dismissed EB-1C Case: Marketing And Sales

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PUBLlCCOPY 
FILE: 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.s. Department 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 
Date: DEC 1 6 2010 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b){1 )(C) of the Immigration and Nationality Act, 8 U.s.C. § 1 I 53(b)(1 )(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 ofthe decision that the motion seeks to reconsider or reopen. 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis_gov 
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 New York corporation that seeks to employ the beneficiary as its president. Accordingly, 
the petitioner endeavors to classity the beneficiary as an employment-based immigrant pursuant to section 
203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § IlS3(b)(I)(C), as a multinational 
executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity; and 
2) the petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
After reviewing the documentation presented, the AAO finds that an adverse conclusion with regard to the 
beneficiary's position abroad was not warranted and hereby withdraws the first ground as a basis for denial. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his statements. The 
AAO will address all relevant portions of counsel's brief and supporting evidence in the discussion below. 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any ofthe 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 beneficiary would be employed in the United States in a 
qualitying managerial or executive capacity. 
Page 3 
Section IOJ(a)(44)(A) of the Act, 8 U.S.C. § I 10 1 (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) ofthe Act, 8 U.S.c. § IIOl(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 June 11,2008 describing the proposed 
employment as a senior-level position with the authority to supervise the work of others and to hire and fire 
personnel as need. The petitioner also provided the following description of the beneficiary's proposed 
employment with the u.s. entity: 
To execute his duties, [the beneficiary 1 will utilize his executive managerial capacity to 
manage and direct the U.S. operations, develop and expand the market for our products, 
promote our name in the U.S. and identity new markets for penetration in the u.s. His duties 
Page 4 
include the planning, directing and execution of all marketing activities together with the 
initiation and implementation of advertising strategies. [He] will oversee and manage 
marketing research and negotiate sales and payment terms with U.S. customers. 
Additionally, the petitioner provided an organizational chart illustrating its staffing hierarchy. The chart 
depicts the beneficiary at the top-most level as the company's president with a sales and marketing manager as 
his direct subordinate. The third hierarchical tier includes a sales manager in charge of distribution and 
customer service, an office manager, and a marketing manager in charge of research, development, and 
promotions. The bottom tier shows four commission-based regional managers-two under the supervision of 
the sales manager and two under the supervision of the marketing manager-and an office secretary under the 
supervision of the office manager. Although the chart also shows a general "office help" position, no specific 
positions were named under this general heading and no clear information was provided to explain which of 
the remaining positions would oversee and supervise the work of the "office help." 
On February 27, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, in part, a definitive statement listing the beneficiary's proposed job duties as well as the percentage of 
time that would be allocated to each job duty. The petitioner was asked to provide the job titles, brief list of 
job duties, and educational levels of all individuals who would report directly to the beneficiary in his 
proposed position. 
Although the petitioner's prior counsel provided a response dated March 30, 2009 acknowledging the 
director's RFE, counsel did not provide any of the requested information, but rather asked for an extension of 
time. The AAO notes that there is no statute or regulation that instructs the director to accommodate 
counsel's request. Accordingly, on May 14, 2009, the director issued a notice of intent to deny (NOlD) 
repeating the instruction included in the previously issued RFE. 
In response, the petitioner provided a letter dated May 6, 2009 as part of its Exhibit 6, in which the 
beneficiary's role within the petitioning organization was generally described as one of a manager and director 
of operations responsible for developing and implementing marketing and promotional strategies. The letter 
stated that the beneficiary is the petitioner's legal representative and is involved in negotiating legally binding 
contracts, including pricing and scheduling. The petitioner indicated that the beneficiary would allocate 
100% of his time to these responsibilities. 
Additionally, the petitioner indicated that 50% of the beneficiary's time would be spent planning, directing, 
and executing the company's marketing and promotional materials, while another 50% of his time would be 
allocated to supervising and controlling the work of subordinate employees, as well as hiring, firing, and 
recommending other personnel actions. Lastly, the petitioner stated that the sales and marketing manager, the 
sales manager, and the office manager all report directly to the beneficiary. 
In a decision dated June 4, 2009, the director denied the petition concluding that the petitioner failed to 
establish that it would employ the beneficiary in a qualifying managerial or executive capacity. The director 
commented on the petitioner's limited number of support personnel and determined that the petitioner would 
be unable to relieve the beneficiary from having to primarily carry out non-qualifying tasks. 
On appeal, counsel restates portions of the job description that was provided in response to the NOID, 
pointing to the beneficiary's high-level position within the petitioner's organizational hierarchy, his oversight 
Page 5 
of top-level subordinate employees, and the petitioner's retention of commission-based regional managers and 
other contracted sales personnel. Counsel pointed out that it is common practice in the garment industry to 
use outsourced personnel to carry out various sales and logistics functions. It is noted, however, that going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Saffici, 22 I&N Dec. 158, 165 (Comm. 1998)( citing Matter of Treasure Craft 
af Califarnia, 14 I&N Dec. 190 (Reg. Comm. 1972)). The unsupported assertions of counsel do not 
constitute evidence. Matter af Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter af Laureano, 19 I&N 
Dec. I (BIA 1983); Malter af Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). In the present matter, the 
petitioner has not provided any evidence to support the assertion that contractors were hired to perform any 
sales-related or administrative services. Merely including the outsourced positions in the petitioner's 
organizational chart, without supplying corroborating evidence to show that such outsourcing was actually 
taking place, is insufficient to support the initial claim. 
Additionally, the AAO notes that a detailed description of the beneficiary's proposed job duties is key to 
determining whether the proposed position is in an executive or managerial capacity. See 8 C.F.R. 
§ 204.5G)(5). The director's RFE and NOID expressly instructed the petitioner to provide a list of the 
beneficiary's proposed job duties accompanied by a percentage breakdown indicating the amount of time that 
would be allocated to each specific item listed. The record shows that while the petitioner responded to the 
NOID, the response lacked a list of the specific job duties and provided a confusing percentage breakdown, 
which precluded the director from being able to ascertain how much time the beneficiary would allocate to 
qualifying tasks versus the non-qualifying ones. For instance, the petitioner indicated that 100% of the 
beneficiary's time would be consumed with entering into legally binding contracts with customers, 50% of his 
time would be allocated to planning and executing promotion activities, and another 50% of his time would 
be devoted to personnel actions, including overseeing subordinate employees as well as hiring, firing, and 
seeking other personnel actions. 
On appeal, the petitioner supplements the record with another job description, which includes the following 
nine components: I) directing the development and transformation of the company; 2) leading the company's 
professional managerial staff in building partnerships with companies and marketing; 3) supervising the "U.S. 
Head of Sales & Marketing Manager," who would supervise other professional staff; 4) spearheading 
programs and oversee their implementation both in the United States and in India; 5) developing and 
overseeing the implementation of long-term growth plans and establish policies and objectives to increase 
sales revenue; 6) analyzing reports and financial statements; 7) reviewing, analyzing, and evaluating sales and 
marketing plans prepared by senior professional staff; 8) coordinating financial strategies; and 9) creating 
policies and strategies to maximize efficiency and increase profits. 
Additionally, in an effort to clarify confusion created with the original percentage breakdown, the petitioner 
supplements the record on appeal with a second percentage breakdown, which indicates that the beneficiary 
would spend 50% of his time "engaged in his primary executive and managerial function," which the 
petitioner indicates would include establishing goals, policies, and strategies; formulating sales and marketing 
plans; meeting with top executives to forge business relationships; and negotiating contracts, planning the 
budget, and evaluating company performance. The petitioner indicates that another 25% of the beneficiary's 
time would be allocated to directing the management of the company, including professional managerial staff 
and senior-level outsourced personnel. Lastly, the petitioner states that the remaining 25% of the 
beneficiary's time would be allocated to following up with the production department heads located abroad, as 
well as the commercial support team and logistics vendors. While the additional list of responsibilities and 
Page 6 
supplemental percentage breakdown both indicate that the beneficiary's discretionary authority and placement 
within the petitioner's organizational hierarchy are indicative of a managerial or executive position, the 
supplemental information is nevertheless vague in its assessment of the beneficiary's daily job duties and 
therefore fails to convey a meaningful understanding clarifying how the beneficiary would carry out his 
assigned job responsibilities, A list of the beneficiary'S actual duties is necessary to determine the true nature 
of the employment Fedin Bros, Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (ED.N.Y. 1989), affd, 905 F.2d 
41 (2d. Cir. 1990). Thus, mere broad generalities indicating that the beneficiary directs the company, 
oversees staff, develops plans for growth, and creates policies and objectives are insufficient, as they do not 
further U.S. Citizenship and Immigration Services' (USClS) understanding of the underlying tasks the 
beneficiary performs on a daily basis to meet broad job responsibilities and business objectives. 
Moreover, in looking back on the job description that was provided in response to the NOID, the petitioner 
indicated that a considerable portion of the beneficiary's time would be allocated to contract negotiation and 
marketing, neither of which were established as being qualifying managerial or executive functions. More 
specifically, the petitioner originally indicated that the beneficiary would always be in the process of contract 
negotiation, as 100% of the beneficiary's time was allocated to this function, and that during approximately 
50% of the time the beneficiary would also be involved in carrying out marketing plans to help sell products. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his 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 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 
managerial or executive capacity. See sections IOI(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). In the present matter, the record indicates that the 
primary portion of the beneficiary's time would likely be spent on contract negotiation and marketing, both of 
which are deemed as tasks that are necessary to produce a product or service. When this information is 
considered in light of the overall lack of documentary evidence establishing that the petitioner has outsourced 
employees to sell the petitioner's products, the likelihood that the petitioner would be able to relieve the 
beneficiary from having to allocate the primary portion of his time to performing non-qualifying tasks 
becomes even smaller. 
In summary, the record as presently constituted is not persuasive in demonstrating that the beneficiary would 
be employed in a primarily managerial or executive capacity. The petitioner did not provide a detailed 
description of the beneficiary's daily tasks and therefore failed to establish that the primary portion of the 
beneficiary'S duties would be primarily managing the organization or directing the management of the 
organization. The record lacks evidence to establish that the beneficiary would primarily supervise a 
subordinate staff of professional, managerial, or supervisory personnel or that he would otherwise be relieved 
from having to allocate significant portions of his time to performing non-qualifying job duties. The 
petitioner also failed to demonstrate that it has reached a level of organizational complexity that would require 
an employee who would allocate the primary portion of his time to managerial- or executive-level tasks, As 
previously stated, neither the beneficiary's job description nor the petitioner's organizational composition 
establishes that the beneficiary would be employed primarily in a qualifying managerial or executive 
capacity. For this reason, the petition may not be approved. 
Page 7 
As a final note, service records show the petitioner's previously approved L-I employment of the beneficiary. 
The AAO notes, however, that each nonimmigrant and immigrant petition is a separate record of proceeding 
with a separate burden of proof; each petition must stand on its own individual merits. USCIS is not required 
to assume the burden of searching through previously provided evidence submitted in support of other 
petitions to determ ine the approvability of the petition at hand in the present matter. The approval of a 
nonimmigrant petition in no way guarantees that USClS will approve an immigrant petition filed on behalf of 
the same beneficiary. USClS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-
129 L-I petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA USv. US Dept. of 
Justice, 48 F. Supp. 2d 22 (DD.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989). 
Furthermore, if a previous nonimmigrant petition were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of a prior approval that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved a nonimmigrant petition on behalf 
of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. 
Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (ED. La.), aii'd, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 S.C!. 51 (200 I). 
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.