president of the beneficiary's foreign 
employer regarding his employment abroad and another signed by the beneficiary in his capacity as the 
petitioner's president with regard to his employment with the U.S. entity. In the letter addressing the 
beneficiary's foreign employment, stated that the beneficiary served as the foreign entity's 
president and chief executive officer, who supervised the business. The letter indicated that the beneficiary's 
direct subordinates included two engineers, an accountant, and a treasurer. The letter briefly discussed the 
roles and responsibilities of the foreign entity's employees, but provided no further information about the job 
duties performed by the beneficiary. 
The letter that addressed the beneficiary's proposed employment also stated that the beneficiary's proposed 
position with the U.S. entity would be that of president, who would be responsible for business planning and 
implementation, making executive decisions, promoting the company's goals, and achieving target profits. 
The beneficiary further stated that a vice president, a secretary, and an accountant all report to him at the 
present time. 
On May 29,2009, the director issued a decision denying the petitioner's Form 1-140. The director determined 
that the job description the petitioner offered with regard to the beneficiary'S foreign employment was overly 
vague and therefore failed to establish that the beneficiary primarily performed managerial or executive tasks. 
With regard to the beneficiary'S proposed employment with the U.S. entity, the director noted that at the time 
the Form 1-140 was filed the petitioner claimed that its staff was comprised of a total of two employees. The 
director determined that the petitioner appears to have been insufficiently staffed at the time of filing to have 
had the capability to relieve the beneficiary from having to primarily perform non-qualifying tasks. 
On appeal, counsel asserts that the beneficiary fills the role of a function manager thus making the issue of 
whether the beneficiary manages other staff members irrelevant. Counsel asserts that the beneficiary is 
responsible for managing an essential function and describes the beneficiary'S position as one that involves 
managing the petitioning entity, training employees, reviewing financial statements and activity reports, 
keeping inventory records, and tracking orders. Counsel also states that the beneficiary is "responsible for the 
entire store team and sales in the store, including, [sic] customer service, merchandising, operations, and 
execution of store and company standards." Counsel contends that the job description that the director 
previously deemed as vague "clearly documents the beneficiary'S role." 
After reviewing the record and counsel's arguments on appeal, the AAO finds that the counsel has failed to 
overcome the grounds for denial. 
First, with regard to the beneficiary's employment abroad, the AAO notes that counsel has not effectively 
addressed the director's adverse finding. Although counsel generally states that the beneficiary was employed 
abroad in a qualifying managerial capacity, the record has not been supplemented with any information about 
the specific job duties the beneficiary performed during his employment abroad. Published case law supports 
Page 5 
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), affd, 905 F.2d 41 
(2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). Therefore, without the highly relevant information regarding 
the beneficiary'S job duties, the AAO cannot conclude that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. 
Next, with regard to the beneficiary'S proposed employment with the U.S. entity, the AAO finds that counsel's 
assertion that the beneficiary would serve as a function manager is unpersuasive. The AAO acknowledges 
that the term "function manager" applies generally when a beneficiary does not supervise or control the work 
of a subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 11 0 1 (a)(44)(A)(ii). If a petitioner claims 
that the beneficiary is managing an essential function, the petitioner must furnish a written job offer that 
clearly describes the duties to be performed, i.e., identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary'S daily duties attributed to managing the 
essential function. 8 C.F.R. § 204.5(j)(5). In addition, the petitioner's description of the beneficiary'S daily 
duties must demonstrate that the beneficiary manages the function rather than performs the duties related to 
the function. An employee who primarily performs the tasks necessary to produce a product or to provide 
services is not considered to be employed in 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 (Comm. 1988). 
In this matter, rather than specifically defining the beneficiary'S essential function, counsel provides a list of 
broad job responsibilities and business objectives. 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 job duties. 8 C.F.R. § 204.5(j)(5). As previously noted, published case law places great value 
on a definitive description of the job duties in order to determine whether the beneficiary would be employed 
in a qualifying capacity. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. Counsel's claims that the 
beneficiary "is responsible for the entire store team" and that the beneficiary would hire, direct, and develop 
the petitioner's sales team are entirely contrary to the general role of a function manager. While counsel is 
correct in stating that personnel management is not the function manager's concern, merely claiming that the 
beneficiary would serve as a function manager does not relieve the petitioner from having to address valid 
concerns regarding an overall lack in support staff. Here, the record simply lacks any evidence to support 
counsel's claim. The AAO notes that the unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
While counsel objects to the director's reference to staffing size in discussing the beneficiary'S employment 
capacity, 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. 
u.s. 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). Simply put, 
the petitioner cannot claim that the beneficiary would manage a function without providing adequate evidence 
to establish who within the petitioner's organizational hierarchy would perform the non-qualifying tasks that 
are related to that function. 
· .. 
Page 6 
In summary, the petitioner has failed to provide sufficient information about the key elements concerning the 
beneficiary's foreign and proposed employment Without this relevant information, the AAO cannot conclude 
that the beneficiary's employment abroad and the proposed employment with the U.S. entity can be deemed as 
being within a qualifying managerial or executive capacity. In addition, the petitioner has not shown that it 
could pay the beneficiary's proffered salary of $57,980 from its net income of $10,803 as stated on the 
petition. Based on these three grounds of ineligibility, the AAO cannot approve the instant petition. 
Further, while not previously addressed in the director's decision, the AAO finds that the petitioner has failed 
to meet the filing requirement discussed at 8 C.F.R. § 204.5(j)(3)(i)(C), which states that the petitioner must 
establish that it has a qualifying relationship with the beneficiary's foreign employer. Although the petitioner 
provided stock certificate no. 3 showing the foreign entity as majority owner of the petitioner's issued shares, 
the photocopied stock certificate appears to have been altered, thus detracting from the document's probative 
value.! As such, the AAO finds that the single altered stock certificate is not sufficient for the purpose of 
establishing that the beneficiary's foreign and U.S. employers have a qualifying relationship. 
The AAO also finds that the petitioner has not met the filing requirement discussed at 8 C.F.R. 
§ 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. § 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 reviewing the record, the AAO finds that the 
petitioner has not provided documentation to establish that the petitioner has engaged in on-going retail 
transactions for the requisite one-year time period commencing one year prior to the filing of the instant petition. 
Therefore, while this issue was also not addressed in the denial, the AAO finds that the petitioner is ineligible for 
the immigration benefit sought on this additional basis. 
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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(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. 
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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed. 
1 The line containing the month of the issued stock certificate appears to have altered as evident by a break in the line on 
which the month was printed.