dismissed EB-1C Case: Oil And Gas Retail

identifying data deleted to 
prevent Ch:~arl)' unwarranted 
invasion of personal privacy 
'PUBLIC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
MAY 2 5 2011 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration SelVices 
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)(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 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 I-290B, Notice of Appeal or Motion, 
with a fee of $630. 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, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.u5cis.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 limited liability company organized in the State of Texas. The petitioner seeks to employ 
the beneficiary as its President and CEO. 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. 
The director denied the petition based on the determination that the petitioner failed to establish that the 
beneficiary would be employed in the United States in a managerial or executive capacity. 
On appeal, counsel disputes the director's decision and submits a brief discussing the beneficiary'S role as the 
sole decision maker within the petitioning entity. 
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)(1)(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 would employ the beneficiary in the United 
States in a qualifying managerial or executive capacity. 
Section 1 01 (a)(44)(A) of the Act, 8 U.S.C. § 1101(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 101(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 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 beneficiary submitted a letter dated August 5, 2008 in his capacity as the 
petitioner's president and CEO. The beneficiary stated that he holds the top-most position within the U.S. 
entity, supervises employees, and maintains responsibility over planning and developing the U.S. investment, 
overseeing the company's finances, and developing policies and objectives. He further stated that he would 
negotiate and supervise the drafting of purchase agreements, develop market strategies, hire personnel, lease 
equipment and facilities, oversee the petitioner's finances and legal processes, and develop and implement 
plans to ensure that the petitioner remains profitable. The beneficiary indicated that 25% of his time would be 
allocated to making management decisions, 15% to representing the company, 15% to financial 
representation, 10% to supervising daily operations, 15% to business negotiations, and 10% to organizational 
Page 4 
development. The beneficiary focused on his position within the company's hierarchy as well as his decision­
making authority and claimed that his duties are "Executive or Managerial" in nature. 
On February 27, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
submit, in part, a detailed description of the beneficiary's proposed employment, including a list of the 
beneficiary's job duties and the percentage breakdown that would be allocated to each job duty. The 
petitioner was also instructed to discuss the beneficiary's subordinates, including their job titles, job duties, 
educational levels, and their respective positions within the petitioner's hierarchy. 
In response, counsel submitted a letter dated April 1, 2009 in which he generally summarized the beneficiary's 
proposed position as one that involves planning, expansion, banking, budgeting, marketing, hiring and 
training employees, and increasing company sales. Counsel stated that the beneficiary is employed "at the 
highest executive level" which entails exercising discretionary authority to establish goals and policies and 
make decisions and supervising professional and managerial employees. This same information was stated 
repeatedly throughout counsel's response with great emphasis placed on the beneficiary's discretionary 
authority and his placement within the petitioner's organizational hierarchy. 
Counsel also provided an organizational chart for Starco Oil Company, the entity in which the petitioner had 
acquired a 50% ownership interest, depicting the beneficiary as the company's senior-most executive with a 
vice president/general manager as his direct subordinate. The latter individual was shown as overseeing a 
sales and marketing manager, a retail manager, and an accountant. The next level on the chart included a 
purchase agent as the sales and marketing manager's subordinate, an assistant manager as the retail manager's 
subordinate, and a bookkeeper as the accountant's subordinate. Lastly, the store cashiers are depicted at the 
bottom of the hierarchy as the assistant manager's subordinates. 
In a separate submission, the petitioner provided the following description of the beneficiary's proposed 
position: 
Identifying, recruiting, and building a management team and staff. Hiring, discharging, and 
transferring employees according to work performance and production needs. Leasing 
equipment and retail service facilities. Negotiating and supervising the drafting of service 
agreements. Overseeing the legal and financial due diligence process and resolving any 
related issues. Developing trade and consumer market strategies based on guidelines 
formulated by the shareholders and directors. Preparing and analyzing reports on labor cost 
and production operations developing and implementing plans to ensure company's profitable 
operation. 
On May 18, 2009, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. The 
director found that the petitioner provided a deficient job description that relied on broad job responsibilities 
and the beneficiary's discretionary authority, yet failed to convey an understanding of what the beneficiary's 
specific daily tasks would be. 
On appeal, counsel provides a discussion of the gas station and convenience store industry and briefly 
addresses the factors that the beneficiary must consider in an effort to ensure the successful operation of a 
convenience store. Counsel focuses on the beneficiary's discretionary power and executive authority, 
Page 5 
asserting that the beneficiary delegates tasks to a senior management team to help develop a strategy that 
accounts for target markets and the petitioner's competitors. Counsel quotes and paraphrases the statutory 
definitions of managerial and executive capacity, contending that the beneficiary directs the management of 
the petitioner by overseeing the employees who carry out the daily tasks. The beneficiary's role in 
establishing goals and policies, supervision of managerial employees, and his wide latitude in discretionary 
decision-making are repeatedly emphasized. Counsel urges the AAO to consider the petitioner's reasonable 
needs and stage of development. 
The AAO finds that counsel's arguments are not persuasive in establishing that the beneficiary's u.s. 
employment with the petitioning entity would be in a qualifying managerial or executive capacity. 
While the petitioner's reasonable needs and stage of development are factors to be considered, neither 
supersedes the petitioner's burden of having to establish that the beneficiary would primarily perform duties 
of a qualifying managerial or executive nature. When examining the executive or managerial capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). 
Although the beneficiary's job description is not the only factor that is considered in determining the 
employment capacity of the proposed position, this element is highly critical. Published case law has upheld 
the significance of a detailed job description, finding that the actual 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). 
In the present matter, the petitioner has failed to provide an adequate description of the beneficiary's proposed 
employment within the context of the petitioner's business. Although the beneficiary's job description 
repeatedly focuses on his discretionary authority and attempts to establish that a support staff is available to 
relieve the beneficiary from having to execute the non-qualifying operational tasks, the petitioner fails to 
affirmatively establish just what specific tasks the beneficiary would perform, nor does the petitioner 
adequately explain the need for the multiple executive and management tiers that have been depicted in the 
organizational chart of a single gas station/convenience store. The description of the petitioner's organization 
as a rather complex organizational hierarchy depicting the beneficiary as the top-most executive is not 
sufficient to establish that the proposed employment would be within a qualifying managerial or executive 
capacity. 
Furthermore, in examining the job description that was provided by the petitioner in response to the RFE, the 
AAO is entirely unclear as to how the beneficiary's job duties fit within the overall scheme of the petitioner's 
business operation. For instance, the petitioner indicated that the beneficiary would identify, recruit, and 
build a management team. However, the organizational hierarchy that was illustrated in the petitioner's 
organizational chart indicates that a management team was already in place at the time of filing the petition. 
The petitioner also claimed that the beneficiary would lease equipment and retail facilities. However, no 
explanation was provided as to the type of equipment the beneficiary would lease or how the leasing of 
equipment and retail facilities qualify as managerial or executive tasks. Similarly, the petitioner failed to 
explain how negotiating service agreements is a qualifying task or why this task is required in the context of 
the petitioner's business. The AAO is equally confused as to what types of legal and financial processes the 
beneficiary would oversee, as no further information was provided to qualify these and various other broadly 
stated job responsibilities. 
Page 6 
In reviewing the infonnation that has been provided, it appears that the petitioner has purchased a 50% 
ownership interest in a gas station/convenience store that was already in operation at the time of the said 
purchase. While the entity that was purchased appears to have had several employees to man and operate the 
retail operation, the petitioner itself is a separate legal entity. The record does not include documentation to 
establish whom, if anyone, the petitioner itself employs. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). As previously discussed, the beneficiary's job duties within the petitioner's current business 
structure are equally unclear. Despite numerous claims made by counsel and by the beneficiary, the AAO 
cannot assume that the proposed employment would be within a qualifYing managerial or executive capacity 
merely based on the beneficiary's discretionary authority or his position with an organizational hierarchy. 
In summary, the AAO cannot reach a favorable conclusion without ajob description that adequately describes 
the proposed employment. Although the director attempted to elicit necessary infonnation by issuing an RFE 
that expressly instructed the petitioner to list the beneficiary's specific job duties and to assign time allocations 
to establish what percentage of time would be allocated to each job duties, the petitioner did not fonnulate the 
response within the requested fonnat. The petitioner failed to enumerate the beneficiary's specific daily tasks 
and thus failed to establish how the beneficiary's time would be allocated. Given that the beneficiary's time 
would be allocated to both qualifYing and non-qualifYing tasks, the time allocation is essential to detennine 
precisely how much of his time the beneficiary would spend perfonning tasks that are not within a qualifYing 
capacity. 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 perfonn are only incidental to his/her proposed position. An employee who "primarily" perfonns 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" perfonn the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). Here, in light of the petitioner's failure to provide an 
adequate job description for the proposed employment, the AAO lacks the necessary infonnation that could 
serve as a basis for a favorable conclusion. As such, the AAO cannot affinnatively conclude that the 
beneficiary would be employed in a qualifYing managerial or executive capacity. 
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 
into the United States as a nonimmigrant to work for the same employer. In the present matter, the AAO 
similarly finds that the record lacks an adequate description of the beneficiary's foreign job duties. As 
previously stated, an adequate job description is essential for the purpose of detennining whether the 
beneficiary's position primarily involves the perfonnance of tasks within a qualifYing capacity. The fact that 
this crucial infonnation has not been presented in the present matter precludes the AAO from making a 
favorable finding with regard to this issue. 
Second, 8 C.F.R. § 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Fonn 1-140. The regulation at 8 C.F.R. § 204.5(j)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods and/or services by a finn, 
. . 
Page 7 
corporation, or other entity and does not include the mere presence of an agent or office." The Form 1-140 in the 
present matter was filed on August 13, 2008. However, the record lacks sufficient evidence to establish that 
the petitioner was doing business as of August 13,2007. As noted earlier, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter ofSoffici, 22 I&N Dec. at 165. 
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 (E.D. 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. 
Accordingly, 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.