dismissed EB-1C Case: Marketing

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal Ofl"'lCV 
JiUBucCOpy 
DATE: JUL 0 7 ZOll OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(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. 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)(I)(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.ulcis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, The matter is 
now before the Administrative Appeals Office (AAO) on appeaL The appeal will be dismissed, 
The petitioner is a Connecticut corporation that seeks to employ the beneficiary as its marketing manager, 
Accordingly, the petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant 
to section 203(b)( I)(C) of the Immigration and Nationality Act (the Act), 8 US,c' § IIS3(b)(I )(C), as a 
multinational executive or manager, 
The director denied the petition based on the determination 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 decision, asserting that the director overlooked relevant supporting 
evidence and misapplied statutory provisions. 
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 provided sufficient evidence to establish that 
the beneficiary would be employed in the United States in a qualifYing managerial or executive capacity. 
Section 10 I (a)(44)(A) ofthe Act, 8 u.s.c. § I 10 I (a)(44)(A), provides: 
Page 3 
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 IOI(a)(44)(B) of the Act, 8 U.s.C. § 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management ofthe 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- I 40, James Foley, the petitioning entity's vice president, submitted a letter dated 
December II, 2008 in which he stated that the beneficiary will assume a key managerial position in which 
she would be vested with a high degree of discretionary authority in terms of coordinating, directing, and 
implementing the petitioner's marketing operations. _ stated that the beneficiary would be 
responsible for developing marketing strategy, creating and overseeing the implementation of a marketing 
plan, compiling and analyzing market research, and working with the marketing and sales teams as well as the 
chief executive to develop promotional materials. 
On June 4, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
supplement the record with a more detailed job description and a time allocation showing the portion of time 
Page 4 
the beneficiary would spend on each of her assigned job duties. The petitioner was also asked to provide a 
detailed organizational chart, complete with the departments, teams, employees, job titles, and employees' job 
duties, illustrating the petitioner's organizational hierarchy. 
In response, the petitioner provided a statement dated July 2, 2009, which included the following hourly 
breakdown of the beneficiary's proposed employment: 
I. Develops the marketing and purchasing strategy. (10 hrs) 
2. Creates and oversees the implementation of marketing and purchasing plans . . . ; 
compile[s] and analyze[s] market research; deals with overseas suppliers worldwide. (10 
hrs) 
3. Works closely with the direct mail and list brokerage teams as well as the chief executive 
officer to develop effective promotional materials. (10 hrs) 
4. Hires, retains, trains, and discharges managerial and professional employees. (5 hrs) 
The beneficiary's subordinates were shown to include the following: an e-commerce specialist, a direct 
marketing specialist, a web merchandiser, and an inventory control analyst. This information was included in 
the petitioner's organizational chart, which depicts the beneficiary in a mid-level managerial tier with the 
above four subordinate positions shown at the level directly below the beneficiary. The company's CEO is 
shown as the beneficiary's direct superior. 
The petitioner also provided its wage reports, including those for the quarter that ended December 31, 2008, 
naming all company employees and their respective wages at the time the petition was filed. 
In a decision dated July 25, 2009, the director denied the petition finding that the petitioner failed to provide a 
job description that enhances an understanding of the beneficiary's specific job duties. The director also 
commented on the beneficiary's subordinates, finding that they "are not primarily managerial or supervisory 
within their own job capacities." 
On appeal, counsel challenges the director's decision and specifically addresses the director's finding with 
regard to the beneficiary's subordinates, contending that the director failed to properly apply section 
10 I (a)(44)(A)(ii) of the Act, which states that the beneficiary's subordinates may be managerial, supervisory, 
or professional employees. Counsel's point is properly made. The director may not place a heavier burden on 
the petitioner than that imposed by the statutory provisions. That being said, the petitioner's claims, including 
claims made with regard to the beneficiary's subordinates, must be supported using corroborating 
documentary evidence. Matter ofSoffici, 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, the record does not support the claims put forth by the petitioner with regard to the 
beneficiary's subordinates. More specifically, after thoroughly examining the petitioner's wage reports, 
particularly the quarterly reports for the fourth quarter of 2008, the AAO found that two of the four 
employees who were named as the beneficiary'S not 
included in the list of employees who were paid wages during the quarterly period in which the petition was 
Page 5 
filed. It is therefore unclear who, other than the beneficiary, was available to carry out the job duties of the e­
commerce specialist and the web merchandiser at the time of filing the petition. 
The AAO further points out that regardless of the complexity of the petitioning entity's organizational 
hierarchy, the petitioner must provide a detailed description of the proposed job duties. 8 C.F.R. 
§ 204.5U)(5). It is noted that the actual duties themselves reveal the true nature of the employment. Fedin 
Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.O.N.Y. 1989), ajj'd, 905 F.2d 41 (2d. Cir. 1990). In the 
present matter, the petitioner's description of the beneficiary'S proposed employment is overly broad and, 
without further explanation, indicates that a significant portion of the beneficiary'S time would be allocated to 
daily operational tasks that are not within a qualifYing capacity. Although the underlying element of 
discretionary decision-making is implied with respect to the beneficiary's role in the marketing and 
purchasing strategy, the petitioner failed to define what actual tasks the beneficiary would perform in her 
effort to develop the strategy. 
In the appellate brief, counsel supplements the prior job description, stating that the beneficiary'S role in 
marketing and purchasing strategy includes analyzing and implementing market studies, programs and 
policies; analyzing and studying sales records, inventory levels, and changes affecting supply and demand of 
the petitioner's products; compiling information on industry trends; and developing planning, and 
implementing goals, policies, and strategies with respect to promotion, marketing and economic growth. This 
supplemental information still lacks a delineation of the beneficiary's daily tasks, which are not self-evident 
with the petitioner's use of broad terminology. For instance, counsel does not explain how the beneficiary 
would implement marketing studies and strategic planning. Counsel also does not clarifY how compiling data 
and monitoring industry trends can be deemed as qualifYing tasks, nor does he provide any further insight into 
the specific tasks the beneficiary would perform in the course of developing, planning, and implementing 
goals and policies. Counsel's statements simply fail to contribute to a meaningful understanding of the 
beneficiary's day-to-day tasks with regard to her role in developing marketing and purchasing strategy. 
The petitioner similarly failed to specifY what actual tasks would be involved in creating marketing and 
purchasing plans. In fact, as a result of the petitioner's overly broad statements, the AAO is unable to 
understand the difference between developing marketing and purchasing strategy and creating marketing and 
purchasing plans. While counsel attempts to clarifY the beneficiary's role with regard to creating and 
overseeing the implementation of marketing and purchasing plans, his claim that the beneficiary engages in 
contract negotiation only lends itself to further scrutiny in that contract negotiation, on its face, is not deemed 
to be a qualifYing managerial or executive task, but rather, is indicative of an essential operational task. 
The AAO also questions the managerial or executive nature of compiling market research and dealing with 
overseas suppliers. Counsel adds to the AAO's doubts as to the qualifYing nature of the proposed 
employment by stating that the beneficiary would conduct research studies and develop direct mail programs 
and campaigns. Similarly, with regard to the beneficiary's role in developing promotional materials, the 
underlying implication is that other operational tasks would be performed in the course of the beneficiary's 
day-to-day activity. 
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 
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 
Page 6 
managerial or executive capacity. See sections 101(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). 
Here, while counsel places great emphasis on the beneficiary's subordinate staff of professional employees, 
this element is not sufficient to establish eligibility, even if the record were to contain adequate 
documentation to establish that the claimed staff was in place at the time of filing. Similarly, counsel's 
repeated references to the petitioner's gross revenues and the size and scope of the petitioner's business 
suggests that he placed undue focus on various factors other than a detailed description of the proposed 
employment. As stated above, a detennination of the petitioner's eligibility to classifY the beneficiary as a 
multinational manager or executive simply cannot be made without first considering the beneficiary's 
proposed job duties. Only then will the AAO go on to consider other relevant factors, including the 
petitioner's organizational hierarchy, the beneficiary's position therein, and the petitioner's overall ability to 
relieve the beneficiary from having to primarily perfonn the daily operational tasks. 
In the present matter, the petitioner has left unanswered questions regarding the portion of the beneficiary's 
time that would be allocated to non-qualifying tasks and the sufficiency of human resources, i.e., staff, to 
carry out the operational tasks associated with the beneficiary's proposed managerial position at the time of 
filing. While the AAO does not doubt that the proposed employment involves aspects that can be deemed as 
being within a qualifYing managerial or executive capacity, the petitioner has failed to establish that these 
qualifYing aspects would consume the primary portion of the beneficiary's time. Neither the job description 
nor the organizational hierarchy within the scope of the beneficiary's proposed position is sufficient to 
establish that the beneficiary would be employed in a qualifYing managerial or executive capacity. Therefore, 
on the basis of this conclusion, the AAO finds that approval of the petition is not warranted. 
Furthennore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. § 204.5(j)(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 his entry 
to the United States as a nonimmigrant to work for the same employer. In the instant matter, the AAO finds 
that the neither the description of the beneficiary's employment abroad nor the subordinate positions that are 
depicted in the foreign entity's organizational hierarchy establish that the beneficiary was employed abroad in 
a qualifYing managerial or executive capacity. 
Second, 8 C.F.R. § 204.5(j)(3)(i)(C) states that the petItIOner must establish that it has a qualifYing 
relationship with the beneficiary's foreign employer. To establish a "qualifYing relationship" under the Act 
and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. 
employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent and 
subsidiary" or as "affiliates." See generally § 203(b)(1)(C) of the Act, 8 U.S.c. § IIS3(b)(I)(C); see also 8 
C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The regulation and case law confinn that ownership and control are the factors that must be examined in 
detennining whether a qualifYing relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church SCientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BlA 1986); Matter of Hughes, 18 I&N Dec. 289 
Page 7 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
In the present matter, while the record indicates that ~~:~::~!5~~0~w:n~s~a:n:d~co:n:t:ro:l:s;t:h;e. petitioning entity, the record is silent as to who owns and controls the 
beneficiary's foreign employer. The petitioner's July 2, 2009 statement merely indicates that 
••••• "is an integral part of Although the petitioner adequately documented the 
holding entity's control over the petitioner's voting shares, the record is silent as to the ownership of the 
beneficiary's foreign employer. As such, the AAO cannot conclude that the beneficiary's foreign and U.S. 
employers are similarly owned and controlled. 
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 (ED. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(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. 
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 appeal is dismissed.