dismissed EB-1C Case: Marketing

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 0 3 2009 
LIN 07 101 51954 
IN RE: 
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. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Uet-ry Rhew 
Chief, Administrative Appeals Office 
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 filed the Form 1-140 seeking to employ the beneficiary in the position of marketing director. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1 153(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition based on the finding that the petitioner failed to establish that the beneficiary 
would be employed in the United States in a managerial or executive capacity. On appeal, counsel disputes 
the director's conclusion, claiming that the director failed to properly assess the job description in its entirety. 
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 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)(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 primary issue in this proceeding is whether the beneficiary 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. 5 1 101(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. 5 1 10 l(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. 
In support of the Form 1-140, the petitioner submitted a letter dated January 26, 2007 from the beneficiary's 
foreign employer. The letter included the following list of job responsibilities that would be assigned to the 
beneficiary in her prospective U.S. employment: 
a. 
 Direct and manage research activities to identify potential candidates for the company 
client portfolio and analyze their financial background in order to assess their possible 
participation. 
b. 
 Responsible for the direction and management of the promotional activities associated 
with the "King Air" taxi and "El Fortin" dude ranch. 
c. 
 Coordinate Web based projects (i.e.[,] internet home page, promotional banners, mass 
mailing, web links) and support the interface to traditional advertising initiatives. 
d. Maintain the company's project database up-to-date and identify promotional 
applications (i.e.[,] newsletters, magazines, expos). 
e. 
 Support the Marketing Department with market tendencies and industry opportunities 
and single company evaluations. 
f. 
 Strengthen the company's public relations participation in the northeast region of 
Mexico . . . . 
g. 
 Contribute to the creation of the company's newsletter. 
On May 23, 2008, the director issued a request for additional evidence (WE) instructing the petitioner to 
provide a list of the specific job duties the beneficiary would perform during her U.S. employment and to 
assign a time constraint showing the percentage of time that would be allotted to each task on the list. The 
petitioner was also instructed to provide its organizational chart illustrating its organizational hierarchy at the 
time the Form 1-140 was filed. The petitioner was asked to include job descriptions for the beneficiary's 
direct supervisor and her subordinate employees. 
In response, the petitioner provided the official company job description for the beneficiary's proposed 
position, which was broken down into the following eight components: 
1. Lead the annual marketing business plan for [the petitioner] (10% DA). 
A. Create and implement short- and long-range goals, objectives, policies, and 
operating procedures for the overall company business plan (Grupo Amistad). 
B. Oversee the performance of business goals and establish contingency plans as 
needed. 
C. Serve on planning and policy-making committees. 
2. Direct and coordinate company sales and marketing functions (50% DA). 
A. Coordinate client visits . . . . 
B. Create specific information given to each client base[d] on requirements . . . . 
C. Update [the petitioner's] intranet with client information. 
D. Create promotional materials with [the] company's services . . . . 
E. Manage [the] company's website presence in search engines. 
F. Directly manage major and critical developing client accounts, and coordinate 
the management of all other accounts. 
G. Participate in the development of new project proposals. 
3. Develop and coordinate sales selling cycle (10% DA). 
A. Create reports on why [a] client decided for [sic] another location, why they 
chosen [sic] us, project timeframes, [and] letter[s] of recommendations after each 
closing. 
B. Provide market tendencies on Texas-Mexico locations. 
4. Direct and oversee the company marketing function to identify and develop new services 
for customers in real estate, construction or manufacturing (10% DA). 
A. Design and maintain website[s belonging to the petitioner.] 
B. Design and maintain websitels belonging to El Fortin Ranch]. 
C. Respond to inquiries from each website. 
D. Supervise the preparation, issuance, and delivery of sales materials, exhibits, and 
promotion programs. 
5. Research and develop strategies and plans which identify marketing opportunities, direct 
marketing, and new project development (5% DA). 
A. Send mass mailing packets with corporate information to prospective clients in 
[the] database. 
B. Obtain and Analyze financial background of future clients. 
C. Evaluate demographic data on each city location . . . . 
6. Analyze and evaluate the effectiveness of sales, methods, costs, and results (5% DA). 
A. Evaluate each magazine ad for results . . . . 
B. Coordinate Tradeshow leads and evaluate feasibility & potential. 
C. Analyze next year's events with Chambers of Commerce, Trade Commissions & 
conferences. 
7. Manage sales & marketing budgets---oversee the department's financial planning 
activities (5% DA). 
A. Coordination of spending with Accounting Department. 
B. Budget comparison-advertising, spending limits caps. 
C. Review Travel and expenses Reports made by subordinates. 
D. Recruit, train, and supervise new department staff. 
8. Support companies [sic] public relation[s] efforts (5% DA). 
A. Plan and coordinate public affairs and communication efforts with industry 
leaders. 
B. Support Community Outreach. 
C. Promote positive relations with partners, vendors, and distributors. 
The petitioner also provided its organizational chart, which depicted a four-tiered, seven-employee structure, 
including the company president at the top of the hierarchy, three vice presidents and the beneficiary as 
marketing director at the second tier of the hierarchy, and a marketing coordinator and facility maintenance 
employee in the third and fourth tiers, respectively, supervised by the beneficiary. 
In a decision dated October 20, 2008, the director denied the petition. The director listed a number of the 
tasks that comprised the eight general components of the petitioner's proposed position and found that only a 
small portion of the beneficiary's time would actually be spent performing tasks within a qualifying 
managerial or executive capacity. The director therefore concluded that the beneficiary would not be 
primarily employed in a qualifying capacity. 
On appeal, counsel for the petitioner asserts that the director's decision is erroneous, basing this contention on 
the fact that the director did not consider the more detailed explanations that were provided to clarify how the 
beneficiary would carry out each of the eight components the director included in his decision. Counsel's 
argument, however, is not persuasive, as it is almost entirely premised on the notion that the only portion of 
the job description that the director considered was the portion that he restated in the decision, which did not 
include the clarifications and specific tasks that described the eight components in greater detail. A careful 
reading of the director's discussion of the beneficiary's job description clearly shows that the director made 
specific references to a number of the underlying clarifications. In so doing, the director found that the 
petitioner provided sufficient information to establish that the primary portion of the beneficiary's proposed 
employment would consist of non-qualifying tasks. Counsel's assertion that the director failed to consider 
relevant facts simply because he chose not to repeat certain information is not persuasive, as there is no 
requirement that the director repeat, verbatim, all of the information that the petitioner provides. The director 
provided sufficient analysis of the record to adequately inform the petitioner of the precise basis for the 
denial. The AAO finds the director's reasoning and his use of discretion to be sound. 
As indicated in the director's decision, in examining the executive or managerial capacity of the beneficiary, 
U.S. Citizenship and Immigration Services (USCIS) will look first to the petitioner's description of the job 
duties. See 8 C.F.R. fj 204.5('j)(5). In the present matter, the petitioner stated that 50% of the beneficiary's 
time would be spent performing such tasks as coordinating client visits (which suggests a degree of 
involvement directly with the client), providing the client with information based on the client's specific 
requirements, updating the company's intranet, managing the petitioner's website presence, managing client 
accounts, and assisting with the development of project proposals. The petitioner also indicated that the 
beneficiary would provide other operational services, such as designing websites and engaging in marketing 
tasks. It is noted that 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 10 1 (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 above listed duties are necessary for providing important services, but duties nevertheless that are 
indicative of daily operational tasks. As these tasks would cumulatively consume more than 50% of the 
beneficiary's time, the director was right to conclude that the beneficiary would not be employed in a 
primarily managerial or executive capacity. 
Additionally, the AAO notes that the director expressly instructed the petitioner to include an organizational 
chart that reflects the petitioner's organizational hierarchy at the time of filing. The AAO further notes that 
the Form 1-140 indicates that the petitioner had four employees at the time of filing. However, this 
information is inconsistent with the organizational chart the petitioner provided in response to the RFE, where 
the petitioner identified a total of seven employees. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). As the petitioner did not provide 
sufficient evidence to establish exactly whom it employed at the time of filing, the AAO is unable to 
determine which positions were filled and whether the beneficiary actually had any subordinate employees at 
the time of filing to relieve her from having to primarily perform non-qualifying tasks. Thus, if the petitioner 
did not employ an adequate support staff, it is possible that the beneficiary may have had to perform even 
more non-qualifying tasks than the job description actually indicates. 
In summary, the petitioner has provided a job description that is indicative of an individual whose time would 
be primarily spent performing non-qualifying tasks. The petitioner has also provided an organizational chart 
that fails to accurately illustrate the petitioner's hierarchy at the time of filing and fails to establish that it was 
adequately staffed to employ the beneficiary in a qualifying capacity. Therefore, on the basis of these 
findings, this petition cannot be approved. 
Furthermore, while not specifically addressed in the director's decision, it is noted that 8 C.F.R. 
5 204.5Cj)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed abroad in a 
qualifying managerial or executive position for at least one out of the three years prior to her entry to the 
United States as a nonimmigrant to work for the same employer. In the instant matter, the director 
specifically addressed this issue in the RFE by instructing the petitioner to provide a detailed analysis of the 
beneficiary's daily activities during her employment abroad. In response, the petitioner provided a job 
description of the beneficiary's foreign employment that was identical to the description of the beneficiary's 
proposed employment. The AAO concurred in the director's finding that the description of the proposed 
employment is indicative of a position that would require the primary portion of the beneficiary's time to be 
spent performing non-qualifying tasks. For the same reason, the AAO concludes that the description 
provided for the beneficiary's foreign employment indicates that the primary portion of the beneficiary's time 
was spent performing non-qualifying tasks. Therefore, the petition cannot be approved on the basis of this 
additional ground. 
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), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(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. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd 345 F.3d 683. 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.