dismissed EB-1C Case: Production Management

• 
identifying data deleted to 
prevent clearly unwarr~ted 
invasion of personal pnvacy 
PUBLIC COpy 
DATE: 
AUG 30 2012 
INRE: 
OFFICE: TEXAS SERVICE CENTER 
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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.c. § lI53(b)(I)(C) 
ON BEHALF OF PETITIONER: 
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 law was inappropriately applied by us in reaching our 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 request 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 lei) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief. Administrative Appeals Office 
www.uscis.gov 
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 Texas corporation that seeks to employ the beneficiary as its production/quality control 
manager. 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)(l)(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated March 26, 2010, which contained 
information pertaining to the petitioner's eligibility, including an overview of the petitioner's business and 
descriptions of the beneficiary's foreign and proposed employment. The petitioner also provided supporting 
evidence in the form of financial, business, and corporate documents. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a notice of intent to deny (NOlD) dated July 20,2010 informing the petitioner of 
various evidentiary deficiencies. The director determined that the record lacked evidence showing that (I) the 
beneficiary was employed abroad in a qualifying capacity; (2) the petitioner has a qualifYing relationship with 
the beneficiary's foreign employer; (3) the petitioner was doing business for one year prior to filing the 
petition; (4) the beneficiary would be employed in the United States in a qualifYing capacity; and (5) the 
petitioner has the ability to pay the beneficiary's proffered wage. 
The petitioner provided a response, which included a list of the responsibilities that are assigned to the 
beneficiary in his capacity as functional manager of the petitioner and its U.S. parent corporation. The list 
was accompanied by a percentage breakdown of the job duties the beneficiary would be expected to perform 
for both entities. The job description did not distinguish between the beneficiary's roles and positions within 
the two separate entities and thus failed to indicate how much of the beneficiary's time would be allocated to 
the job duties he would carry out for the petitioning entity. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity. The director 
therefore issued a decision dated September 24, 2010 denying the petition based on three of the five 
grounds-grounds 3, 4, and 5-all of which were previously cited in the NOlD. 
On appeal, counsel, on behalf of the petitioner, disputes the director's decision asserting that the director 
failed to properly weigh the evidence presented by the petitioner in response to the NOlD. 
The AAO finds that counsel's assertions are not persuasive and fail to overcome the director's denial. The 
AAO's determination notwithstanding, the record does not support the director's finding with regard to 
grounds three and five in the denial. Therefore, these two findings are hereby withdrawn and the discussion 
below will focus on the remaining finding that dealt with the beneficiary's employment capacity in his 
proposed position with the U.S. entity. 
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): 
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* • * 
(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 I year by a finn 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. 
As previously noted, the primary concern to be addressed in this proceeding is whether the pehtloner 
submitted sufficient evidence to establish that the beneficiary's proposed employment with the U.S. entity 
would be within a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § I 10 I (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 
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supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. § 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization In which the 
employee primarily--
(i) directs the management ofthe 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 examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO also deems it appropriate to 
consider other relevant factors, such as the petitioner's organizational hierarchy, which shows the complexity 
of a given entity and the beneficiary's placement in relation to other employees, as well as the petitioner's 
overall staffing, which allows the AAO to gauge the extent to which the petitioner is able to relieve the 
beneficiary from having to focus the primary portion of his time on the performance of non-qualifying 
operational tasks. 
The AAO finds that the beneficiary'S job description does not establish that the U.S. position would entail the 
performance of primarily managerial or executive tasks. Although the majority of the job description 
contains terminology that conveys a sense of the beneficiary'S managerial authority, the beneficiary's actual 
job duties are not clearly defined. For instance, the petitioner did not explain what specific tasks are entailed 
in managing, coordinating, and directing production control of the decoration department as it is unclear how 
the beneficiary would supervise the handling and installation of materials used to decorate the petitioner's 
products. The petitioner also failed to specify how the beneficiary would oversee the manager of the 
engineering decoration team or why the beneficiary would be tasked with managing and training staff on the 
decoration department's use of machinery when the decoration team seemingly has an engineering manager 
overseeing their work. 
The petitioner was also vague in describing which employees the beneficiary would be overseeing, referring 
to the subordinates generally as "staff." The fact that an individual manages others does not necessarily 
establish that the position meets the definition of managerial or executive capacity within the meaning of 
section 101(a)(44) of the Act, unless the subordinates to be managed are supervisory, professional, or 
managerial employees. Section 101(a)(44)(A)(ii) of the Act. While the organizational chart that was 
submitted in response to the NOID does list some managerial and executive job titles, the beneficiary's 
proposed position is shown as overseeing one engineering manager, who purportedly oversees a decorating 
team. The information provided in the chart does not indicate that the beneficiary manages anyone else. 
Moreover, the AAO finds the information provided in the chart to be unreliable as it shows considerably more 
• 
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than eleven employees working at the petitioner's U.S. location, despite the fact that the petitioner's Form 1-
140 indicates only eleven employees working in the United States and 138 working in the Mexico location. 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 of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). As the petitioner has not provided any documents to resolve the inconsistency regarding its 
staffmg size, the AAO is unable to determine what specific managerial job duties the beneficiary would 
perform or whom he would manage. 
The AAO further finds that the above noted discrepancy in the petitioner's staffmg size creates an obstacle in 
terms of determining who within the petitioner's organizational hierarchy would relieve the beneficiary from 
having to allocate his time primarily to the performance of non-qualifYing tasks. 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. U.s. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (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). While it is possible for any company, large or small, to secure permanent employment for 
an alien in the immigrant category of multinational manager or executive, all petitioners, regardless of size, 
are subject to the same statutory criteria, which requires each petitioner to establish that the beneficiary's 
proposed employment would "primarily" entail tasks at a managerial or executive level. This criteria cannot 
be met if the petitioner is understaffed, which would indicate that it is not able to relieve its beneficiary from 
having to primarily perform non-qualifYing tasks. The AAO acknowledges that no beneficiary is required to 
allocate 100% of his time to managerial- or executive-level tasks. However, the petitioner must establish that 
the non-qualifYing tasks the beneficiary would perform are only incidental to the proposed position. 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). 
The petitioner has not provided adequate evidence to establish what specific tasks the beneficiary would carry 
out on a daily basis or whom the beneficiary would actually supervise during the course of his work given the 
discrepancies regarding the petitioner's organizational hierarchy and staffing size. Additionally, in reviewing 
the petitioner's quarterly tax and payroll statements for the 2009 third quarter, the AAO notes another 
inconsistency. Specifically, while the petitioner's quarterly tax statement indicates that the beneficiary 
employed a total of five individuals during the 2009 third quarter, the petitioner listed a total of six employees 
in its payroll document for the same quarter. While the specific content of these documents is not relevant for 
the purpose of establishing the petitioner's eligibility at the time of filing, i.e., July 21, 2010, the 
inconsistency itself gives the AAO further cause to doubt the credibility of the petitioner's claims and the 
documentation submitted in support thereof. Doubt cast on any aspect of the petitioner's proof may lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter o{Ho, 19 I&N Dec. at 59\. 
Furthermore, the petitioner has not adequately explained its employment of staff in Mexico and in the United 
States. While the AAO appreciates the petitioner's proximity to its Mexican affiliate, it is unclear which 
employees were specifically paid by the petitioner and would thus be considered to be the petitioner's 
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employees as of the date of filing. Despite the affiliate relationship of the two entities, the AAO must 
consider the evidence and information that pertains specifically to the petitioner when determining the 
petitioner's eligibility. Individuals who are compensated and employed by the Mexican entity cannot be 
commingled with the petitioner's own staff for the purpose of showing a complex organizational make-up and 
the availability of staff who would relieve the beneficiary from having to perform non-qualifYing tasks. Any 
claim by the petitioner that the foreign entity's staff is somehow instrumental in relieving the beneficiary from 
having to perform non-qualifying tasks must be corroborated by the submission of documentary evidence 
showing what job duties they perform and how the petitioner remunerates these employees for work 
performed for the petitioner's own benefit. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter af Saffici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter af Treasure Craft af Califarnia, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
In light of the above, the AAO fmds that the record lacks sufficient evidence to establish that the beneficiary 
would be employed in the United States in a qualifYing managerial or executive capacity and on the basis of 
this conclusion the instant petition cannot be approved. 
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.