dismissed EB-1C Case: Pharmacy

(b)(6)
DATE: JUN 1 7 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachu setts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER : SELF -REPRESENTED 
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 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)(l)(i) requires any motion to be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
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 pharmacy which seeks to employ the beneficiary as its President. 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. § 1153(b)(l)(C), as a 
multinational executive or manager. 
On March 25, 2010, the director denied the petition concluding that: (1) the petitioner failed to 
establish the beneficiary 
came to the United States to continue to render services to the same employer 
in a managerial or executive capacity, and (2) the petitioner failed to establish that it would employ 
the beneficiary in a managerial or executive capacity. 
Section 203(b) ofthe 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 sub~idiary 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 director noted in his decision that the beneficiary entered the United States in H-lB status and 
was employed by The director also noted that at the time the beneficiary 
first entered the United States in H-1B status, _ was not related to the 
beneficiary's foreign employer. The petitioner contends the petitioner is a successor-in-interest of 
_ and thus, the beneficiary did enter the United States to render services to 
the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive. 
However, the foreign employer did not purchase until December 20, 
2007, over one year after the beneficiary entered the United States in H-1B status. 
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 
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subsidiary. The record shows that the petitioner last entered the United States on September 29, 2006 
as an H -1 B nonimmigrant to work for _ At that time, 
did not have any relationship with the beneficiary's foreign employer. Thus 
he did not enter 
the United States for the purpose of "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." 
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)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.5U)(2) 
(providing 
defmitions of the terms "affiliate" and "subsidiary"). In this case, the petitioner did not 
establish that the beneficiary's employer when he first entered into the United States had a qualifying 
relationship with the beneficiary's foreign employer. 
Thus, the petitioner did not establish that the beneficiary is a priority worker as defined in Section 
203(b) of the Act. 
On appeal, the petitioner also states that the ''time spent by beneficiary in H-lB status in the United 
States must be viewed as interruption of employment with overseas subsidiary." However, the 
beneficiary was not in the United States on behalf of the same employer or on a brief trip for business 
or pleasure. As noted above, when the beneficiary first entered the United States, he was employed 
by a company that was not connected to the foreign company. A qualifying relationship with the 
petitioner and the foreign company did not occur until December 22, 2007, over one year after the 
beneficiary entered the United States. 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary had at least 
one continuous year of full-time employment abroad with a qualifying organization within the three 
years immediately preceding the filing of the petition. 
The director asserts that proper time period to review is the beneficiary's employment abroad in light 
ofthe fact that it took place within three years of the beneficiary's lawful admission into the United 
States in an H-lB nonimmigrant visa category. The AAO will withdraw the director's statements 
regarding the three-year time period reviewed for the instant case since the director used the incorrect 
three-year time period in his analysis. 
The beneficiary was employed by the foreign company in the position of General Manager from July 
2004 until March 2006. The beneficiary entered the United States in H -1 B nonimmigrant 
classification on September 29, 2006. This petition was filed on August 17, 2009. The petitioner 
contends that the beneficiary possesses at least one year of qualifying experience, from July 2004 
through March 2006, outside the United States as General Manager of the foreign company, a 
managerial position, within 3 years before his entry into the United States as an H-1B nonimmigrant. 
(b)(6)
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The beneficiary did not, however, enter the United States in H-lB nonimmigrant classification to 
render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. The petitioner did not establish that at the time the beneficiary entered the 
United States to work in H-1B nonimmigrant classification as an Intern for the 
petitioning company had 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)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.5(j)(2) (providing 
defmitions of the terms "affiliate" and "subsidiary"). In this case, the petitioner did not establish that 
the beneficiary's employer when he first entered into the United States has a qualifying relationship 
with the beneficiary's foreign employer. 
Furthermore, even if the petitioner could prove that the beneficiary entered the United States as an H­
lB nonimmigrant to work with the beneficiary's foreign employer, or a company that has a qualifying 
relationship with the foreign company, it still cannot establish that the beneficiary was working in a 
managerial or executive capacity when he was in the United States in H-lB nonimmigrant 
classification. 
The Service does not feel that Congress intended that nonimmigrant managers or executives who have 
already been transferred to the United States should be excluded from this classification. Therefore, 
the regulation provides that an alien who has been a manager or executive for one year overseas, 
during the three years preceding admission as a nonimmigrant manager or executive for a qualifying 
entity, would qualify." See 56 Fed. Reg. 30703, 30705 (July 5, 1991) (emphasis added). 
The beneficiary was employed as an intern when he was frrst employed in the U.S. in H-1B 
nonimmigrant classification. The petitioner did not provide a job description for this position and did 
not establish that the beneficiary was in a managerial or executive capacity. 
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 defmed 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. 
The defmitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the beneficiary performs the high-level responsibilities that are specified in the defmitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified 
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responsibilities and does not spend a majority ofhis or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Upon review ofthe petition and evidence, the petitioner has not established that the beneficiary was 
employed in a managerial or executive capacity when he entered the United States in H-1B 
nonimmigrant classification. 
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.