dismissed EB-1C Case: Manufacturing

(b)(6)
DATE: 
MAY 0 7 t013 
INRE : Petitioner: 
Beneficiary: 
OFFICE: NEBRASKA SERVICE CENTER 
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 Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(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, 
;(~ 
'f-Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Utah Limited Liability Company (LLC) that seeks to employ the beneficiary in 
the United States as its formulations 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. § 1153(b)(1)(C), as a multinational executive or manager. 
In support of the Form I-140, counsel for the petitioner submitted a letter stating that the beneficiary 
created the formulations for the products which the petitioner intends to manufacture . The petitioner 
also submitted a variety of business related documents regarding the petitioner and the beneficiary's 
foreign employer. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant 
approval. On January 19, 2012, the director issued a request for evidence (RFE) informing the 
petitioner of various evidentiary deficiencies. The director requested additional evidence relating to 
the beneficiary's proposed employment with the U.S. petitioner and the previous foreign employer. 
Specifically, the director requested the beneficiary's job title, dates of employment, a statement 
regarding the beneficiary's supervisor, title and level of authority, and a detailed description of the 
beneficiary's day-to-day duties with the percentage of time allocated to each duty. The petitioner 
was also asked to provide detailed information regarding the beneficiary's subordinate employees in 
both entities, including their duties and their educational qualifications. 
In response to the RFE, the petitioner provided a letter from counsel dated April 11, 2012; the 
petitioner's minutes for a meeting held on January 5, 2011; the foreign employer's minutes for a 
meeting held on November 9, 2009; and a variety of documents relating to the petitioner's business. 
Both sets of meeting minutes contained brief descriptions of the beneficiary's duties. 
After considering the petitioner's response, the director determined that the petitioner failed to 
establish that the beneficiary had been employed by the foreign employer or would be employed by 
the petitioner in a qualifying managerial or executive capacity. Specifically, the director determined 
that the record did not establish that a majority of the beneficiary's duties have been or would be 
primarily managing an organization or supervising a staff that would relieve him of performing non­
qualifying duties. 
On appeal, counsel submits a letter and additional documents to further develop the beneficiary's 
duties with the foreign employer and the U.S. petitioner. The petitioner includes more detailed duty 
descriptions for the beneficiary with percentages of time allocated to general duties and additional 
evidence regarding the two companies and other employees. 
Counsel now requests further consideration of this petition in light of these new documents, on 
appeal. The petitioner failed to provide this information with the original petition or in response to 
the director's specific request for this particular information. Notably, regulations state that the 
petitioner shall submit additional evidence as the director, in his or her discretion, may deem 
(b)(6)
Page 3 
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.P.R. §§ 103.2(b)(8) and (12). The 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)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
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 (BIA 1988). If the petitioner had wanted the submitted evidence to be 
considered, it should have submitted the documents in response to the director's request for 
evidence. /d. Under the circumstances, the AAO need not and does not consider the sufficiency of 
the evidence submitted on appeal. 
In this matter, the petitioner provided documents that were partially responsive to the RFE therefore 
the petitioner's RFE response will be deemed a request for a decision on the record, and a decision 
will be issued on the basis of the record as it existed upon receipt of the timely filed RFE response in 
accordance with 8 C.P.R. § 103.2(b)(ll). The petitioner may not now request that USCIS consider 
evidence sought by, but not submitted in response to the RFE. Therefore, the AAO shall not 
consider the documentary evidence submitted with the Form I-290B and the petitioner's letter on 
appeal. 
The petitioner raised no additional issues on appeal, therefore the AAO will determine whether the 
director's decision to deny the petition was correct based on the record as supplemented by the 
petitioner's response to the RFE. As noted, the director determined that the petitioner failed to 
establish that the beneficiary's employment had been or would be within a qualifying managerial or 
executive capacity. 
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 su~paragraph, 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 
(b)(6)
Page4 
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 I-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. 
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 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; 
(b)(6)
Page 5 
(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 stockholder s of the organization. 
The director addressed the beneficiary's employment capacity in both his proposed position with the 
petitioning entity and his previous position with the foreign employer. The AAO gives primary 
consideration to the description of the beneficiary's previous and proposed position and duties, as a 
detailed description of the beneficiary's actual daily tasks tends to 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). The AAO also gives ample consideration to the job duties of the 
beneficiary ' s subordinate employees, the nature of the business, the employment and remuneration 
of employees, and any other facts that contribute to a comprehensive understanding of the 
beneficiary's actual role in a business. 
In the present matter, the AAO finds that the petitiOner has not established the beneficiary's 
qualifying employment in a managerial or executive capacity with the foreign employer. According 
to the petitioner's evidence submitted in support of the petition and in response to the RFE, the 
beneficiary was appointed Manager of Logistics and Projects on November 9, 2009 . In this position, 
the beneficiary was to "report to the Managing Director on all logistical requirements for each 
project and manage the same, ensuring that all materials and labour required for each project are 
forthcoming according to proposed budget constraints." In addition, he was to "continue to manage 
the Formulations department for the ' products ensuring the veracity and authenticity of 
each product. Have each product lab tested for its viability and practicality to clean; freshen; 
deodorise and sanitise . Oversee and supervise all staff, who are hired to assist in this area." 
This duty description for the beneficiary is inadequate to establish that he was employed in a 
qualifying managerial or executive capacity. The petitioner's description is merely a generalized 
summary of the beneficiary's responsibilities. No specific individualized duties or tasks were 
included leaving little idea of what the beneficiary actually did on a day-to-day basis. 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 daily job duties. The petitioner has 
failed to provide any detail or explanation of the beneficiary's activities in the course of his daily 
routine . The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Additionally, the petitioner indicated that the beneficiary was expected to ensure product testing and 
oversee all staff but it failed to submit any evidence to establish that the beneficiary actually had a 
staff to ensure he was free to primarily perform managerial and executive duties. Therefore it is 
unclear who relieved the beneficiary from performing all non-qualifying tasks in the absence of any 
employees. 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 Int'l., 19 I&N 
(b)(6)
Page 6 
Dec. 593, 604 (Comm'r 1988). Accordingly, the petitioner has not established that the beneficiary 
was employed in a primarily executive or managerial capacity with his foreign employer. 
Accordingly, the appeal will be dismissed. 
The AAO also concurs with the director's finding that the petitioner did not establish that it would 
employ the beneficiary in a qualifying managerial or executive capacity. The record indicates that 
the beneficiary was appointed Manager of Formulations and is expected to perform the following 
duties: 
Manage and supervise a team to formulate all products that the research and 
development department agree should be manufactured and released to the 
marketplace.; To report directly to the CEO; To hire and fire any of his team 
members as he sees fit; To hold regular team meetings which determine the best 
possible formulas and ingredients that can be used to make the products legitimate 
and authentic . To oversee the manufacturing of the formulations and to supervise the 
quality control of all such manufacturing. Where possible, see that all bottles; spray 
pumps; labels; ingredients etc are sourced from the USA. 
In addition to managerial type responsibilities, the beneficiary would have oversight of duties that 
clearly required staff such as manufacturing and quality control yet it is clear from the record that the 
beneficiary was also involved in the creation of the product. Therefore, given the record and 
response to the RFE the petitioner has not explained how much time the beneficiary would spend on 
managerial duties and how much time he would spend on non-qualifying duties. The petitioner 
failed to provide a detailed description of the beneficiary's duties sufficient to establish how the 
beneficiary would spend his time on a day-to-day basis. The actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Notwithstanding references to staffing, teams, and hiring and 
firing authority, the petitioner provided 
no evidence to establish that the company has any existing employees subordinate to the 
beneficiary. No payroll documentation was provided and no names were listed on the organizational 
chart to show who would perform duties in order to relieve the beneficiary from performing non­
qualifying tasks while employed with the petitioner. Furthermore, while the petitioner may intend to 
hire additional employees in the future, it has provided no documentation to establish that the 
beneficiary would be supervising or managing any individuals employed as of October 28, 2011, the 
time the petition was filed. A petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter 
of Katigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
Further, the petitioner has not established that the beneficiary, as "manager of formulations" with no 
subordinates, qualifies as a "function manager." 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. § 1101(a)(44)(A)(ii). The term "essential function" is not 
defined by statute or regulation. 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 
(b)(6)
Page 7 
performed in managing the essential function, 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. See 8 C.P.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 
"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 Intn'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
In this matter however, the petitioner has not provided evidence that the beneficiary manages an 
essential function. The AAO recognizes that other employees or contractors carry out the functions 
of the organization, even though those employees may not be directly under the function manager's 
supervision, but the petitioner is obligated to establish that the day-to-day non-managerial tasks of 
the function managed are performed by someone other than the beneficiary. The record as presently 
constituted does not establish who would perform non-qualifying duties associated with product 
formulations, such that the beneficiary would be free to perform primarily managerial duties 
associated with this function. 
Accordingly, the petitioner has not established that the beneficiary would be employed in a primarily 
executive or managerial capacity for the petitioner. For this additional reason the appeal will be 
dismissed. 
Beyond the decision of the director, the record does not contain sufficient evidence that the 
petitioner has been engaged in the regular, systematic, and continuous provision of goods and/or 
services in the United States for the entire year prior to filing the petition as required pursuant to 8 
C.P.R. § 204.5(j)(3)(i)(D). The regulation at 8 C.P.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." The 
petition in this matter was filed on October 28, 2011. The petitioner stated on the Form I-140 that 
the company was established on June 1, 2010 but no substantiating evidence was submitted. In fact, 
the petitioner's Articles of Organization were filed on January 5, 2011, the Internal Revenue Service 
(IRS) Employer Identification Number Notice was dated January 31, 2011, the petitioner's IRS 
Form 1120, U.S. Corporation Income Tax Return for 2011 reflects an incorporated date of January 
5, 2011, and all business licenses and documents are consistent with that timeframe. Therefore, the 
evidence in the petition does not establish that the petitioner was doing business for at least one year 
prior to the filing date of October 28, 2011. 
Furthermore, not only has the petitioner not been doing business for at least one year prior to filing 
the petition but it does not appear the petitioner has been doing business as defined above since its 
establishment in January 2011. The petitioner's IRS Form 1120 reflects minimal sales ($9,655) and 
operating expenses ($9,868) for 2011, and thus it is questionable whether the company was 
operational at the time the petition was filed in October 2011. For these additional reasons, the 
petition cannot be approved. 
(b)(6)
Page 8 
In addition, 
although not addressed by the director, the record contains insufficient evidence to 
establish that the petitioner maintains a qualifying relationship with the beneficiary's foreign 
employer. The regulation at 8 C.F.R. § 204.5(j)(2) states in pe1iinent part: "Multinational means 
that the qualifying entity, or its affiliate, or subsidiary, conducts business in two or more countries, 
one of which is the United States." A multinational executive or manager is one 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." Section 203(b)( l)(C) of the Act, 8 
U.S.C. § 1153(b)(l)(C). The foreign company that employed the beneficiary must continue to exist 
and have a qualifying relationship with the petitioner at the time the immigrant petition is filed. 8 
C.F.R. § 204.5(j)(3)(i)(C). 
In this matter, the petitioner 's evidence reflects that the foreign company employs only three 
individuals, including the beneficiary. These same three individuals are also identified as the U.S. 
petitioner's employees at the time the petition was filed, and users records reflect that the 
petitioner has filed immigrant petitions on behalf of all three of the foreign entity's employees. The 
petitioner has provided no evidence to establish who, if anyone, was working for the foreign 
company to keep it operational and there is no evidence in the record to establish that the foreign 
company was actually doing business at the time the petition was filed, such that it maintains the 
claimed qualifying relationship with the petitioner. For this additional reason, the petition cannot be 
approved . 
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. DOl, 381 F.3d 143, 145 (3d ,Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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.