dismissed EB-1C Case: Manufacturing

identifying data deleted to 
prev~nt clearly unwarranted 
lDYaSJOIl of personal privacy 
PUBLIC COpy 
-- -. - - '" 
u.s. DepartmeDt 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 
DATE: MAY 0 5 20" OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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. § 1153(b)(1)(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 1-290B, 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, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter later came before the Administrative Appeals Office (AAO) on appeal, which was summarily 
dismissed. The matter is now before the AAO on a motion to reopen and reconsider, which is accompanied 
by supporting evidence. The motion will be granted and a full decision will be issued on the merits of the 
documentation in the record. However, the AAO will affirm the director's decision and its own subsequent 
decision dismissing the appeal. 
The petitioner is a California corporation that seeks to employ the beneficiary as its chief executive officer. 
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. § 1153(b)(1)(C), as a 
multinational executive or manager. 
The director denied the petition based on two grounds: 1) the petitioner failed to provide sufficient evidence 
to establish that the beneficiary was employed abroad in a qualifYing managerial or executive capacity; and 
2) the petitioner failed to establish that the beneficiary would be employed in the United States in a 
managerial or executive capacity. On appeal, counsel disputed the director's decision. 
The record at the time of the appeal indicated that a supporting appellate brief was not submitted and that a 
summary dismissal was warranted based on the determination that the petitioner failed to point to an error in 
the application of law or a statement of fact. 
On motion, counsel submits sufficient evidence to establish that an appellate brief was in fact submitted and 
that the brief warrants a full decision addressing counsel's arguments. 
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)(1 )(C) of the Act as a multinational executive or manager. No labor certification is required for this 
- . 
Page 3 
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 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 IOI(a)(44)(A) of the Act, 8 U.S.C. § 110l(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. § 1101(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. 
Page 4 
In support of the Form 1-140, the petitioner submitted a letter, dated December 15, 2006, from counsel, who 
stated that the beneficiary's job responsibilities abroad included coordinating marketing strategies, 
communicating with prospective clients, supervising quality control, overseeing sales and production, 
managing employees, and making administrative, marketing, and financial decisions. In addressing the 
beneficiary's prospective employment with the petitioner, counsel stated that the beneficiary would be 
responsible for directing the strategy of the petitioning organization, seeking out new accounts, managing 
sales agreements, maintaining the petitioner's financial solvency, and making all administrative, financial, 
marketing, sales, and personnel decisions. No further information was provided with regard to the 
beneficiary'S employment either with the foreign entity or with the U.S. petitioner. 
Accordingly, in an attempt to elicit relevant information regarding the beneficiary'S employment capacity in 
his respective positions with the foreign and U.S. entities, the director issued a request for additional evidence 
(RFE) dated August 25, 2007. The petitioner was instructed to provide a detailed letter from an authorized 
official of the petitioning entity describing of the specific job duties the beneficiary performed during his 
employment with the foreign entity and the specific job duties he would perform in his prospective position 
with the U.S. entity. The petitioner was also asked to provide organizational charts illustrating the 
beneficiary'S position in each company. 
The petitioner's response included a letter dated September 21,2007 from in his capacity as 
director of the foreign entity. _tated that the beneficiary planned, developed, and administered 
company policies by making~ expand the manufacturing and wholesale business to include 
exports and retail and to train employees on the basis of feedback from managers and supervisors, making 
personnel decisions, preparing a training outline for new employees, guiding managers regarding registration 
of new vendors, making pricing policies, and devising methods for controlling the quality of incoming raw 
material, work in progress, and finished goods. _ stated that the beneficiary'S responsibilities also 
included reviewing costs and sales and taking corrective actions such as hiring additional advertising and 
marketing personnel or devising means to decrease costs and increase productivity in an effort to meet set 
goals; exploring expansion opportunities including forming alliances with large retailers; and managing 
contract negotiations with vendors and large customers. 
With regard to the beneficiary'S proposed employment, the petitioner provided a letter dated September 25, 
2007 from in his capacity as the petitioner's general manager. _ stated that he 
implements the goals and policies that are created by the beneficiary, whose role is to oversee and supervise 
the general manager. He explained that the petitioner's in-house staff includes a production and design 
manager, an assistant manager of sales and marketing, a sales supervisor, and four general staff members 
while the advertising and accounting functions are contracted out to third party agencies. _ stated 
that the beneficiary sets long-term goals, reviews progress, sets departmental policies, establishes ties with 
large customers, supervises and trains managers, formulates strategies for contract negotiation, develops 
criteria for training staff, forecasts staffing requirements, hires and fires employees, and sets purchasing 
standards. also provided examples of the discretionary decisions the beneficiary has made, 
including deciding to seek out business from large corporations like Target, Sears, Wal-Mart, etc., and to 
forge business relationships with 1-800 Flowers and Teleflora. The beneficiary also manages inventory and 
quality control, and keeps himself informed of global and local market trends as well as customers' buying 
habits, which led him to respond to customer demands for recycled brass in India. 
- , 
Page 5 
The petitioner's response also included letters from the executives of various supplier companies that do 
business with the petitioner. A letter from the vice president of RDP Floral, Inc., dated September 30, 2006, 
indicates that the beneficiary negotiates prices and addresses issues concerning product quality and quantity 
(depending on seasonal needs), as well as packaging and shipping the products being purchased. Letters from 
two other supplier companies similarly indicate that the beneficiary deals with matters concerning rate 
negotiations and shipping of the products the petitioner purchases. 
Lastly, the response includes the foreign entity's and the petitioner's organizational charts. The foreign 
entity's chart depicts the beneficiary at the top of a three-tiered hierarchy, followed by the director of 
marketing and the director of finance as the two direct subordinates. The remainder of the staff at the lowest 
tier included a branch manager, two accountants, a sales person, and an office assistant. 
With regard to the U.S. entity's organization, the petitioner depicted the beneficiary at the top of the hierarchy 
overseeing two separate store locations, each of which is staffed with a manager, who oversees a sales 
supervisor and a production and design supervisor, followed by sales clerks, who are subordinate to the sales 
supervisor, designers, who are subordinate to the production and design supervisor, and drivers, who were 
depicted at the same level within the hierarchy as the sales and design staff, but whose direct superior was not 
clearly depicted. 
On April 2, 2009, the director denied the petition, concluding that the petitioner failed to establish that the 
beneficiary was employed abroad or that he would be employed by the U.S. entity in a qualifying managerial 
or executive capacity. The director found that the description of the beneficiary's foreign employment was 
overly vague and did not specify the beneficiary's specific job duties or the amount of time allocated to his 
daily tasks. With regard to the beneficiary's proposed employment, the director found that the letters from 
companies with whom the petitioner does business indicate that the beneficiary performs numerous non­
qualifying tasks, including ordering inventory and supplies, negotiating prices, controlling the quantity and 
quality of orders, and conducting inventory checks and analysis. Based on this finding, the director 
concluded that the beneficiary would not primarily perform tasks within a managerial or executive capacity. 
On appeal, counsel provides a brief asserting that the petitioner is adequately staffed with supervisory 
employees who report directly to the beneficiary. Counsel states that the beneficiary makes all executive 
decisions for both the foreign and U.S. entities and meets the statutory criteria for executive capacity. 
Counsel also contends that the beneficiary's role as price negotiator establishes that the beneficiary makes 
executive decisions which cannot be delegated to any line employees. Lastly, counsel points out that the 
petitioner's growth of 150% would not have been possible if the beneficiary was "merely taking orders and 
performing day to day tasks" for the petitioning entity. 
The AAO finds that counsel's assertions are not persuasive in overcoming the two grounds for denial. Despite 
counsel's emphasis on the beneficiary'S absolute discretionary authority and his placement within the 
hierarchies of the foreign and petitioning entities, these factors alone do not establish whether either position 
can be deemed as one within a managerial or executive capacity. The actual duties themselves must be 
examined in order to determine the true nature of the employment. See 8 C.F.R. § 204.5(j)(5); see also Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Page 6 
In the present matter, the information provided with regard to the beneficiary's job duties in his proposed 
position simply does not establish that the primary portion of the beneficiary's time would be allocated to 
performing qualifying tasks in a managerial or executive capacity. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, it is the petitioner's burden to establish that the non-qualifying tasks the beneficiary 
would perform are only incidental to his/her proposed position. 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). Here, while the statements that describe the 
beneficiary's foreign and proposed employment adequately depict the beneficiary at the top of the respective 
hierarchies with unlimited discretionary authority, neither of the submitted job descriptions establishes that 
the primary portion of the beneficiary's time abroad and in the United States was or would be allocated to 
performing managerial- or executive-level tasks. 
With regard to the employment abroad, the job description provided by _focuses broadly on the 
beneficiary's authority, generally stating that the beneficiary planned and developed numerous policies. 
However, the job description did not adequately convey a meaningful understanding of the specific tasks the 
beneficiary performed in order to meet these broad policy-making responsibilities. Furthermore, the 
statements indicating that the beneficiary took an active role in seeking out and forging business relationships 
in order to expand the foreign entity's operation su~e beneficiary was, to some extent, performing 
some of the underlying non-qualifying job duties. ~ also indicated that the beneficiary negotiated 
contracts with vendors and customers, which further establishes that the beneficiary was performing non­
qualifying tasks that are required to provide services. 
The job description included in response to the RFE similarly lacks an account of the 
beneficiary'S specific job duties in his proposed position. Instead, the job only a broad 
overview of the beneficiary'S general decision-making responsibilities. While statements are 
sufficient to establish that the beneficiary serves an integral part in ensuring the petitioner's successful 
operation, they do not establish that the beneficiary would primarily perform qualifying managerial- or 
executive-level tasks. Moreover, the tasks that are specifically mentioned in the letters submitted by the 
petitioner's business associates indicate that the beneficiary performed certain non-qualifying tasks. As 
indicated above, the burden is on the petitioner to provide sufficient documentation to establish that those 
non-qualifying tasks do not comprise the primary portion of the proposed employment. See Matter of 
Brantigan, 11 I&N Dec. 493 (BIA 1966). Here, the petitioner has not met this burden either with regard to 
the beneficiary'S proposed employment with the U.S. entity or with regard to his prior employment with the 
foreign entity. Therefore, on the basis ofthese two adverse findings, USCIS cannot approve this petition. 
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 motion is dismissed.