dismissed EB-1C Case: Olive Oil Processing And Importing

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 
DATE: OCT 1 6 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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. § I 153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to 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.uscis.gov 
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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 Jersey company engaged in olive oil processing and importing, and it seeks 
to employ the beneficiary as its Sales Manager/Executive. 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 U.S.c. § I I 53(b)(I)(C), as a multinational executive 
or manager. 
On July 8, 2011, the director denied the petition concluding that the petitioner failed to establish 
that the beneficiary's employment abroad was within a qualifYing managerial or executive capacity, 
and failed to establish the existence of a qualifYing relationship between the petitioner and the 
beneficiary's foreign employer. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. Counsel submits a brief and additional evidence in support of 
this assertion. 
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 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 the firm, corporation or other legal entity, or an affiliate 
or subsidiary of that entity, and 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 
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offer in the form of a statement that 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. See 8 C.F.R. § 204.5(j)(5). 
The first issue in this proceeding is whether the petitioner submitted sufficient evidence to establish 
that the beneficiary would be employed in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) ofthe Act, 8 U.S.c. § I I 01 (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 ofthe 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)(8) of the Act, 8 U.S.C. § I 101 (a)(44)(8), 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 
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(iv) receives only general supervIsIon or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as 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); see also 8 C.F.R. § 204.5(j)(5). USCIS reviews 
the totality of the record, which includes not only the beneficiary's job description, but also takes 
into account the nature of the petitioner's business, the employment and remuneration of employees, 
as well as the job descriptions of the beneficiary's subordinates, if any, and any other facts 
contributing to a complete understanding of a beneficiary's actual role within a given entity. 
An analysis 0 f the record does not lead to an affirmative conclusion that the beneficiary was 
employed by the foreign company in a qualifYing managerial or executive capacity. Due to the 
general information in the job description, the petitioner has failed to provide a comprehensive 
explanation of how much time the beneficiary spent performing qualifYing tasks versus those that 
would be deemed non-qualifYing. 
The job description included several non-qualifYing duties. For example, the beneficiary will be 
responsible for "sales relations with major customers"; "must accurately forecast annual, quarterly 
and monthly revenue streams and develop specific plans to ensure revenue growth in all of the 
company's product lines"; "provides quarterly results assessments of the sales staffs productivity"; 
"directs professional account management activities and coordinate proper company resources to 
ensure efficient and stable product sales"; "directs the actual distribution or movement of the 
products to the customer and coordinates sales distribution by establishing sales territories, quotas 
and goals and establishing training programs for sales representatives"; and "analyzes sales 
statistics gathered by staff to determine sales potential and inventory requirements and monitor the 
preferences of customers." 
It appears that the beneficiary will be developing and marketing the services of the business, 
handling all of the sales operations, and negotiating contracts, rather than directing such activities 
through subordinate employees. The petitioner did not identifY any employees who actually 
assisted the beneficiary in sales, fmancial forecasting, sales results assessments, product 
distribution, establishing training programs, assessing inventory requirements, or monitoring 
customer preferences, thus indicating that the beneficiary will carry out these operational functions, 
which are clearly outside the parameters of what would be deemed as being within a managerial or 
executive capacity. As discussed below, the record does not indicate subordinates that will perform 
the activities that are supervised by the beneficiary and it appears that the beneficiary is performing 
all of the day-to-day duties of the business. As stated in the statute, the beneficiary must be 
primarily performing duties that are managerial or executive. See sections 101(a)(44)(A) and (8) of 
the Act. Furthermore, the petitioner bears the burden of documenting what portion of the 
beneficiary's duties will be managerial or executive and what proportion will be non-managerial or 
non-executive. Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Page 5 
In a letter dated December 14, 2010 the petitioner stated that the beneficiary will report to the 
Export Manager that is located in Turkey and the Vice President for Sales - North America located 
in the U.S. In response to the request for evidence, the petitioner submitted an organizational chart 
that indicated a general manager who supervises the vice president of sales who in tum supervises 
the beneficiary. The chart also shows that the beneficiary supervises two employees in the sales 
team and one accountant. 
The petitioner submitted a copy of the Florida Department of Revenue Employer's Quarterly Report 
that states the petitioner employed one individual, the beneficiary, in the second and third quarters 
of 2010. The petitioner submitted Form W-2 for the beneficiary only. Thus, the documentation 
provided indicates that the only employee of the petitioner is the beneficiary and none of the 
individuals listed on the organizational chart are in fact, employed by the petitioner. Even though 
the petitioner claims that the beneficiary directs and manages sales activities, it does not claim to 
have anyone on its staff to actually perform the sales function. Thus, either the beneficiary himself 
is performing the sales function or he does not actually manage the sales function as claimed by the 
petitioner. In either case, the AAO is left to question the validity 0 f the petitioner's claim and the 
remainder of the beneficiary's claimed duties. Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). If the 
beneficiary is performing the sales function, the AAO notes 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. Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm'r 1988). 
On appeal, counsel for the petitioner contends that the proffered position is in a managerial capacity 
and not an executive capacity. Counsel also stated that the beneficiary "manages an essential 
function within the organization, or a department of subdivision of the organization." The AAO 
acknowledges counsel's contention that the beneficiary's position is an essential function within the 
petitioner's organization. The term "function manager" applies generally when a beneficiary does 
not supervise or control the work of a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 
8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. 
I f a petitioner claims that the beneficiary is managing an essential function, the petitioner must 
furnish a written job offer that clearly describes the duties to be performed in managing the essential 
function, i.e. identify the function with specificity, articulate the essential nature ofthe function, and 
establish the proportion of the beneficiary'S daily duties attributed to managing the essential 
function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the 
duties related to the function. An employee who primarily performs the tasks necessary to produce 
a product or to provide services is not considered to be employed in a managerial or executive 
capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing 
Matter of Church Scientology International, 19 I&N Dec. at 604. The petitioner has not provided 
evidence that the beneficiary manages an essential function. As noted above, the petitioner 
provided a brief and vague job description that did not discuss how the beneficiary is managing an 
essential function. Only on appeal did counsel for the petitioner claim that the beneficiary is 
Page 6 
managing an essential function in sales. As noted above, however, the beneficiary's job description 
does not establish that the beneficiary is performing in a primarily managerial capacity. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties ofthe beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the 
petitioner's business, and any other factors that will contribute to a complete understanding of a 
beneficiary's actual duties and role in a business. In the case of a function manager, where no 
subordinates are directly supervised, these other factors may include the beneficiary's position 
within the organizational hierarchy, the depth 0 f the petitioner's operations, the indirect supervision 
of employees within the scope of the function managed, and the value of the budgets, products, or 
services that the beneficiary manages. 
As discussed above, the petitioner has not identified employees within the petitioner's organization, 
subordinate to the beneficiary, who would relieve the beneficiary from performing routine duties 
inherent to operating the business. The fact that the beneficiary has been given a managerial job 
title and general oversight authority over the business is insufficient to elevate his position to that of 
a "function manager" as contemplated by the governing statute and regulations. As discussed 
above, the petitioner has not established that the beneficiary's duties are primarily managerial in 
nature, and thus he cannot be considered a "function manager." 
Other than stating that the proposed position will be responsible for managing an essential function 
in sales, counsel provides no explanation or evidence in support of his claim that the beneficiary 
would qualifY as a function manager pursuant to section 10I(a)(44)(A)(ii) of the Act. The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not 
entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
would be employed in the United States in a qualifYing managerial or executive capacity. 
Therefore, the instant petition cannot be approved. 
The second issue in this proceeding is whether the petitioner provided sufficient evidence to 
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. § 1153(b)(I)(C); see also 8 C.F.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
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(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
Multinational means that the qualifYing entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
contro Is the entity. 
In a letter dated December 14, 20\ 0, the petitioner stated that "both the foreign and US companies are 
commonly owned, controlled and managed in effectively the same percentages by the same 
individuals." However, the petitioner did not provide all of the relevant evidence since it provided 
stock certificates for the petitioner and it failed to provide stock certificate number 4. The petitioner 
submitted stock certificates number I, 2, 3, 5, and 6. 
As general evidence of a petitioner's claimed qualifYing relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary, and any other factor affecting actual control of the entity. See 
Without full disclosure of all relevant documents, 
users is unable to determine the elements of ownership and control. The petitioner has failed to 
establish that it has a qualifYing relationship with the beneficiary's foreign employer. For this 
additional reason, the 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. § 136\. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.