dismissed EB-1C Case: Natural Stone Import/Distribution

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
DEC 0 8 2009 
FILE: LIN 07 116 53374 OFFICE: NEBRASKA SERVICE CENTER 
 Date: 
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. 9 103.5 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 reopen or reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
LIN 07 116 53374 
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 California corporation engaged in the import and distribution of marble and natural stone. 
The petitioner seeks to employ the beneficiary as its president. 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. 
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. 
On appeal, counsel disputes the director's conclusions and submits a brief, arguing that the regulations do not 
prohibit the petitioner from employing family members nor require the petitioner to have full-time employees. 
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 afiiliate 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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
would be employed in the United States in a qualifying managerial or executive capacity. 
LIN 07 116 53374 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 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. 8 1101(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 February 20, 2007, which included a 
percentage breakdown of the beneficiary's proposed employment and a statement of the duties and 
responsibilities associated with the beneficiary's employment abroad. As the director's denial includes the 
percentage breakdown of the proposed employment, the AAO need not restate the job description. Although 
the director's decision does not include a description of the beneficiary's foreign employment, the AAO notes 
that the description is virtually identical to that of his proposed employment, with the minor exception of the 
verb tense used in reference to past employment. The AAO therefore finds it unnecessary to restate the 
description of the beneficiary's foreign employment. 
LIN 07 116 53374 
Page 4 
On May 27, 2008, the director issued a notice of request for evidence (RFE). The director acknowledged the 
petitioner's earlier submission of statements describing the beneficiary's past and proposed employment and 
informed the petitioner that those descriptions were inadequate. The director noted that the descriptions were 
vague and appeared to be inconsistent with the petitioner's staffing structure. Accordingly, the petitioner was 
instructed to specifically list the beneficiary's past and proposed job duties and to assign the percentage of 
time that was and would be allotted to each listed task. The petitioner was asked to provide several of its 
quarterly wage withholding returns, including the quarter during which the Form 1-140 was filed, as well as 
an organizational chart illustrating the petitioner's staffing structure as of the date of filing. 
In response, the petitioner provided a letter dated June 11,2008 from counsel, who provided a nearly identical 
description of the beneficiary's proposed employment as the one provided initially in support of the petition. 
While counsel included the requested percentage breakdowns, he failed to comply with the director's express 
request for a more detailed description. Additionally, the petitioner provided the following list of the job 
responsibilities that correspond to the beneficiary's past and proposed employment: 
Policy setting. 
preparation and supervision of financial statement procedures and working analyses [sic] to 
be audited by the [clompany's [ilndependent [aluditors. 
presentation of [aludited [flinancial [sltatements to [the clompany's shareholders[,] 
executives, major [clreditors and [blankers. 
Approval of [plurchase [olrders. 
Approval of [slales [olrders. 
Approval of payments to [sluppliers. 
Personnel recruitment. 
Personnel evaluation. 
The petitioner also provided an organizational chart that reflects the staffing structure as of the date the 
petition was filed representing a total of seven employees. The chart depicts the beneficiary at the top of the 
organization with the chief financial officer (CFO), i.e., the beneficiary's direct subordinate, controlling 
operations. The CFO in turn oversees an administratorlmarketing employee, two receptionists, and two sales 
people. The foreign entity's organizational chart was also provided, depicting the beneficiary at the top of the 
hierarchy as the company's president. The beneficiary's two subordinates included a financial controller and a 
marketing manager. The marketing manager in turn oversees one manual laborer, who oversees the "hard 
work labor employees." Lastly, the petitioner provided several quarterly wage withholding statements, 
including the 2007 first quarterly statement during which the petitioner filed the Form 1-140. The statement 
names a total of four employees, including the beneficiary, and provides each individual's quarterly salary. 
In a decision dated October 20, 2008, the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary was employed abroad or that he would be employed in the United States in a 
qualifying managerial or executive capacity. The director noted that the petitioner failed to comply with the 
WE request for a more detailed description of the beneficiary's job duties with the foreign and U.S. entities. 
The director questioned several items in the job description concerning the proposed employment and further 
commented on the fact that the petitioner's entire support staff is comprised of family members whose wages 
suggest that they were employed on a limited part-time basis at the time of filing. 
LIN 07 116 53374 
Page 5 
On appeal, counsel asserts that the beneficiary's prospective employment will be within an executive capacity 
and further contends that the regulations do not prohibit a petitioner from employing family members or part- 
time employees. Counsel is correct on both counts. However, with regard to the beneficiary's employment of 
part-time staff, the petitioner must establish that such circumstances are sufficient to accommodate the 
petitioner's needs while relieving the beneficiary from having to primarily perform tasks of a non-qualifying 
nature. In the present matter, the petitioner has not met this burden. Not only has the petitioner failed to 
comply with the director's express request for a detailed list of the beneficiary's specific job duties, but the 
petitioner has also failed to explain how an entity, whose entire support staff at the time of filing consisted of 
three part-time employees (not including the beneficiary), actually required the beneficiary's services in a 
primarily managerial or executive capacity. Moreover, it is unclear how the three-person part-time support 
staff was sufficient to relieve the beneficiary from having to primarily perform tasks of a non-qualifying 
nature. That being said, the AAO notes that a number of the numerically listed job responsibilities, which the 
petitioner provided in response to the RFE, are of a non-qualifying nature. Specifically, the petitioner has 
failed to establish that the preparation of financial statements, the presentation of such statements to third 
parties, and the recruitment and evaluation of personnel, who may or may not be professional, managerial, or 
supervisory employees, can be deemed as qualifying managerial or executive job duties. 
In summary, the petitioner has failed to provide a sufficient description of the duties to be performed by the 
beneficiary during his proposed position with the U.S. entity as requested by the director and required by 
8 C.F.R. $ 204.56)(5). The petitioner has similarly failed to ,provide the requested list of tasks the beneficiary 
performed during his foreign employment. Additionally, the petitioner has failed to establish that either the 
U.S. entity or the beneficiary's foreign employer was adequately staffed to relieve the beneficiary from having 
to primarily perform each entity's daily operational 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 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 (Comm. 1988). 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity, USCIS must take into account the reasonable 
needs of the organization, in light of the overall purpose and stage of development of the organization. To 
establish that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must 
specifically articulate why those needs are reasonable in light of its overall purpose and stage of 
development. In the present matter, the petitioner has not explained how the reasonable needs of the 
petitioning enterprise justify the beneficiary's performance of non-managerial or non-executive duties. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Cornrn. 1998). 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
lOl(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1101(a)(44). The reasonable needs of the petitioner may justify 
a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 90 percent, 
but those needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying 
duties. 
LIN 07 116 53374 
Page 6 
Additionally, the MO notes that counsel's statement on appeal does not address any of the director's adverse 
findings with regard to the beneficiary's employment abroad. In effect, the petitioner concedes these issues on 
appeal. 
As stated above, the record lacks evidence of proper staffing within either entity and further fails to specify 
the actual job duties performed abroad or those that would be performed in the Unites States. Due to these 
significant deficiencies, the MO cannot affirmatively conclude that the beneficiary was employed abroad or 
that he would be employed by the U.S. entity in a qualifying managerial or executive capacity. Therefore, on 
the basis of these two independent findings, this petition cannot be approved. 
Furthermore, while not addressed in the director's decision, the AAO finds that the record lacks sufficient 
evidence to establish that the petitioner falls under the definition of multinational, a term that applies to a 
qualifying entity, or its affiliate, or subsidiary that conducts business in two or more countries, one of which is 
the United States. 8 C.F.R. fj 204.56)(2). Doing business is defined as the regular, systematic, and continuous 
provision of goods andlor services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office. Id. While the record shows that the petitioner has been and continues to do business, 
there is insufficient documentation to establish that the foreign entity has been doing business since the date 
the petition was filed. More specifically, the record shows that the petition was filed in March 2007. 
However, the most recent documentation of the foreign entity's business transactions consists of invoices that 
were dated January 2007, two months prior to the date the petition was filed. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofjci, 22 I&N Dec. at 165. 
 In the present matter, the record lacks evidence 
establishing that the U.S. petitioner is a multinational entity. For this additional reason, this petition cannot be 
approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the MO 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), afyd, 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 MO 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. 8 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.