dismissed EB-1C Case: Management Consulting

identifying data delett::d to 
prevent clearly unw~ted 
invasion of personal pnvac)' 
PUBLlCCOPY 
DATE: JUL 0 2 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 " M S 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. § I I 53(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 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, 
PerryRhew 
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/general manager." 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § IIS3(b)(J)(C), as a 
multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated July 14, 2008 in which the 
beneficiary's position of general manager was said to involve project management, value-engineering, 
quantity surveying, path scheduling, and quality control. Additionally, the petitioner indicated that the 
beneficiary engages in management consulting, which would require the beneficiary to provide management 
services to clients as well as general management of company administration and promotion of the company 
in pursuit of potential clients. No further information or supporting evidence was provided. 
Upon review of the supporting statement, the director determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated April 30, 2009 informing the 
petitioner of various evidentiary deficiencies. Two of the issues that the director addressed in the RFE 
pertained to the beneficiary's foreign and U.S. employment. Specifically, the director determined that the 
record lacked evidence showing that the beneficiary was employed abroad and would be employed in the 
United States in a qualifying managerial or executive capacity. The director expressly instructed the 
petitioner to provide detailed organizational charts for the foreign entity that previously employed the 
beneficiary and for the U.S. entity where the beneficiary's proposed employment would take place. The 
charts were to include the beneficiary's position, illustrating who supervised whom, and employee names, job 
titles, and job descriptions. 
Although the record shows that the petItIOner responded with documents addressing other evidentiary 
deficiencies that the director pointed to in the RFE (which do not pertain to the grounds for denial), the 
petitioner did not provide any new information to establish that the beneficiary's employment with the foreign 
entity and his proposed employment with the U.S. entity fit the statutory criteria for managerial capacity, 
pursuant to section 101(a)(44)(A) of the Act, or executive capacity, pursuant to section 101(a)(44)(B) of the 
Act. Rather, counsel asked the director to review a statement dated June 29, 2006, which the petitioner 
previously submitted in support of an L-IA nonimmigrant petition and where the petitioner discussed the job 
duties and responsibilities of the beneficiary's positions of project manager and management consultant. It is 
noted that the job duties listed for the position of project manager are identical to those listed in the 
petitioner's July 14, 2008 statement (which was submitted in support of the instant Form 1-140), which 
described the beneficiary's proposed position of general manager. The AAO notes that neither the L-IA 
supporting statement nor the supporting statement provided with the instant Form 1-140 addressed the 
beneficiary's prior employment with the foreign entity. The AAO further notes that the petitioner failed to 
provide the requested organizational charts pertaining to the beneficiary's foreign and U.S. employers. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 103.2(b)(l4). 
Upon review of the limited evidence offered in response to the RFE, the director concluded that the petitioner 
failed to establish that the beneficiary was employed abroad or that he would be employed in the United 
Page 3 
States in a qualifying managerial or executive capacity. The director therefore issued a decision dated 
December 7, 2009 denying the petition. 
On appeal, counsel asserts that the director's decision was factually and legally incorrect, that the director 
misinterpreted the evidence, and that the director came to an erroneous adverse conclusion. Counsel asks the 
AAO to review an affidavit in which the beneficiary offers information addressing the grounds for denial. 
Counsel also indicates that an appellate brief and/or additional information would be forthcoming within 30 
days of the appeal. A review of the record indicates that no further evidence or information has been 
submitted to date. Therefore, the AAO will make a determination in this matter based on the evidence that is 
presently on record. 
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. 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(e) 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 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 finn, 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. 
The two primary issues to be addressed in this proceeding pertain to the beneficiary's employment capacity in 
his position with the foreign entity and 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 the beneficiary was employed abroad and whether he would be employed in the United States in 
a qualifying managerial or executive capacity. 
Page 4 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § IIOI(a)(44)(A), provides: 
The term "managerial capacity" means an assigrnnent within an organization m 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. § IIOl(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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. 
As a preliminary matter, the AAO concludes that the affidavit, which the beneficiary offers on appeal in an 
effort to establish that his positions with the foreign and U.S. employers fit the statutory definitions of 
managerial or executive capacity, will not be considered in this proceeding. The regulation states that the 
petitioner shaH submit additional evidence as the director, in his or her discretion, may deem necessary. The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. §§ I03.2(b)(8) and (12). 
As previously noted, failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. § I03.2(b)(l4). 
Page 5 
Where, as here, a petitioner was put on notice of a deficiency in the evidence and was given an opportunity to 
respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BrA 1988). If the 
petitioner had wanted the supplemental information to be considered, it should have submitted the evidence in 
response to the director's request for evidence. !d. Therefore, to the extent that the beneficiary addresses on 
appeal issues that should have been addressed previously in response to the RFE, the AAO need not and does 
not consider the sufficiency of the statements and information provided on appeal. 
Accordingly, in reviewing the evidence submitted by the petitioner prior to the appeal, the AAO finds that the 
record lacks relevant documents and information pertaining to the beneficiary's positions with the foreign and 
U.S. entities. It is noted that in examining the executive or managerial capacity of the beneficiary, the AAO 
will look first to the petitioner's description ofthe 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 gauge 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 petitioner failed to provide a description of the beneficiary's employment with the foreign entity and has 
provided no evidence of the foreign and U.S. entities' respective organizational hierarchies. Additionally, a 
review of the five job duties the beneficiary would carry out in his position with the U.S. entity indicates that 
the beneficiary would primarily perform tasks that are necessary to provide services that are offered by the 
petitioner to its clientele. While the AAO acknowledges that no beneficiary is required to allocate 100% of 
his time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary performed and would perform are only incidental to the position(s) in question. An employee 
who "primarily" performs the tasks necessary to produce a product or to provide services 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" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The petitioner has failed to establish that the beneficiary's position with the foreign entity and his proposed 
position with the U.S. entity consisted and would consist primarily of job duties within a qualifying 
managerial or executive capacity. Therefore, the AAO finds that the petition does not warrant approval and 
the director's decision will be affirmed. 
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.