dismissed EB-1C Case: Purchasing

-1dedf)ing data deleted to 
prevent clearly imwamteo 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: OFFICE: TEXAS SERVICE CENTER Date: JAN 2 1 2010 
SRC 08 150 50272 
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. 5 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. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-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 or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
erry Rhew 
* 
V Chief, Administrative Appeals Office 
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 North Carolina corporation that seeks to employ the beneficiary as its purchase manager. 
Accordingly, the petitioner endeavors to classifjl 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. 5 1153(b)(l)(C), as a 
multinational executive or manager. The director determined that the petitioner failed to establish that it 
would employ the beneficiary in a managerial or executive capacity and denied the petition on that basis. 
On appeal, counsel disputes the director's conclusions and submits a brief assessing why U.S. Citizenship and 
Immigration Services (USCIS) should approve the petition. 
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 it would employ the beneficiary 
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 10 l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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 101(a)(44)(B) of the Act, 8 U.S.C. 5 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 support of the Form 1-140, the petitioner submitted a letter dated March 18, 2008, which includes the 
following description of the beneficiary's proposed employment in the United States: 
Responsible for all sourcing and purchasing. 
She will be responsible for negotiations and contracts concerning all purchasing. 
Coordinate with [the petitioner's] head office and Chinese suppliers in the trade of casting, 
spare parts, etc. 
In charge of searching and selecting Chinese suppliers, making report for the quality of 
samples, and negotiating the contract. 
Page 4 
Responsible for the follow-up with implementation of each contract, tracing the production 
milestone, getting hold of inventory shipment, finalizing the payment issue. 
Responsible for solving the problem between the customers and Chinese suppliers and 
inform the company for the outcome. 
The petitioner also provided a copy of its organizational chart, which depicts the petitioner's staffing levels at 
or near the date the petition was filed. The chart depicts a multi-tiered entity comprised of a chief executive 
officer (CEO) at the top of the hierarchy, a president and a controller directly below the CEO, followed by 
outside sales representatives, a vice president of sales, a general manager, and an assistant controller at the 
third tier within the hierarchy. The fourth tier of the hierarchy includes the beneficiary's position of purchase 
manager as well as inside sales representatives, contract administrators, a warehouse manager, and an 
accounting clerk. The two remaining employees include a warehouse supervisor, who is subordinate to the 
warehouse manager, and warehouse personnel, who are subordinate to the warehouse supervisor. 
On March 17, 2009, the director issued a notice of intent to deny (NOID), informing the petitioner that 
additional evidence was necessary to complete the processing of the petition. The director observed that the 
petitioner filed the Form 1-140 with a deficient description of the beneficiary's proposed employment. 
Accordingly, the director instructed the petitioner to provide a definitive statement listing the beneficiary's 
proposed job duties and indicating the percentage of time that would be devoted to each job duty. The 
director also asked for a brief job description and a statement of educational levels of any employees the 
beneficiary would supervise and, in the alternate, to specify the essential function the beneficiary would 
manage if she would not' oversee any subordinate employees. Additionally, the director asked the petitioner 
to indicate the beneficiary's level of authority. 
In response, the petitioner provided a letter dated April 7, 2009, which included the following supplemental 
job description and time allotments: 
1. 
 Purchasing and sourcing: in charge of all purchase work, selection of suitable vendors for 
up-coming projects by analyzing inquiries and vendor situations, and monitoring the 
quoting process. In addition to current suppliers, use resources to search and select new 
suppliers by cost comparison and quality appraisal, to reach the company goals for cost 
reduction and quality improvement. When getting inquiries not within current work field, 
direct and manage the sour[c]ing work in Chinese branches . . . , look for suppliers in new 
fields and extend company business range. Arrange customer visits to Chinese vendors. 
Based upon company objective and policy, establish a functional, efficient and diversified 
supplier base, to strengthen the company's competitive edge and meet customer 
satisfaction. 
Percentage of time used: 55% 
2. 
 Communicate between vendors and customers in a timely manner, summarize the overall 
situation of all vendors and solve major vendor problems. Get vendors' shipping plans, 
inventory reports and payment requests each week, to coordinate with customers' 
requirements. Resolve any major, urgent disputes and problems with the vendors on behalf 
of the company, such as quality problems, corrective action, chargebacks, term changes, 
etc. Negotiate and sign agreements with vendors. 
Percentage of time used: 35% 
3. 
 Summarize and make reports to the company of on-going project status. 
 Obtain the 
implementation processes from contact administrators. Obtain new customer[s'] inquiries 
from the contact website and arrange the [online] bid for potential projects. Stay informed 
of industry news, trends, services, competitors, etc. Other duties as the company requires. 
Percentage of time used: 10% 
The petitioner also stated that the beneficiary would oversee three sourcing managers located in Beijing, 
Tianjin, and Ningbo, China, respectively. The petitioner provided an amended organizational chart reflecting 
the three sourcing managers the beneficiary would manage. 
In a decision dated May 4, 2009 the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary would be employed in a qualifying managerial or executive capacity. The 
director mentioned the petitioner's staffing and the beneficiary's job duties as the two factors that contributed 
to the adverse conclusion. 
On appeal, counsel provides a confusing statement, asserting that the beneficiary has been and would be 
performing managerial and executive duties that would include both managing personnel and managing a 
function. Counsel's statements, however, are not persuasive. 
First, the petitioner must clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. 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 and the statutory definition for manager. Here, counsel provides the 
statutory definition for the term executive capacity, but incorporates aspects of the definition for managerial 
capacity, such as personnel management, in his discussion of the beneficiary's proposed position. Such 
statements fail to firmly establish a basic element of the petitioner's fundamental claim. 
Second, counsel claims that the beneficiary will manage both personnel and a function, thereby clearly failing 
to make the significant distinction between the two types of managers. Specifically, the term "function 
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff 
but instead is primarily responsible for managing an "essential function" within the organization. See section 
10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 9 1 1 Ol(a)(44)(A)(ii). Thus, by virtue of claiming that the beneficiary 
manages a subordinate staff, the term "function manager" would not apply. That being said, the AAO takes 
particular notice of the organizational chart that the petitioner initially submitted in support of the Form 1-140, 
where the petitioner did not show the beneficiary as supervising any subordinate personnel. Thus, it would 
appear that in comparing the petitioner's original organizational chart and the one submitted in response to the 
NOID, the petitioner's earlier and later claims are at odds with one another. Additionally, as the beneficiary's 
role as personnel manager stems from her oversight of employees who work for a separate entity abroad, it is 
noted that any time spent performing any tasks, oversight or otherwise, for the foreign entity cannot be 
considered in determining whether the beneficiary's prospective employment with the petitioner would be 
within a qualifying capacity. Even if these specific tasks would normally be deemed managerial or executive 
with regard to the foreign entity, they would be deemed tasks necessary to provide a service, albeit a 
management service, on behalf of the petitioner and, thus, would be non-qualifying. 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). 
Lastly, 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. 5 204.5(j)(5). In the present matter, the job description 
provided by the petitioner indicates that the beneficiary would be expected to perform numerous daily 
operational tasks, including searching for new suppliers, overseeing and directing the work of foreign 
employees, directly dealing with vendors and customers to resolve disputes and problems, negotiating vendor 
agreements, providing project summary reports, and arranging online bidding for projects. While these tasks 
may be essential for the success and financial development of the petitioning entity, a function manager is 
someone who manages an essential function rather than performs the duties related to that function. As stated 
earlier, being employed in a managerial or executive capacity means that the primary portion of the 
beneficiary's time would have to be devoted to tasks within that capacity, rather than to the daily operational 
tasks that are necessary to produce a product or to provide services. 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. at 604. While the AAO does not find that the petitioner's 
staffing size is a significant contributing factor in finding ineligibility, it does appear that the petitioner's 
organization is structured in such a way that managing the purchasing function will require the beneficiary to 
spend the majority of her time performing service-related tasks related to that essential function. Therefore, 
the AAO cannot conclude that the petitioner would employ the beneficiary in a qualifying managerial or 
executive capacity. On the basis of this initial determination, the AAO cannot approve the instant petition. 
An adverse finding is further warranted on the basis of additional grounds that were not previously addressed 
in the director's decision. 
First, 8 C.F.R. 5 204.5(j)(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 her entry 
to the United States as a nonimmigrant to work for the same employer. In the instant matter, the percentage 
breakdown of the beneficiary's job duties with the foreign entity, which was submitted in response to the 
NOID, indicates that the beneficiary was performing non-qualifying job duties similar to the ones she would 
be expected to perform in her proposed position with the U.S. entity. For instance, the petitioner indicated 
that the beneficiary directly communicated with vendors by providing information and resolving problems 
and disputes, searching for new vendors, and partaking in development and start-up work for new projects. 
While these job duties may have been essential to the beneficiary's role as purchasing manager, there is no 
indication that they can be deemed tasks of a qualifying managerial or executive nature. As such, the AAO 
cannot conclude that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. 9 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. The regulation and case law confirm that ownership and 
Page 7 
control are the factors that must be examined in determining whether a qualifying relationship exists between 
United States and foreign entities for purposes of this visa classification. Matter of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 
362; Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers 
to the direct or indirect legal right of possession of the assets of an entity with full power and authority to 
control; control means the direct or indirect legal right and authority to direct the establishment, management, 
and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
The regulation at 8 C.F.R. 5 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
[the petitioner]," which indicates that the petitioner issued 100 shares of stock. The document indicates that 
the 100 shares were distributed among four people-two individuals were issued 24 shares each,- 
was issued 25 shares, and 
 was issued 27 shares. Thus, the petitioner's stock was 
distributed in a way that did not give any one shareholder a majority interest. 
With regard to the foreign entity, the petitioner provided a letter dated December 8, 2006 from-~ 
, the petitioner's controller, who claimed that is the representative of the foreign entity, 
but that the foreign entity "is fully owned and supported by the U.S. [petitioner]." However, that document is 
followed bv an English translation of another document entitled "Business [Llicense for Sole Pro~rietorshi~ 
L J 
~nterprise,' whickidentifies the foreign entity by name and indicates that 
 as thk investo;. 
Neither that document, nor any other that was submitted with regard to the foreign entity, identified the U.S. 
petitioner as the owner of the foreign entity. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). As the petitioner has not provided evidence establishing that it owns and controls the foreign entity, 
the petitioner's claim of a qualifying subsidiary relationship fails on the basis of a lack of any supporting 
evidence of such a relationship. 
Additionally, while there is some degree of common ownership, as owns 25% of the issued 
shares of the petitioner and also appears to be the sole investor, i.e., owner, of the foreign entity, the fact that 
appears to be the majority owner of the foreign entity while having only minority ownership in the 
U.S. petitioner indicates that the two entities are not affiliates based on the definition of "affiliate" as provided 
by 8 C.F.R. tj 204.5(i)(2). 
Accordingly, based on the above analysis, the AAO cannot conclude that the beneficiary's proposed and 
foreign employers have the necessary elements of common ownership and control that are required for the 
two entities to be deemed as having a qualifying relationship. 
Third, 8 C.F.R. tj 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 petitioner filed the Form 1-140 on April 7, 2008. Therefore, the petitioner must establish that it commenced 
doing business no later than April 7,2007 and must have continued to do business up through the date the petition 
was filed. While the petitioner has provided invoices dated March, April, and May of 2007, there are no other 
invoices for the remainder of 2007 or for 2008 leading up to the date the Form 1-140 was filed. Additionally, 
while the petitioner provided a copy of an independent auditor's report indicating that its balance sheets as of 
September 30,2007 were audited, such a document does not establish that the petitioner was doing business on a 
"regular, systematic, and continuous" basis, as defined by 8 C.F.R. tj 204.5(j)(2). Therefore, the AAO cannot 
conclude that the petitioner has met the requirements discussed at 8 C.F.R. tj 204.5(j)(3)(i)(D). 
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. 
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.