dismissed EB-1C Case: Operations Management

(b)(6)
DATE: MAR 2 7 2014 
IN RE: Petitio ner: 
Beneficiary: 
OFFICE : TEXAS SERVI CE CENTER 
U.S. I?epartment of Homeland Security 
U.S. Citiz enship and Immigr ation Servi ces 
Admini strative A ppea ls Office (AAO ) 
20 Massachusetts Ave. N.W ., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immi grant Petition for Alien Worker as a Multinati o nal Exe cutiv e o r Man ager Pursu ant to 
Secti o n 203(b) (l)( C) of the Immi grati o n and Nation ality Act , 8 U.S. C. § 1153 (b) (l)(C) 
ON BEHALF OF PETITIONER: 
INS TRUCTIONS : 
Enclosed pl eas e find the dec isio n of the Administr ative Ap peal s Office (AAO) in your cas e. 
Thi s is a non -prece de nt decisio n. T he AAO does no t anno unce new con struct io ns o f l aw no r establish age ncy 
poli cy throu g h n o n-pr eced ent decisi o ns. If yo u b elieve the AAO incorr ectly appli ed curr ent law or poli cy t o 
your case or if yo u see k t o present new facts fo r c o nsid erati o n, yo u m ay file a mo tio n t o reconsider or a 
mo tio n t o reo pen , res pecti vely. An y mot ion must be f iled on a No tice of App ea l or Moti o n ( Form I-2 90B ) 
within 33 d ays of the dat e of this decisi o n. Plea se review the Form I-290B instruction s at 
http://www.uscis.gov /forms for the latest information on fee, filing location , and other requirements. 
See also 8 C. F.R. § 103.5. Do not file a motion directl y with the AAO . 
Ron Ro se nberg 
Chi ef, Admini strative App eals Offi ce 
www.uscis.gov 
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DISCUSSION: The preference vrsa petttron was denied by the Director, Texas Service Center. The 
petitioner appealed the director ' s decision to the Administrative Appeals Office (AAO). The AAO withdrew 
the director's decision and remand ed the matter to the service center for further action and a new decision, 
with instructions to certify the decision to the AAO if the decision is adverse to the petitioner. See 8 C.F.R. 
§ 103.4(a)(l). The director complied with those instructions and issued a new decision , which has been 
·certified to the AAO for review . The AAO will affirm the director's decision . 
The petition er is a Florida limited liability company that seeks to employ the benefici ary in the United States 
as irs Regional Operations Manager. Accordingly, the petitioner endeavors to classify the ben eficiary as an 
employment-based immigr ant 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 on February 13, 2012 concluding that the petitioner failed to establish its 
ability to pay the beneficiary's proffered annu al w age of $50,000. 
On Marc h 13, 20 12 in support of a motio n to reop en and reco nside r the dec ision , the petitioner subm it ted a 
copy of its IRS Form 1065, U.S. Return of Pa rtn ership Incon1e, for the 2011 tax yea r, as serting that this 
do c umen t w as unava ilab!C for submission at the lime the petitio n was filed in Au gust 201 1, or at the time the 
peti tioner respond ed to the dir ec tor 's request for additional ev ide nce (RFE) in December 2011. 
On Jun e 26 , 2012 , the direc to r dismi ssed the motion fi nding that pet ition er' s filing fai led to meet the 
req uirement s of a motio n to reo pe n. ·rhe AAO later revi ewed the director's decision on appeal and 
det ermined that while the dir ector appr opri ately re lied upo n the peti tione r's 20 10 IRS Form 1065 in the 
abs e nce of the comp any 's 20 11 tax return, the petitioner pro perly submitted the 2011 Form 1065 as new 
evidenc e on motion. 
In a decis ion dat ed April 26, 20 13, the AAO w ithdrew the dir ector's decision, concluding that the petiti o ner 
estab lished its abilit y to pay and thus ov erc ame the sole ground c ited as the basis for de nial. The AAO 
rema nded the matter to the T exas service ce nter instr uct ing the director to give furth er consid eration to 
eligibility factors that 
were not previou sly consid ered. Specifica lly, the AAO det ermi ned that the rcco rcl, at 
the time of the appeal , did not establ ish lhal: (1) the be neficiary was employe d ab road for the requisit e one 
year during the qualify in g three-year rime period ; (2) the pet itioner and th e benefic iary' s for e ign em ployer 
hav e a quali fying rela tion ship; and (3) the benen ciary' s prop osed U.S. ernployrnent would be in a qualif) ri ng 
man age rial or execu ti ve capacity. 
I. The Law 
Section 203(b) of the Act state s, in pertinent part: 
(1) Priority Work ers. --Visas shall first be made available . .. to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C) : 
(b)(6)
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* * * 
(C) Certain Multinati o nal Executiv es and Manag ers . - An alien is 
des cribed in this subpar agraph if the ali en, in the 3 years preceding the Lime 
of the alien 's application for c lassil"icat ion and admis sio n into t he Un ited 
States und er this subparagraph, has bee n employed for at least 1 year by a 
firm or corporation o r o ther lega l e ntity or an affili ate or subsidiary thereof 
and who seeks to enter the United States in order t o continue to render 
se rvice s to the sa me employer or to a subsidiary or affili ate thereof in a 
capacity that is man agerial or executive. 
The language of the statute is specif ic in limi ti ng this provision to only those executive s or man age rs who 
hav e previo usly worked for the firm, co rporation or ot her leg al entity, or an affiliate or s ubs idiary of that 
entity , and are coming to the United States to work fo rthe sa me e ntit y, o r its affiliate or subs idi ary. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 110l( a)(44)(A) , provid es: 
The term "man ager ial capacity" mean s a n ass ignm e nt within an organization tn which the 
employee prim arily--
(i) manag es the organization , o r a dep artment, subdivi sio n, functi o n, o r 
co mponent of the o rga nization ; 
(ii) supervises and contr ols t he work of other superviso ry, pro fess ional, or 
man agerial empl oyees, or man ages an esse ntial functi o n within the 
organization, or a departm ent or subdi vision of the o rga niz at ion ; 
(iii) if another employ ee or other employees are dir ectly supervised, has the 
authority to hire a nd fi re o r r ecomm e nd those as well as ot her perso nnel 
actions (such as pro mo tion a nd leave authorization), or if no ot her employ ee 
is directly supervis ed, functions at a se nior level within the organiz ational 
hierarchy or with res pect to the f unction managed; and 
(iv) exe rcises disc retion over the da y-to-da y operations of the activity o r functi o n 
for which the employee has authority. A fir st-line superviso r is not 
considered to be ac ting in a man agerial capacity merely by virtue of the 
superviso r's supervi so ry duties unless the employees s upervis ed are 
professional. 
Section 10l(a)(44)(B) of the Act , 8 U.S.C. § 110l(a)(44)(B), prov ides: 
The term "exec utive ca pac ity" mea ns an assig nment within an organization 111 which the 
employ ee prim arily--
(b)(6)
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(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. 
Additionally, the regulation at 8 C.F.R. § 204.5(j)(3)(i) states, in part , the following: 
(A) If the alien is outside the United States, in the three years preceding the filing of the 
petition the ali en has been employed outside the United States for at least one year in 
a managerial or executive capacity by a firm or corporation , or other legal entity, or 
by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas[.] 
II. The Issues on Certification 
On June 18, 2013, the dir ector issued an RFE in compliance with the instructions in the AAO's April 26 , 
2013 decision. In light of the findings and observations made in the AAO's decision, the RFE outlined the 
three key issues of concern. Specifically, the director instructed the petitioner to provide evidence 
establishing the ownership and control of the U.S. and foreign entities. The director also asked for 
documentation pertaining to the beneficiary's foreign employment, including evidence establishing that the 
beneficiary was employed in a qualifying managerial or executive capacity as well as evidence showing that 
the beneficiary was employed abroad by a qualifying entity for at least one year out of the three years 
immediately prior to the beneficiary 's nonimmigrant entry to the United States. Lastly , the director instructed 
the petitioner to provide evidence demonstrating that the beneficiary would be employed in the United States 
in a qualifying managerial or executive capacity, including the U.S. entity 's organizational chart listing all 
employees by name and position title and providing the employees ' respective job descriptions and 
educational credentials, a supplemental job description listing the beneficiary 's daily job duties and the 
percentage of time she would dedicate to each of her assigned tasks, and documents of contract labor if the 
(b)(6)
Page 5 
petitioner claims that contract labor was used. The petitioner was given eighty four days in which to respond 
to the director's RFE. It is noted that failure to submit requested evidence that precludes a material line of 
inquiry sha!J be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
The record shows that the petitioner did not respond to the director's RFE. Accordingly, in light of the 
regulation at 8 C.P.R. § 103.2(b)(13) , the director chose to deny the petition summarily as abandoned based 
on the petitioner's failure to respond to the RFE and based on the totality of the circumstances, which took 
into account the petitioner's failure to meet certain eligibility criteria. In addressing the documentation on 
record, the director reviewed the observations made by the AAO, including the inconsistent evidence of the 
petitioner's ownership, the lack of probative evidence documenting the beneficiary's time period of 
employment abroad, and the overall absence of detailed information discussing what job duties the 
beneficiary would perform in her proposed position with the U.S. entity. 
As indicated above, the AAO expressly stated in its decision that the record lacked sufficient evidence to 
support a favorable finding based on the anomalies and lack of sufficient evidence with regard to the three 
grounds of ineligibility as described above. In accordance with the AAO's determination, the director issued 
an RFE expressly instructing the petitioner to provide evidence in order to facilitate a comprehensive review 
of any information pertaining to these evidentiary deficiencies. As the petitioner has not provided any 
evidence or information addressing the three grounds for denial, the AAO finds that the petitioner has failed 
to overcome the adverse conclusions cited in the director ' s decision and the petition was properly denied. 
Accordingly, the petition wi!J 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 director's decision dated October 21, 2013 denying the visa petition is affirmed. 
The petition wiJI be denied.