dismissed EB-1C Case: Operations Management

US. Department of Homeland Securitv 
ihtifLing data deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
U. S. Citizenship and Immigration Services 
Of$ce of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER  ate: SEP O 4 2009 
SRC 07 243 51130 
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: 
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. 3 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
JO& F. Grissom 
ing Chief, Administrative Appeals Office 
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 Georgia corporation that seeks to employ the beneficiary as its senior operations 
manager. 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. 9 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. On appeal, counsel submits a brief 
disputing the director's adverse decision. 
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)(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 primary issue in this proceeding is whether the petitioner established that the beneficiary would 
be employed in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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 10 1 (a)(44)(B) of the Act, 8 U. S.C. 5 1 10 1 (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, on the petitioner's behalf, submitted a letter dated July 
27,2007, which includes the following description of the beneficiary's proposed U.S. employment: 
[The beneficiary is i]n charge of all finance, [slales, marketing, purchasing, hiring and 
training and general operations. He has the responsibility for the long-term and day- 
to-day running of the business and the setting and implementation of corporate 
policy, over which he exercises, [sic] complete discretionary authority. He has full 
Page 4 
and absolute authority to bind the company in financial and other agreements, and all 
employees report to him. In addition, he continues to search for opportunities to 
expand the business here in the United States. 
[The beneficiary] continues to use his time to develop and implement the 
management systems necessary for the efficient operation of the company to setup 
[sic] budget limits. He will prepare financials and cost analyses in order to determine 
the efficient use of funds. He prepares monthly reports summarizing business 
activities and the company financials position in areas of income, expenses and 
earnings. He also uses this time very importantly to marketing [sic] the company's 
services, by devising and implementing marketing campaign and special promotions 
to promote the company. He also spends time recruiting, interviewing, hiring and 
training staff. It is his responsibility to supervise the staff in all of the above financial 
and administrative responsibilities. 
On June 24, 2008, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide a detailed description of the beneficiary's proposed position; the names and job 
titles of the beneficiary's subordinates; the gross annual income and number of employees; and a 
copy of the petitioner's 2007 corporate tax return with all schedules. 
In response, the beneficiary, on behalf of the petitioner, provided a letter dated July 21, 2008, stating 
that that he is the top executive within the petitioning entity and further indicating that all of the 
company's employees, either directly or indirectly, report to him, as he has absolute authority in all 
decisions concerning the petitioner. The letter included the names of the petitioner's retail manager, 
retail assistant managerlcashier, and retail cashier, claiming that all three are current full-time 
employees and that all three report directly to the beneficiary. The letter further stated that the 
petitioner temporarily hires 3-5 people on a need basis to assist with the unloading, cataloging, and 
storing of shipments of imported goods. 
The following percentage breakdown of the beneficiary's proposed duties and responsibilities was 
also provided: 
Operations (25%): 
Direct, plan, and implement policies, objectives, and activities of the business in 
order to ensure success of continuing operations, maximize returns on 
investments, and increase productivity. 
Analyze operations to evaluate performance of the company and its staff in 
meeting objectives, and to determine areas of potential cost reduction, program 
improvement, or policy change[.] 
Direct subordinate employees to ensure they remain proactive and responsive to 
existing and potential customers. 
Confer with subordinate employees to discuss issues, coordinate activities and 
resolve problems. 
Manage and review subordinate employees' performance to ensure objectives 
are met. 
Expansion (30%): 
Develop and manage the implementation of marketing campaigns and strategies 
to capitalize on current market demands and to drive sales. 
Develop and implement new business relationship to attract potential customers. 
Analyze potential new investments, zoning and legal issues, international 
shipping laws, requirements and tariffs. 
Negotiate for acquisitions. 
Meet with potential partners, co-investors, franchisors, sellers, brokers, etc. 
Prepare due diligence, review and approve all contracts and agreements. 
Coordinate all public relations efforts. 
Financial Operations (25%): 
Coordinate the development and implementation of budgetary control systems, 
record-keeping and other administrative processes. 
Direct and coordinate the company's financial and budget activities in order to 
fund operations, maximize investments and increase efficiency. 
Analyze financial records to ensure financial goals are achieved. 
Prepare reports concerning activities, expenses, budgets, government 
regulations and other items effecting business operations and services. 
Human Resources (20%): 
Supervise subordinate employees. 
Establish and direct human resources activities, including the approval of 
human resource plans and activities, the selection of other high-level staff, and 
establishment and organization of major departments. 
Hire, fire (if necessary) and discipline subordinate managers and employees. 
Assign or delegate responsibilities to management. 
Develop training manuals and manage training activities of new employees. 
Establish departmental responsibilities, and coordinate functions among 
departments and sites. 
Implement corrective action plans to solve organizational or departmental 
problems. 
After reviewing the petitioner's submissions, the director issued a decision dated August 28, 2008, 
denying the petition. The director questioned how the petitioner, given its limited staffing, can have 
an overwhelming majority of its employees in managerial or executive positions. With regard to the 
claim that 3-5 additional employees are hired on an as-needed basis, the director properly pointed 
out that eligibility must be established at the time of filing. See Matter of Katigbak, 14 I&N Dec. 45, 
49 (Comrn. 1971). The directly ultimately determined that the majority of the beneficiary's time 
would be devoted to non-qualifying tasks. 
On appeal, counsel restates the job description as previously provided by the beneficiary himself and 
asserts that the beneficiary "has full executive and management control" of the U.S. entity. Brief in 
Support of Appeal of Denial of EBl 1-140 Petition, page 5. It appears that counsel is making the 
assertion that the beneficiary's proffered position is managerial and executive. However, a 
beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial 
sections of the two statutory definitions. If the petitioner chooses to represent the beneficiary as both 
an executive and a manager, it must establish that the beneficiary meets each of the four criteria set 
forth in the statutory definition for executive capacity and also the four criteria in the statutory 
definition for managerial capacity. In the present matter, the job description provided by the 
petitioner in response to the RFE (and later repeated by counsel on appeal) fails to make a distinction 
between the two statutory definitions. Counsel further argues that the beneficiary is actually 
employed in an executive capacity, which the director failed to consider when reviewing the 
beneficiary's job description. 
A thorough review of the director's decision, however, indicates that counsel's argument is inherently 
flawed, as the director clearly incorporates portions of the definition of executive capacity when 
explaining the basis for his decision. Namely, not only did the director recite the statutory definition 
of executive capacity on the second page of the denial, but he also expressly incorporated section 
101(a)(44)(B)(i) of the Act in his discussion. In fact, counsel repeated the language used by the 
director, indicating his apparent oversight or lack of understanding of the director's explanation. 
Next, counsel argues that the director placed undue emphasis on the size of the petitioner's support 
staff, citing to Mars Jewelers Inc. v. INS., 702 F. Supp. at 1570, in support of his argument. 
However, upon review, counsel's reliance on Mars Jewelers Inc. v. I.N.S. is misplaced. The court 
clearly states in its decision that the error made by the legacy Immigration and Naturalization 
Service (INS) was applying the 1987 regulations instead of the 1983 regulations to a petition filed in 
1986. Mars Jewelers Inc. v. INS., 702 F. Supp. at 1570, 1575. Thus, while the court found that the 
beneficiary in that matter was not a first-line supervisor under the 1983 regulations, it implied that 
this would not have been the case had the 1987 regulations applied. Id. at 1575. Specifically, the 
court in Mars Jewelers Inc. v. I.N.S. stated the following: 
It is apparent that the INS was inappropriately applying its 1987 regulations to 
this factor. Under the 1987 regulations, one of the requirements of a manager 
is that he "supervises and controls the work of other supervisory, professional 
or managerial employees. . . ." 8 C.F.R. 214.2(1)(l)(ii)(B) (1988). This 
language is not in the 1983 regulations. 
Id. (Footnote omitted). Thus, contrary to the assertions of counsel, as the present petition was filed 
in 2007, it would have been legal error for the director to apply the obsolete 1983 regulations and the 
holding in Mars Jewelers Inc. v. I. N S. to the present matter. 
Therefore, in determining whether the beneficiary is a first-line supervisor or not, it is irrelevant 
under the current regulations whether the beneficiary is supervised by other higher-ranking 
employees. What is relevant is the beneficiary's subordinate staff and whether any are supervisory, 
managerial, or professional (as discussed supra) and whether they are able to relieve him from 
engaging in the day-to-day operations of the business. 
Additionally, in reviewing the relevance of the number of employees a petitioner has, federal courts 
have generally agreed that USCIS "may properly consider an organization's small size as one factor 
in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. US. 
Citizenship and Immigration Services, 469 F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 
41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 
2003). Thus, the director's consideration of the petitioner's staffing at the time of filing was 
reasonable and even necessary for the purpose of gauging the company's overall ability to relieve the 
beneficiary from having to primarily perform non-qualifying tasks. It is simply unrealistic to claim 
that the beneficiary would be primarily making policy decisions and directing the management of an 
organization when the organization lacks sufficient employees to actually carry out the daily 
operational tasks. That being said, 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. 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). 
Thus, while the beneficiary's placement within the petitioner's organization and his overall 
discretionary authority with respect to personnel management and decision-making are consistent 
with a position as a multinational manager or executive, the petitioner should not lose focus on the 
crucial role the beneficiary's actual daily job duties play in determining his eligibility to benefit from 
the immigrant classification being sought in the present matter. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. 8 C.F.R. § 204.50)(5). Precedent case law has 
firmly established that the actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 11 03, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir.1990). In the present matter, the job description provided by the petitioner in response to the 
RFE lacks the necessary degree of detail to establish what specific tasks the beneficiary would 
perform on a daily basis. While the petitioner claimed that 25% of the beneficiary's time would be 
attributed to operations, the underlying responsibilities fail to convey an understanding of the 
specific tasks that fall within this broad category. Specifically, the petitioner stated that operations 
involves directing, planning, and implementing policies and objectives, which is merely paraphrased 
language used in the statutory criteria listed under executive capacity. See sections 101 (a)(44)(B)(ii) 
of the Act. Under the same heading, the petitioner stated that the beneficiary would direct 
subordinate employees and manage subordinate employees. As no specific tasks have been cited to 
explain how the beneficiary would accomplish either of these goals, the AAO is unable to make a 
clear distinction between these two items. The various job responsibilities listed under the heading 
of financial operations are equally ambiguous and also fail to convey the nature of the underlying 
tasks the beneficiary would be required to perform. For instance, the petitioner used broad terms 
such as "coordinate" and "direct," which convey the beneficiary's level of authority, but fail to clarify 
the means by which the coordination and direction would be implemented. 
The petitioner also indicated that 30% of the beneficiary's time would be devoted to expansion, 
including developing and managing the implementation of marketing campaigns. However, as there 
are no marketing employees listed within the petitioner's organization at the time of filing, it is 
unclear who, if not the beneficiary, would actually carry out the underlying marketing-related tasks. 
The petitioner further stated that the beneficiary would develop and implement new business 
relationships, engage in negotiations for acquisition, and prepare contracts, none of which have been 
clearly established as being qualifying tasks. 
Lastly, the petitioner claimed that the remaining 20% of the beneficiary's time would be devoted to 
human resource responsibilities, which include supervising subordinate employees. However, as the 
petitioner has failed to establish that the beneficiary's subordinates are supervisory, professional, or 
managerial employees, the AAO cannot conclude that any of the tasks associated with personnel 
management can be deemed as qualifying. Additionally, the AAO would like to reiterate that the 
petitioner's reference to portions of the definition of managerial capacity and executive capacity is 
unacceptable, as it implies that the beneficiary's proffered position is a hybrid of the two. The 
description that the petitioner has provided does not clearly distinguish between managerial and 
executive capacity and therefore fails to establish that the beneficiary's position fits either or both of 
the statutory definitions. 
Thus, in light of the above deficiencies with regard to the petitioner's organizational structure and 
description of job duties, the AAO cannot establish that the beneficiary would primarily perform 
tasks within a qualifying managerial or executive capacity. For this reason, the instant petition does 
not warrant approval. 
Furthermore, 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. tj 204.50)(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 to the United States as a nonirnrnigrant to work for the same employer. In the 
instant matter, the record lacks sufficient information about the beneficiary's position abroad to 
warrant the conclusion that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity. 
Second, 8 C.F.R. 5 204.5(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 Form 1-140. The regulation at 8 C.F.R. tj 204.5(j)(2) 
states that doing business means "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." In the present matter, the petition was filed on July 30, 2007. Thus, according to the above 
regulatory provisions, the petitioner must establish that it had been doing business as of August 
2006. While the record contains the petitioner's purchase invoices for January, February, and March 
2007, all of which are within the relevant 12-month time period, there is no evidence that the 
petitioner had been doing evidence from August through December 2006 and fiom April through 
July 2007. As such, the AAO cannot conclude that the petitioner was conducting business on a 
"regular, systematic, and continuous'' basis during the entire 12-month period prior to filing the instant 
Form I- 140. See id. 
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), afd, 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 AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
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. tj 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.