dismissed EB-1C Case: Marketing

identifying data deleted to 
prevent clearly unwammted 
invasion of personal privacy 
t't11IL1C OWl 
U.S. Departmeot of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
SEP 03 2010 
IN RE: 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. § I 1 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. 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 $585. 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, 
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 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 managing director. 
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)(I )(C), as a 
multinational executive or manager. The director denied the petition based on the conclusion that the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusion and points to an error in the director's restatement of 
facts with regard to the number of employees the petitioner had at the time of filing. 
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 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 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. 
The primary issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization In which the 
employee primarily--
Page 3 
(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 IOI(a)(44)(B) of the Act, 8 U.S.C. § IlOl(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization 1ll 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 24, 2007, indicating that the 
beneficiary would be responsible for implementing the company's marketing plan through subordinates, 
identifying new business opportunities, developing new client business, and maintaining relationships with 
existing clients. The petitioner stated that in an effort to meet his business development responsibilities, the 
beneficiary would meet regularly with clients to promote the company's services. The beneficiary would also 
represent the petitioner at various functions and travel to and from the parent entity to report to the board of 
directors. 
On February 29, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, in part, supplemental information about the beneficiary's proposed employment. Specifically, the 
petitioner was asked to describe the beneficiary's day-to-day job duties and to provide an estimate of the 
percentage of time that would be allotted to each listed job duty. 
Page 4 
In response, the petitioner provided a supplemental list of duties and responsibilities for the beneficiary's 
proposed employment. As the director included the supplemental job description in his decision (excluding 
only the percentage breakdown) the AAO need not repeat this information in the present discussion. 
In a decision dated February 12,2009, the director denied the petition concluding that the petitioner failed to 
establish that the primary portion of the beneficiary's time would be allocated to qualifYing managerial- or 
executive-level tasks. The director concluded that the beneficiary would primarily perform non-qualifYing 
duties within the context of a four-employee entity. The director found that the job description the petitioner 
provided in response to the RFE lacked the necessary degree of detail and therefore failed to reveal the 
specific tasks that are necessary to determine whether the primary portion of the beneficiary's time would be 
spent within a qualifYing capacity. 
On appeal, counsel challenges the accuracy of the director's statements, pointing out that the petitioner 
indicated that it was comprised of six employees, not four employees as was stated in the director's decision. 
Counsel also contends that the petitioner provided a detailed job description in accordance with the director's 
instructions in the RFE. 
After examining the record in its entirety, the AAO concludes that, regardless of the director's misstatement 
regarding the petitioner's claimed number of employees, the petitioner nevertheless failed to overcome the 
director's adverse conclusion. While the AAO acknowledges that the petitioner claimed to have six (rather 
than four) employees at the time of filing, the petitioner's mere claim regarding its staffing size does not 
establish this information as factually accurate. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). In the present matter, while the director admittedly did not restate certain information as it was 
presented by the petitioner, the AAO cannot assume the factual accuracy ofthe petitioner's statements without 
supporting evidence, which is absent from the current record of proceeding. 
The AAO further points out that a petitioner's personnel size is a factor that can and should be considered in 
determining a petitioner's ability to relieve the beneficiary from having to primarily perform non-qualifYing 
tasks. Published case law indicates that federal courts recognize the significance of a company's staffing, as 
they have generally agreed that U.S. Citizenship and Immigration Services (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. Us. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) 
(citing with approval Republic of Transkei 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). As such, a petitioner may be expected to provide more than a brief description of its 
organizational hierarchy in establishing its ability to employ the beneficiary in a primarily managerial or 
executive capacity. Supplemental information is particularly critical when the petitioner has a limited support 
staff. While a limited support staff may not preclude a petitioner's need or ability to employ the beneficiary 
within a qualifYing capacity, the petitioner should explain how its particular organizational structure at the 
time of filing would accommodate the beneficiary and enable him or her to primarily perform tasks that are 
managerial or executive. 
Page 5 
Furthennore, the AAO notes that in examining the executive or managerial capacity of the beneficiary, 
USCIS will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5G)(5). As 
previously explained, while various factors are considered in detennining the likelihood that the beneficiary's 
proposed position would be within a qualifying managerial or executive capacity, a detailed description of the 
proposed daily tasks is among the key determining factors. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient. The actual duties themselves will 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). In the present matter, the beneficiary's proposed job description is overly 
vague and therefore provides little insight as to the specific tasks the beneficiary would perfonn within the 
context of the petitioner's given organizational structure. For instance, the petitioner stated that the 
beneficiary would allocate 5% of his time to controlling the company's cash flow, 2% to participating in the 
company's development, 10% to developing "good service to referred clients," 10% to keeping up-to-date on 
global market circumstances and economic climate in relation to the petitioner's investment portfolios, 15% to 
managing the company's investments, and 5% to maintaining an "adequate company structure according to 
the law." However, the petitioner failed to explain what specific daily tasks the petitioner would perfonn in 
order to meet these broad job responsibilities. In other words, how does the beneficiary manage the 
company's investment portfolio? Does he conduct research and select the investments on the basis of his 
findings? If so, this would be more akin to an operational task that is necessary to produce a product or to 
provide services and thus would not be considered a qualifying managerial or executive task. The petitioner 
was similarly vague in discussing the remainder of the above-mentioned job responsibilities in that none 
convey a meaningful understanding of specific underlying tasks. 
Additionally, the petitioner indicated that the beneficiary would perfonn various non-qualifying customer­
related tasks, including presenting balance sheets to the board of directors, negotiating terms and conditions 
of margin accounts, and developing new business opportunities, which would cumulatively comprise 35% of 
the beneficiary's time in addition to the 47% that would be attributed to undefined tasks associated with the 
job responsibilities listed above. It is noted that an employee who "primarily" perfonns 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 I (a)( 44)(A) and (B) of the Act (requiring that one "primarily" perfonn the 
enumerated managerial or executive duties); see also Matter of Church SCientology International, 19 I&N 
Dec. 593, 604 (Comm. 1988). When, as in the present matter, the petitioner fails to present a detailed 
description of the proposed employment in tenns of specific daily tasks, USCIS cannot detennine whether 
such employment would be primarily comprised of tasks within a qualifying managerial or executive 
capacity. As the AAO cannot conclude that the beneficiary would allocate the primary portion of his time to 
perfonning managerial- or executive-level tasks, the instant petition cannot be approved. 
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.