dismissed EB-1C Case: Office Supplies

(b)(6)
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DATE: . MAR 0 9 ·2013 OFFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Depa.rtment of Homeland Security· 
U. S. Citizenship and lmm.igration' Serviecs 
Administrative Appeals Offic e (AAO) 
20 Massachus etts Ave . N.W., MS.2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
· i 
FILE: 
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. § 1153(b)(l)(C) · 
ON .BEHALF OF PETITIONER: 
· INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documems 
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 16 reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630_. Th~ 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. Do not file any motion 
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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 d~ys of the decision that the motion seeks to recOnsider or reopen. 
T~o_fi: · , ·v:·'~'.- '; .. _ .. 
~~-.. :': .. _.. .­
. ·'? .. :·:: , · ~\(ik:, . 
Ron Rose erg 
• ~:t- .. . 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
. (. 
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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 claims to be a Florida corporation that seeks to employ the beneficiary in the United States as 
its president. 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)(1)(C), as a multinational executive or manager. 
Among the documents that were submitted in support of the Form 1-140 was a statement dated September 29, 
2008 and signed by in her capacity as the company administrator. stated that the 
petitioner had four employees , including the beneficiary, and described the petitioner's business as one 
involving the import and export of office supplies, printers, and copier parts. The petitioner also provided 
additional evidence in the form of corporate and business documents. 
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 February 5, 2010 informing the p~t i tioner of 
various evidentiary deficiencies . The RFE included requests for a. more detailed job ~escription p~rtaining t<;> 
the ·beneficiary's proposed employment with a list of the beneficiary's job duties and their time alloc~tions, 
the petitioner's organizational chart depicting the company's staffing structure and the be~eficiary's 
placement therein , and job descriptions of the beneficiary's subordinates in each entity . The peti.tioner was 
asked to support its statements with documentary evidence. The director also cautioned the petitioner to 
refrain from paraphrasing the statutory language in place of the beneficiary's job description and . inst~ad to 
provide specific examples of duties the beneficiary would perform that meet the statutory definition of 
managerial or executive capacity. · 
The petitioner's response to the RFE included a statement' dated March 15, 20 I 0 and signed by the 
petitioner's sales manager. The state~ent included an overview of the beneficiary ' s U.S. employment and 
job descriptions pertaining to the sales manager and administrator positions. The petitioner also prov~ded a. 
copy of its organizational chart from March 18, 2009 depicting a total of five employees-the beneficiary, an 
administrator, a secretary, a sales manager, and a sales perso~as well as the petitioner's 2009: tax ~eturn 
showing $62,400 paid to the beneficiary in officer compensation and an additional $67,152 paid in employee 
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wages and salaries . 
After considering the petitioner's response, the director det,ermined that the petitioner failed to establish . that 
the beneficiary would be employed with the U.S. entity in a qualifying managerial or executive capacity. The 
director found the beneficiary ' s job description to be lacking the detailed information that was requested in 
the RFE and fu~her determined that a significant portion of the beneficiary's time would be allocated to tasks 
of a non-qualifying nature. In light of these adverse findings, . the director issued a decision dated June 1', 
2010 denying the petition. ' ' 
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On appeal, counsel provides a brief in which he disputes the director's findings by reiterating information that 
was previously provided with regard to the beneficiary's job description and the job descriptions ~f the 
beneficiary's subordinates. Counsel points to the beneficiary's discretionary authority, senior position withi~ 
the petitioner's organizational hierarchy, and his oversight of managerial and supervisory subordinates . · 
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The AAO finds that counsel's statements are not persuasive and 'thus fail to overcome the directo/s finding~: 
A comprehensive discussion ofthe AAO's findings is 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 empJoyed for at least 1 year by a firm or 
corporation or other h!gal 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 unde~ sectio~ 
203{b)(1){C) of the Act as a multinational executive or manager. No labor certification is requir¢d f6r 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. 
As indicated above, the primary issue in this proceeding calls for an analysis of the beneficiary's proposed 
employment. The AAO will examine · the petitioner's submissions in order to determine whethe:r adequat~ · 
supporting evidence was submitted to establish that the beneficiary would be employed in the United St~tes i~ 
a qualifying managerial or e~ecutive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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; 
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(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 i 
. (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 riot 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10l(a)(44)(B) of the Act, 8 U.S.C. § 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 latitu'de in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
~he board ofdirectors, or stockholders of the organization. i. 
In general, when examining the executive or managerial capacity of the beneficiary, the AAO revie~s the 
totality of the record, starting first with the petitioner's description of the beneficiary'sjob duties. S~e 8 C. F . ~. 
§ 204.5(j)(5). A detailed description of actual daily job duties is crucial, as the duties themselves · 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). The AAO will then consider this information in light of other relev~nt factors, 
including (but not limited to) job descriptions of the beneficiary's subordinate employees, the na!urc :of th~ 
petitioner's business, the employment and remuneration of employees to relieve the beneficiary fr(>m havin~ 
to primarily perform non-qualifying tasks, and any other facts contributing to a comprehensive un~erstanding 
of a beneficiary's actual role in the business. 
In the present matter, the AAO finds that the director accurately assessed the shortfalls of the job descriptio~ 
that the petitioner offered in the response to the RFE. Not only does the petitioner only account for 80% of 
the beneficiary's time in the brief percentage breakdown that was included in the March 15, 2010 ~ statemenl, 
but the job description is replete with vague statements that fail to. identify the bene'ficiary's actual aaily tasks 
while other portions of the description indicate that the beneficiary would allocate some of his tim~ to certain 
non-qualifying tasks. To Clarify these points, the AAO observes the petitioner 's claim that 10% of the 
beneficiary's time would be allocated to establishing and overseeing the implementation of the ~etitioner's 
financial goals and policies and 15% would be allocated to coordinating administrative and sales. activities. 
The· petitioner did not list any specific tasks that would convey a meaningful understand of how the 
beneficiary coordinates administrative and sales activities or what he actually does to establish and Implement 
policies regarding the petitioner's finances . This . lack of specific information leaves open the poss.ibiliiy that 
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establishing and implementing financial goals and policies and coordinating sales and administrativ~ activities 
may involve non-qualifying tasks in addition to the non-qualifying nature of developing new markets ~or the 
petitioner's products and negotiating with ·suppliers and sellers of such products. · 
While the AAO ackno_wledges 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 the 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 101(~)(44)(A) and (B) of the Act (requirin ·g that on~ 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church S.cientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Furthermore, the petitioner's organizational chart, ·which indicates that the petitio!ler employed fiv'e full-time 
employees at the time of filing, is inconsistent with the petitioner's Form 1-140 and initial support;statement; 
both of which indicate that the petitioner had only four employees at the time of filing . In light of _the lack of 
clarifying information, it is unclear whether the p~titioner's support staff at the time of filing was s~fficlent tb 
relieve the beneficiary from having to allocate his time primarily to non-qualifying tasks. 
Despite counsel's efforts to focus on the beneficiary's placement within the petitioner's org~nizationa:_J 
hierarchy and the discretionary authority that inevitably accompanies the beneficiary's leadership position , 
the job descriptions provided are simply insufficient to affirmatively establish that the beneficiary wo.uld 
allocate his time primarily to the performance of tasks within a qualifying managerial or executiJe capacity 
and on the basis of this conclusion the instant petition cannotbe approved. ' 
In visa petition proceedings, the burden ofproving eligibility for the benefit sought remains entire!y 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.