dismissed EB-1C Case: Retail

U.S. Departn~ent of IIomeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdmrnzstratlve Appeals 
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 Wash~ngton, DC 20529-2090 
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 U. S. Citizenship 
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 and Immigration 
SRC 06 252 50273 
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. 9 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. 5 103.5 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, as required by 8 C.F.R. 103.5(a)(l)(i). 
John F. Grissom 
Acting 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 Florida corporation claiming to be engaged in the operation of a convenience 
storelgas station.' The petitioner seeks to employ the beneficiary as its president/managing director. 
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. 
5 1 153(b)(l)(C), as a multinational executive or manager. The director denied the petition based on 
the finding that the petitioner failed to establish that it would employ the beneficiary in a managerial 
or executive capacity. 
On appeal, counsel submits an appellate brief disputing the director's observations and ultimate 
finding with regard to the ground for ineligibility. The AA0 will address the director's findings and 
counsel's arguments in a full discussion below. 
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): 
(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. 
- - 
1 
 See Part 5, No. 2 of the petitioner's Form I- 140. 
Page 3 
The primary issue in this proceeding calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
Section lOl(a)(44)(A) of the Act, 8 U.S.C. 4 1 101(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 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 fiom 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 August 15, 2006, which included 
the following description of the duties to be performed by the beneficiary under an approved 
petition: 
Develop current business establishment and use entrepreneurial skills to acquire 
new establishments. 
Set goals for [the] business by coordinating financial planning and directing 
marketing and sales efforts. 
Analyze complex situations, design practical solutions and implement business 
plans. 
Develop personnel and improve sales. 
On November 27, 2006, the director issued a request for additional evidence (RFE) instructing the 
petitioner to clarify the beneficiary's qualifying employment with the U.S. entity. Specifically, the 
petitioner was asked to disclose the number of employees it has and to discuss how those employees 
support the beneficiary in a qualifying capacity. With regard to one of the businesses partly owned 
by the petitioner, i.e., , the director asked the petitioner to discuss the employees who 
work at the liquor store and to explain how they support the beneficiary in a qualifying capacity. 
In response, the petitioner provided the beneficiary's dailylweekly executive task schedule, which 
included the following breakdown of time to be spent on individual duties and responsibilities: 
Read [The] Wallstreet Journal[.] 30 minutes 
Confer with [the petitioner's] store operators in Delaware and Florida[.] 1 to 1.5 
hours 
Teleconference with [the] operation in Africa[.] 1 to 1.5 hours 
Review financial documentation[.] 25 minutes 
Analyze financial documentation[.] 15 minutes 
Identify market trends of retail customers[.] 2 to 3 hours per week 
Identify new retail products[.] 1 hour per week 
Meet with focus groups to identify consumer needs and behavior[.] 3 to 4 hours per 
months [sic] 
Attend chamber of commerce meetings to network[.] 2 hours per week 
Establish internal control procedures[.] 1 hour 
Preside over teleconference meetings with partners[.] 2 hours per day 
Preside over teleconference meetings with vendors[.] 3 to 4 hours per week 
Negotiate contracts with vendors[.] 3 to 4 hours per week 
Develop and direct marketing efforts of [the] entire operation[.] 6 to 7 hours per 
week 
Screen, select, hire, [and] fire key employees[.] ongoing 
Establish responsibilities for key personnel[.] ongoing 
Evaluate company performance based on reports received[.] 2 hours 
Determine areas of cost reduction[.] 4 hours per week 
Implement business policies[.] ongoing 
Identify new business locations for acquisition[.] 3 hours per week 
Evaluate newly identified business opportunities for [the petitioner.] 4 hours per 
week 
The petitioner also provided an organizational chart illustrating its own organizational hierarchy as 
well as its relationshir, to the businesses it has ~urchased in the United States. With regard to the 
former, the 
 identified the beneficiaj as president an ex cutive director, -1 
as a part-time administrative support employee, and d who is also listed as a 
manager in the 
 organizational chart. It is noted that the petitioner provided copies 
of the 2006 W-2 statements it issued to all three 
 its chart. However, the 
petitioner provided no explanation as to why 
 both the petitioner's 
organizational chart and in the organizational 
 or why this individual's 
position title with the petitioner is that of 
 In other words, the 
petitioner did not identify any specific contributions that has made or would make to 
the petitioning entity such as to justify the petitioner's payment of wages to this individual. 
On December 27, 2007, the director issued a decision denying the petition. The director noted that 
the petitioner's retail enterprise requires a staff to perform a number of non-qualifying operational 
tasks and that, absent evidence showing that the petitioner employs such a staff, it cannot be 
concluded that the beneficiary would primarily perform in a qualifying managerial or executive 
capacity. The director also addressed the breakdown of job duties submitted in response to the WE, 
finding that the list was created by counsel and, therefore, was not in compliance with the provisions 
in 8 C.F.R. 5 204.5(j)(5), which require that the petitioner provide a detailed description of the 
beneficiary's proposed job duties. After reviewing the referenced document, the AAO finds that 
there is insufficient basis for the director's conclusion. While it is apparent that the response letter 
Page 6 
itself was written by counsel, there is no evidence that the supporting document listing the 
beneficiary's job duties was created by counsel as well. Therefore, the director's finding regarding 
this specific issue is hereby withdrawn. The AAO also finds that the director erred in his numerical 
calculation of the number of hours accounted for in the beneficiary's day. Specifically, the director 
stated that of the total number of hours designated with "per week'' as the frequency with which 
those duties are performed, the petitioner only accounts for 3 1 hours of the beneficiary's work week. 
However, the AAO conducted its own independent review of the job duties and time allocations and 
has found that a minimum of 38 hours per week have been accounted for. As such, the director's 
observation in this regard is hereby withdrawn. 
That being said, the director duly took note of the contents of the list of job duties attributed to the 
beneficiary's proposed employment and pointed out deficiencies that led to an othenvise sound 
decision. The director took proper note of a number of operational job duties that were outside the 
realm of what can be deemed as qualifying managerial or executive tasks and further pointed out the 
petitioner's failure to clarify how frequently the beneficiary would perform certain job duties by 
failing to indicate whether certain job duties would be performed on a weekly or daily basis. 
On appeal, counsel focuses on the beneficiary's placement within the U.S. entity's hierarchy and his 
overall leadership role in making business decisions. Counsel also places great emphasis on the 
petitioner's purchase of an existing retail outlet that was fully staffed at the time of purchase and 
located in another state such that the beneficiary's daily performance of non-qualifying tasks was not 
necessary in such an instance. While the AAO takes full notice of both factors, it finds that neither 
is persuasive in overcoming the director's denial. 
In determining whether a beneficiary would be employed in a qualifying capacity the AAO will first 
look to the petitioner's description of job duties. Therefore, while the AAO does not discount either 
the relevance of the beneficiary's leadership role or his place at the top of the petitioner's hierarchy, 
in addressing the overall issue of the beneficiary's employment capacity, these factors must be 
reviewed in light of the beneficiary's prospective job duties. In the present matter, the list of job 
duties that was provided in response to the RFE is deficient. Namely, the petitioner has attributed 
significant portions of the beneficiary's time to such non-qualifying job duties as identifying market 
trends and new retail products, meeting with focus groups, networking at chamber of commerce 
meetings, presiding over meetings with vendors, negotiating contracts, and developing marketing 
efforts. These non-qualifying, operational tasks would cumulatively consume at least 20 hours per 
week. 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). 
Additionally, while the petitioner identified itself as a convenience storelgas station at Part 5, item 2 
of the Form 1-140, this information apparently pertains to one of the businesses that the petitioner 
purchased. The record also shows that the petitioner purchased a liquor store. However, both 
businesses had a full staff and were doing business at the time the petitioner made the respective 
purchases. It is unclear what types of business activities, if any, the petitioner itself conducts on a 
daily basis. A review of the beneficiary's list of job duties suggests that the petitioner is a retail 
Page 7 
business. However, there is no evidence that the petitioner is a retail operation that is separate and 
distinct from the retail conducted by the two businesses it has purchased. This lack of clarity brings 
into question the beneficiary's entire job description. In other words, whose market trends and retail 
products would the petitioner identify; which vendors would the beneficiary meet; and what types of 
contracts would he negotiate? The record does not establish that the petitioner's business activity 
goes beyond that which is conducted by the two businesses the petitioner has purchased, thereby 
indicating that the beneficiary would be primarily providing non-qualifying services to a liquor store 
and a convenience storelgas station. Given the organizational structure of the petitioner itself and 
the staffing of the petitioner's two businesses, there does not appear to be an established need for an 
employee that would be employed in a managerial or executive capacity as defined by the Act. 
Furthermore, the AAO finds that there is at least one additional ground of ineligibility that was not 
previously addressed in the director's decision. Namely, by virtue of the beneficiary's claimed 
ownership of the U.S. petitioner, it appears more likely than not that the beneficiary will not be an 
"employee" of the United States operation. As explained in 8 C.F.R. tj 204.50)(5), the petitioner 
must establish that the beneficiary will be "employed" in an executive or managerial capacity. It is 
noted that "employer," "employee," and "employed" are not specifically defined for purposes of the Act 
even though these terms are used repeatedly in the context of addressing the multinational executive and 
managerial immigrant classification. Section 203(b)(l)(C), 8 U.S.C. $ 1153(b)(l)(C), requires 
beneficiaries to have been "employed" abroad and to render services to the same "employer" in the 
United States. Further, section 101 (a)(44), 8 U.S.C. 5 1 101 (a)(44), defines both managerial and 
executive capacity as an assignment within an organization in which an "employee" performs certain 
enumerated qualifying duties. Finally, the specific definition of "managerial capacity" in section 
101(a)(44)(A), 8 U.S.C. 5 1101(a)(44)(A), refers repeatedly to the supervision and control of other 
"employees." Neither the legacy Immigration and Naturalization Service nor U.S. Citizenship and 
Immigration Services (USCIS) has defined the terms "employee," "employer," or "employed" by 
regulation for purposes of the multinational executive and managerial immigration classification. 
See, e.g., 8 C.F.R. 5 204.5 and 8 C.F.R. $ 214.2(1). Therefore, for purposes of this immigrant 
classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
Page 8 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at tj 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a corporation, which the petitioner claims is ultimately owned and controlled 
by the beneficiary, who purports to assume a role as the petitioner's principal. There is no evidence 
that anyone other than the beneficiary himself is in a position to exercise any control over the work 
to be performed by the beneficiary. As such, it appears the beneficiary is the employer for all 
practical purposes. He will control the organization; set the rules governing his work; and share in 
all profits and losses. 
Page 9 
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), afd, 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 
ground of ineligibility discussed above, this petition cannot be approved. 
As a final note, counsel makes a brief reference to the petitioner's previously approved L-1 
employment of the beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, it 
should be noted that, in general, given the permanent nature of the benefit sought, immigrant 
petitions are given far greater scrutiny by USCIS than nonimmigrant petitions. 
In addition, each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof; each petition must stand on its own individual merits. USCIS is not 
required to assume the burden of searching through previously provided evidence submitted in 
support of other petitions to determine the approvability of the petition at hand in the present matter. 
USCIS denies many I- 140 immigrant petitions after approving prior nonimmigrant 1-129 L- 1 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of 
Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 
(E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported 
assertions that are contained in the current record, the approvals would constitute material and gross 
error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 
1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1 988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
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, afd, 
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. 5 1361. The 
petitioner has not sustained that burden. 
Page 10 
ORDER: The appeal is dismissed.