dismissed EB-1C Case: Petroleum Trading

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LIN 06 12351682
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, I?C 20529
U.S.Citizenship
and Immigration
Services
Date: OCT 09 2007
IN RE: 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. § 1153(b)(l)(C)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe 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.
~~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 was organized as a limited liability company in the state of Indiana. It seeks to employ the
beneficiary as its president and chief executive officer. 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 two independent grounds of ineligibility: 1) the petitioner failed to establish that
the beneficiary was employed abroad in a managerial or executive capacity; and 2) the petitioner failed to
establish that it would employ the beneficiary in a qualifying managerial or executive capacity.
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments.
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 two issues in this proceeding call for an analysis of the beneficiary's job duties during his employment
abroad as well as his proposed job duties in his prospective position with the U.S. petitioner.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides:
The tenn "managerial capacity" means an assignment within an organization in which the
employee primarily--
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(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 ifno 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
professiona1.
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 a letter dated March 15,2006, which was submitted in support of the Form 1-140, the petitioner provided
lists of the beneficiary's foreign and U.S. job responsibilities. The petitioner provided a second set of
breakdowns, each accompanied by a percentage breakdown, in a letter dated June 27, 2006, which was part of
the petitioner's response to the director's AprilS, 2006 request for additional evidence (RFE).
In a decision dated September 26, 2006, the director denied the petition, reciting each of the breakdowns and
discussing their deficiencies in establishing the petitioner's eligibility.! The director focused on the lack of
detail in the petitioner's breakdowns, stating that the petitioner provided broad job responsibilities without
I As the director provided the position description breakdowns in their entirety, the AAO need not repeat this
information in the present discussion.
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identifying specific duties that explain how the beneficiary fulfilled his responsibilities abroad and how he
would fulfill the responsibilities in his proposed U.S. position with the petitioning entity.
On appeal, counsel asserts that the beneficiary's foreign and ·proposed U.S. positions can be deemed as
"managerial and/or executive," suggesting that the two statutory terms are interchangeable. In support of
counsel's assertions, the petitioner provided a letter dated October 26, 2006 from its office manager, who
provided the following additional description of the beneficiary's proposed position in the United States:
• 40% Sales and Marketing: The key focus of building a new business is sales and
marketing, and for this reason [the beneficiary] will allocate the majority of his time to
supervising this area of the organization. [The beneficiary] has direct control and
supervision over both the [m]arketing and [s]ales [d]epartments. He seeks to ensure
maximization of return on investment, while overseeing the implementation of marketing
strategies and monitoring marketing resource allocation. [The beneficiary] will directly
manage and oversee the employees and operational aspect[s] of the [m]arketing
[d]epartment. [He] will collaborate on strategic matters, such as the marketing budget,
advertising, media relations, customer service and customer satisfaction to ensure that sales
and marketing goals are being met. [He] will supervise pricing analysis, competitor
analysis and development of a unique value proposition. Our sales focus will be on
locating clients on the down stream side of the oil refineries in the North American
region. . .. Our marketing team will also look at new markets and new product ranges that
we can incorporate under our brand and begin trading in petroleum commodities ....
• 20% Shipping and Logistics: [The beneficiary] provides direct supervision and control
over the [s]hipping and [I]ogistics department of the company.... [The beneficiary] will
deal directly with setting the goals of getting the product to the customer on time and at a
suitable price. As [the beneficiary] has firsthand knowledge of this area, [he] will supervise
and assist in the rate negotiation process, transportation mode selection, and supply chain
normalization, demand planning, and shipment information management. Current goals set
by [the beneficiary] are to find cost effective shipping lanes to and from the U[.]S[.]A. ...
• 10% Business Strategy and Business Process Management: [The beneficiary] will have
full discretion to layout the company's business strategy and long-term plan. [He] will
create a roadmap for the organization and direct employees in meeting the long-range goals
and benchmarks he has created for the company. [He] will oversee and ensure continuous
strategy formulation and implementation of adequate processes.
• 10% Accounting, Banking and Financing: The accounting and bookkeeping has been
completely outsourced . . .. [The beneficiary] will keep regular meetings with AGS to
supervise this task and to ensure that all business fmancial statements are kept current and
presentable at all times. [He] will maintain direct contact with AGS so that he is able to set
reasonable goals and strategic plans based on the current fmancial information of the
company. [The beneficiary] is charged with making high level financial decisions for the
company based on this information. [He] will also maintain a close working relationship
with the bank in order to keep the bank informed on the company's financial progress and
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activity. [He] will be involved with securing adequate financing for new projects in order
to improve the sustainability of the business.
• 10% Human Resources: All human resources activities will be handled by the [h]uman
[r]esources [m]anager, which position is directly supervised by [the beneficiary]. [He] will
direct and assist the [h]uman [r]esources [m]anager in the recruitment of new candidates,
and has the ultimate authority to hire, fire and recommend personnel actions. As
[p]resident and CEO, [the beneficiary] will create and establish all company policies and
procedures, and will supervise the [h]uman [r]esources [m]anager in evaluating and
implementation of company policies and procedures. He will also supervise and assist in
training of all new employees by the [h]uman [r]esources [m]anager.
• 5% Legal: All legal matters have been outsourced .. " [The beneficiary] will be directly
involved with all legal matters of the company to ensure that he has full control and
knowledge of all legal issues.
• 5% Technology Implementation and Management: [The beneficiary] will maintain control
over technology implementation and management. He will supervise and facilitate
equipment selection and purchases, budgets and ensure constant management support for
the current IT landscape in the company. [The beneficiary] has identified the need for a
technologically strong organization to track and manage shipments by sea and by air. The
technology strategy is currently being implemented . .. under [the beneficiary]'s
supervision.
While the supplemental description provides an additional overview about the beneficiary's role within the
petitioning entity, his actual day-to-day job duties, i.e., the means for carrying out the overall objectives,
remain unclear. For instance, while the petitioner stresses the importance of sales and marketing and
indicates that 40% of the beneficiary's time would be allocated to this aspect of the business, the petitioner
does not explain how the beneficiary will maximize the business profits, oversee employees, and ensure that
the sales and marketing goals are met. The petitioner also fails to allocate specific duties to the beneficiary
with regard to locating clients in the North American region, which is one of the petitioner's ultimate goals.
The petitioner allocates another 20% of the beneficiary's time to shipping and logistics. Again, while the
petitioner discusses the company's goals as well as the beneficiary's supervisory role with regard to shipping
and logistics, it does not identify specific duties the beneficiary would perform in assisting the company
realize the goals he sets.
With regard to the beneficiary's duties abroad, the petitioner provided a letter dated October 25,2006 from the
foreign entity's director, who provided the following percentage breakdown:
• 5%--Banking, Accounting and Financing: [The beneficiary] attended meetings with the
accountants to ensure financial statements are accurate, current, and presentable at all
times. Keeping on top of these numbers helped [the beneficiary] to set realistic long-term
goals and make necessary changes for future business. [The beneficiary] maintained a
strong relationship with our business banker to secure assistance on all of our banking
needs. He also supervised and managed the [f]inancial [d]irector of the organization. All
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financial budgets and capital expenditure allocations set by the [f]inancial [d]irector were
approved and signed offby [the beneficiary].
• 5%-Asset and Equipment Management: [The beneficiary] supervised and directed the
[f]leet [m]anager who operated the transportation fleet. Our transportation fleet includes
ten road tankers for transportation of liquid bulk into our manufacturing facility and also
delivery of our finished products ... to our client. [The beneficiary] supervised the [f]leet
[m]anager who was in charge of transportation and management of 220 x 20 foot shipping
containers .... Vehicle replacement and new vehicle selection, lease versus buy options,
redundant vehicle sales, vehicle life cycle management, imd efficiency monitoring were all
part of the [f]leet [m]anager's portfolio, who in turn was managed by [the beneficiary] to
ensure that all necessary key point indicators were met and most value was obtained out of
each working asset.
• lO%--Legal: [The beneficiary] had full control and knowledge of all legal matters. This
included all contract negotiations and business disputes. [He] worked very closely with ...
legal counsel to the operation.
• 30%--Sales and Marketing: [The beneficiary] supervised and directed the operational
aspects of the [s]ales and [m]arketing team to maximize return on investment, implement
and monitor marketing resource allocation, and ensure collaboration.... [The beneficiary]
managed the employees and operational aspects of sales and marketing of our products, and
ensured that goals were being met. Our marketing goals were to get our product
specifications and sample products into the hands of our clients design and engineering
teams. [The beneficiary] supervised pricing analysis, competitor analysis and development
of unique value proposition. He set strategic goals and supervised the marketing budget,
advertising, media relations, customer service and customer satisfaction.
.20%--Business Strategy and Business Process Management: [The beneficiary] had sole
discretion in setting the long-term business policies and benchmarks for the business. A
large part of his time allocated to business strategy was implementing a "One Call"
operation that handled production, supply, and logistics through our supply chain net work
[sic] eliminating customer concerns and worries about delay and late deliveries. . .. A
black economic empowerment strategy has also been implemented to adhere to the Oil
Industry Charter and uplift the underprivileged. [The beneficiary] worked to ensure
continuous business strategy formulation and implementation by directing the business
operations of the organization. He made sure that the roadmap for the organization was
realistic and that adequate processes were implemented.
• 5%-Technology Implementation and Management: [The beneficiary] facilitated the
implementation of new technology to stay current and keep ahead of competitors. With a
clear understanding of all business processes, [he] directed and assisted the [0]perations
[d]irector in technology equipment selection and purchases and ensured constant
management support of the IT landscape. [The beneficiary] had the final say on all
technology changes within the organization.
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• 10%--Human Resources: [The beneficiary] supervised the [h]urnan [r]esources [m]anager
and assisted in the interview to ensure that ideal candidates were hired. [He] provided
recommendations in the hiring and firing of personnel. [He] set policies and goals for
employees and directed the [h]uman [r]esources manager to carry out the goals and policies
of the firm and maintained a high level of adherence to the company policies and
procedures.
• 10%--Production, Operations and Manufacturing: [The beneficiary] supervised the
[p]roduction [m]anager and the [o]perations [d]irector who plan, direct, and coordinate the
production activities required to produce our range of industrial grade products.
Collaboration between [the beneficiary] and the [p]roduction [m]anager ensures the
production goals of the organization are being met and analysis of the plant's personnel and
capital resources to select the best way of meeting the production goals. [He] was also
involved in the determination of which machines will be purchased and released allocated
funds for machinery and equipment acquisition.
• 5%-Supplier Contract and Rate Negotiation: To ensure company profitability is met, [the
beneficiary] was involved in supplier contract negotiations along with the [p]roduction
[m]anager and [f]inancial [d]irector. Local supply prices are compared with international
supply prices and final sign off was given by [the beneficiary] on the raw material
purchasing budget. Annual budgets are set and fixed supply rates are negotiated at the
annual rate meeting .... [The beneficiary], the [p]roduction [m]anager and the [f]inancial
[d]irector attended these meetings[.]
Similar to the petitioner's description of the beneficiary's proposed employment, the above description
provides a very broad overview of the beneficiary's supervisory responsibilities without conveying an
understanding of the actual duties performed on a daily basis. For instance, 30% of the beneficiary's time was
purportedly allotted to sales and marketing. Although the foreign entity's director states that the beneficiary
supervised and directed the operational aspects of sales and marketing, it is unclear what those operational
aspects were or what actual duties the beneficiary performed, i.e., how he managed employees or what means
were employed to ensure that the sales and marketing goals were met. Additionally, the director indicated
that another 20% of the beneficiary's time was allotted to business strategy and business process management,
which involved implementing the "one call" concept. No details were provided, however, to clarify what
specific steps the beneficiary took to help achieve this company goal. While another 10% of the beneficiary's
time was allotted to supervising the production manager and the operations director, the director did not
specify the specific duties entailed in such management.
In examining the executive or managerial capacity of the beneficiary, CIS will look first to the petitioner's
description of the job duties. See 8 C.F.R. § 204.5(j)(5). 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. Precedent case law further conveys the need for a detailed 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), afJ'd, 905 F.2d 41 (2d. Cir. 1990). In the present matter, at least 60% of
the beneficiary's time with regard to the foreign and U.S. positions was spent and would continue to be spent
performing tasks that are mostly undefined. The petitioner simply failed to include the necessary level of
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detail to determine that the primary portion of the beneficiary's time has been and would be consumed
performing tasks of a qualifying nature.
While the AAO acknowledges the beneficiary's submission of a statement from valuating
the beneficiary's employment, the AAO is not required to accept or may give less weight to that evidence.
Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). Despite expert opinion,
which he claims he derived from evidence that is included in the present record as well as his interview of the
beneficiary, his statement does not convey any further detail regarding the beneficiary's duties than was
provided by the petitioner. _stresses the beneficiary's supervisory role in overseeing processes,
departments, and employees. However, the beneficiary's actual duties remain unclear and require further
explanation in order to fully ascertain what exactly the beneficiary did abroad on a daily basis and what
specific duties he would perform as part of his proposed position with the U.S. petitioner. Furthermore, Dr.
reference to the beneficiary as a manager and an executive, without further explanation of the
beneficiary's duties, suggests a lack of understanding of the distinction between the statutory definition for
managerial capacity, as defined in section 101(a)(44)(A) ofthe Act, and the statutory definition for executive
capacity, as defined in section 101(a)(44)(B) of the Act.
Thus, in considering the evidence submitted, the AAO cannot determine that the beneficiary primarily
perfonned managerial and/or executive duties during his employment abroad, or that he would do so in his
proposed position with the U.S. entity. While the petitioner has illustrated organizational hierarchies within
which a managerial or executive position may exist, it is unclear that the duties primarily performed by the
beneficiary abroad and those he would perform in the United States are primarily within a qualifying
managerial or executive capacity. Neither the beneficiary's position title nor the companies' organizational
structures relieve the petitioner from having to provide detailed job descriptions. As this necessary
information has not been provided in the present matter, this petition cannot be approved.
Furthermore, the record does not support a finding of eligibility based on at least two additional grounds that
were not previously addressed in the director's decision.
First, 8 C.F.R. § 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying relationship
with the beneficiary's foreign employer. In the present matter, the petitioner claims that the foreign entity is
its sole member and, therefore, is the petitioner's sole owner.. The petitioner also claims that the beneficiary
owns 80% of the foreign entity. However, the record shows that the beneficiary filed a Form 1040 complete
with a Schedule C, reporting all of the petitioner's income. This suggests that the beneficiary, rather than the
foreign entity, may be the majority owner of the petitioner. While the petitioner may nevertheless establish
the existence of a qualifying relationship with this alternative ownership scheme, the fact that the initial claim
is inconsistent with documentation submitted gives rise to doubt as to the petitioner's credibility. It is
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence.
Any attempt to explain or reconcile· such inconsistencies will not suffice unless the petitioner submits
competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA
1988). 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. Id.
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 Form 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 firm,
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corporation,or other entity and does not include the mere presence of an agent or office." The petitioner claims
to be in the business of distributing lubricating products. However, the record lacks any sales or shipping
invoices to document its business transactions during the requisite one-year period. While the petitioner
submitted its income statements for 2004-2006, this documentation does not establish that the petitioner has
been and continues to conduct business on a "regular, systematic, and continuous" basis. 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), affd, 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, affd, 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. § 1361. The petitioner has not
sustained that burden.
ORDER: The appeal is dismissed.