dismissed EB-1C Case: Marketing

(b)(6)
U.S. Department of Homeland Security 
U. S. Citiz enship and Immigration Service: 
Administrati ve Appeal s Office (AAO) 
20 Massachus etts Ave. N.W., MS 2090 
Washingt on, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAY 0 7 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE : 
PETITION: 
Petitioner: 
Beneficiary : 
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)(l )(C) 
ON BEHALF OF PETITION ER: 
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, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The preference vtsa petttlon 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 Delaware corporation that seeks to employ the beneficiary in the United States in the 
position of head of international marketing. 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. § 1153(b)(l)(C), as a multinational executive or manager. 
In support of the Form l-140 the petitioner submitted a statement dated May 6, 2011, which contained 
relevant information pertaining to the beneficiary's proposed employment with the petitioning entity. The 
petitioner also submitted evidence in the form of its organizational chart, tax documents, and a number of 
corporate documents as well as corporate and business documents pertaining to the foreign entity. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) dated December 20, 20 II informing the petitioner 
of various evidentiary deficiencies. The RFE included requests for more detailed statements describing the 
beneficiary's foreign and proposed employment, organizational charts depicting each entity and the 
beneficiary's position therein, and the names, qualifications and job descriptions of the beneficiary's 
subordinates in each of her respective positions. With regard to the beneficiary's job description, the director 
asked the petitioner to elaborate on the previously submitted discussion of the beneficiary's job 
responsibilities by providing a list of the beneficiary's tasks accompanied by an estimate of the amount of 
time the beneficiary allocated to each task in her position with the foreign entity and the amount of time she 
would allocate to each of the assigned tasks in her proposed position with the U.S. entity. 
In response, the petitioner provided supplemental job descriptions pertaining to the beneficiary's respective 
positions with the foreign employer and the U.S. petitioner as well as two organizational charts-one chart 
titled "U.S. Organization Chart" and the other titled "UK Organisation Chart." Although the petitioner was 
also asked to provide job descriptions and position qualifications for the beneficiary's subordinates at each of 
her respective positions, the petitioner's RFE response does not include this information. Rather, the 
petitioner supplemented the record with brief job descriptions and lists of professional achievements of 
employees deemed to be "key executives" none of whom were listed as the beneficiary's subordinates. 
Additionally, the AAO notes that the organizational chart that pertains to the foreign entity does not name the 
beneficiary in her claimed position as head of international marketing, the position the petitioner claims was 
held by the beneficiary from May 2005 through December 2008. Thus, in effect, the petitioner did not 
comply with the director's request for the foreign entity's organizational chart, as the UK chart the petitioner 
submitted did not include the beneficiary. 
After considering the petitioner's response, the director determined that the petitioner failed to meet relevant 
eligibility criteria and therefore denied the petition in a decision dated May 15, 2012. With regard to the 
beneficiary's employment abroad, the director noted that the beneficiary claimed to have held the position of 
head of international marketing from October 2002 through December 2008, which is inconsistent with the 
petitioner's claim that the beneficiary initially occupied the position of marketing manager prior to being 
promoted to the position of head of international marketing in 2005. 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). 
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The director further noted the deficiency in the foreign entity's organizational chart in failing to specifically 
name the individual who occupied or occupies the position of head of international marketing, thus making it 
unclear whether the submitted chart was meant to serve as an illustration of the foreign entity's organizational 
hierarchy during the time of the beneficiary's employment abroad. 
With regard to the beneficiary's proposed employment with the U.S. entity, the director noted the petitioner 's 
failure to provide job descriptions for the beneficiary's subordinates and flilther observed that the petitioning 
organization "reflects a minimal number of employees associated with marketing related position titles." The 
director therefore concluded that the petitioner failed to establish that the beneficiary would oversee the work 
of professional or supervisory employees or that the beneficiary would otherwise be relieved from having to 
allocate her time primarily to the performance of non-qualifying tasks. The director also found the petitioner's 
organizational chart to be a confusing mix of employees, as many of the named individuals were found to be 
employees of the foreign entity. Finally, the director was unclear as to the type of qualifying relationship the 
petitioner purports to have with the foreign entity . 
On appeal, counsel provides a brief asserting that the director's key adverse findings were erroneou s. With 
regard to the latter finding concerning the petitioner's qualifying relationship , the AAO finds that adequate 
documentation has been submitted-including tax returns, various corporate documents, and the foreign 
entity's audited financial report-to establish that the petitioner is a wholly owned subsidiary of the foreign 
entity where the beneficiary was previously employed. As such, this proceeding will address only two of the 
director's three adverse finding - the beneficiary's employment capacity in her position with the foreign 
entity her employment capacity in the proposed position with the petitioner. With regard to these issues , a 
comprehensive discussion of the relevant evidence will be provided below. 
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 
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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 10l(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 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 sup ervised are 
professional. 
Section 10l(a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B), provides: 
The tenn "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 organi zation. 
In general, when examining the executive or managerial capacity of the beneficiary , the AAO review s the 
totality of the record, starting first with the petitioner's description of the beneficiary's job duties. See 8 C. F. R. 
§ 204.5(j)(5) . A detailed job description is crucial, as the duties themselves will reveal the true nature of the 
beneficiary's foreign and proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. II 03, II 08 
(E.D .N.Y. 1989) , affd, 905 F.2d 41 (2d. Cir. 1990) . The AAO will then consider this information in ligl~t of 
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other relevant factors, including (but not limited to) job descriptions of the beneficiary's subordinate 
employees, the nature of the business conducted by the entities in question, the size of the subordinate staff of 
the foreign and U.S. entities, and any other facts that may contribute to a comprehensive understanding of the 
beneficiary's actual role s in the position she occupied while employed abroad and the position she would 
occupy with the petitioning entity. 
Looking first to the beneficiary's position abroad , the petitioner has failed to clarify the beneficiary's actual 
placement within the foreign entity's organizational hierarchy during her period of employment. Although a 
detailed organizational chart was submitted for the foreign entity, the chart was undated and did not include 
the beneficiary among the listed employees. Despite the claim that the beneficiary occupied the position of 
head of international marketing during some portion of her employment abroad, it is unclear whether the chart 
provided is an accurate representation of the foreign entity during the relevant time period of the beneficiary 's 
employment. In fact , after considering the foreign organizational chart in light of the information provided in 
the U.S. organizational chart , it appears that the foreign chart depicts the foreign entit y's current 
organizational hierarchy . The AAO further notes that while the U.S. organizational chart show s two 
individuals-a marketing manager and a film division assistant-working in the international mark eting 
department under the dep artment head, the foreign entity's organizational chart shows the marketing man age r 
and the head of intern ational marketing as the only two individuals associated with the internation al 
marketing department. 
Additionally, the record indicates that the petitioner failed to provide a job description pertammg to the 
beneficiary's employment with the foreign entity. The AAO notes that the instructions in the RFE expressly 
stated: "For each position you must submit . . .. " It was therefore made clear to the petitioner that the 
instructions for a more det ailed description of job duties did not apply only to the beneficiary's propo sed 
employment, but rather were intended for the beneficiary's foreign employment as well. Thus , pro viding a 
job description that addresses only the proposed position is not sufficient and does not fully address the 
director's request. Despit e the fact that the petitioner made repeated references to the duties the benefi ciary 
has performed and would perform, to include the past tense, it is apparent that the past tense reference was 
made for the purpose of indicating that the beneficiary's position with the U.S. entity has remained , for the 
better part, unchanged · since she assumed the position under a nonimmigrant visa classification. All 
references to the benefic iary's communication with the U .K. company indicate that such communication is 
done as part of her current position with the U.S. entity. Thus, the petitioner has failed to provide either a 
sufficient job description discussing the beneficiary's employment with the foreign entity or an organizational 
chart depicting the foreign entity ' s staffing hierarchy during the beneficiary's employment abroad as head of 
international marketing . Fa ilure 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). Without the reque sted evidence pertaining to 
the foreign entity and the beneficiary's position therein, the petitioner has not established that the benefici ary 
was employed abroad in a qualifying managerial or executive capacity. On the basis of this initial finding the 
instant petition must be denied. 
Turning to the beneficiary 's proposed position , the AAO will look first to the propo sed job description that 
was provided in a February 3, 2012 statement from the petitioner's executive vice president , 
who indicated that 50% of the beneficiary's job would be allocated to managing and directing marketing 
activities by spending approximately two hours per day communicating with the U.S. sales team, one to two 
hours communicating with the U.K. sales team via telephone or skype , and another one to two hours 
managing and directing the US. marketing and sales personnel and resolving on-going issues. Based on the 
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petitioner's organizational chart as submitted in response to the RFE, it appears that the beneficiary's direct 
sales subordinate is a sales executive, whose job description and educational credentials have not been 
provided, thus precluding the AAO from determining that the beneficiary's direct sales subordinate is a 
supervisory or professional employee. Although the chart also lists a number of other sales positions , 
including an executive vice president of sales, vice president of sales of Latin America and Asia , and a head 
of sales, none of these individuals is shown to be under the beneficiary's direct supervisory control. 
Additionally, it is not clear that the tasks associated with the beneficiary's responsibility to grow and develop 
international markets are tasks within a qualifying managerial or executive capacity. The petitioner has not 
shown that negotiating and communicating with international distribution channels regarding film distribution 
and meeting with distributors, producers, journalists, and outside marketing personnel to achieve growth and 
development of international markets can be deemed as qualifying tasks. Rather, these are more indicative of 
tasks that are necessary to provide marketing services and thus would not be tasks in a qualifying managerial 
or executive capacity. 
With regard to the beneficiary's responsibility to direct acttvttJes involving the development and 
implementation of marketing and promotional programs, the AAO is unclear as to the beneficiary's actual 
role with regard to updating networking websites, creating promotional posters and trailers, and developing 
other promotional material and press releases. The petitioner has failed to clarify the specific tasks the 
beneficiary would actually carry out and how involved she is in creating promotional materials and writing 
press releases. Further, when the petitioner states that the beneficiary would manage film festival activities 
and supervise all liaison activities with film and festival personnel, the petitioner does not clarify what 
underlying duties the beneficiary would perform . The petitioner has failed to clarify the beneficiary ' s role in 
organizing press junket activities, coordinating the film talent, or entering films in the festival. Without the 
full details of what actual tasks the beneficiary would be performing, the AAO is not able to conclude that the 
development and implementation of marketing and promotional programs can be deemed as time spent 
performing tasks in a qualifying managerial or executive capacity. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
performed or would perform were/ are only incidental to the position 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 (Corum. 1988). 
The petitioner failed to provide job descriptions of the beneficiary's subordinates and did not fully explain 
who would perform the underlying tasks the beneficiary has been assigned to oversee. This failure to submit 
relevant information coupled with the petitioner's provision of a job description that lacks sufficient 
information about the beneficiary's own daily tasks precludes the AAO from being able to conclude that the 
beneficiary's proposed employment with the petitioning entity would be in a qualifying managerial or 
executive capacity. 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. § 103.2(b)(14) . In light of the petitioner ' s failure 
to provide the necessary information pertaining to the beneficiary's proposed employment, this petition 
cannot be approved. 
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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 .