dismissed EB-1C Case: Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER 
 Date: MAR 0 7 a007 
SRC 06 068 5 1776 
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: SELF-REPRESENTED 
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. 
6- 
Robert P. Wiemann, 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 engaged in the retail and wholesale of wooden toys manufactured by 
its claimed foreign parent entity, located in the Czech Republic. It seeks to employ the beneficiary as its 
general manager. Accordingly, the petitioner endeavors to classifL 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. 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 appeal, the beneficiary, on behalf of the petitioner, disputes the director's conclusion and submits a brief 
explaining her role within the foreign and U.S. entities. 
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 U.S. petitioner would primarily employ the beneficiary in 
a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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. § 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 provided a letter dated December 14, 2005, which included the 
following information regarding the beneficiary's employment in the United States: 
In this capacity [as general manager], [the beneficiary] has: 1) [bleen responsible for the day- 
to-day operations of the company, including inventory and sales; 2) [plerformed market 
research to investigate new distribution possibilities; 3) [olverseen the development of 
creative marketing and sales programs to promote business; and 4) b]een responsible for all 
personnel decisions, including the contracting [of] independent contractors. 
[The beneficiary] fulfills all company operational requirements. She is responsible for all 
hiring and firing of personnel, organizing and determining sales territories and quotas, etc. 
She is also responsible for compliance with all governmental regulations, shipping options, 
customs clearances, and proper record keeping. 
On February 16, 2006, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide the following documentation to assist in determining the beneficiary's employment capacity in the 
proposed position in the United States: 1) evidence of the petitioner's staffing levels, including the position 
titles and job duties of all employees; 2) a detailed description of the beneficiary's proposed day-to-day duties 
with a percentage of time assigned to each duty; 3) an explanation discussing who provides the petitioner's 
services or provides its products; and 4) the W-2 forms issued by the petitioner in 2004. 
In response, the petitioner provided a letter from counsel dated April 5, 2006.' Counsel stated that the 
petitioner would employ the beneficiary in a primarily executive capacity and followed up with statements 
indicating that the beneficiary "serves in the managerial position of [gleneral [mlanager." Counsel referred to 
the beneficiary as a "manager/executive of a multinational organization" and provided the following 
statements regarding the beneficiary's responsibilities: 
She is responsible for the day-to-day operations of the company, including inventory and 
sales. She plans, develops and establishes policies and objectives to obtain optimum 
profitability and highest corporate gain. She directs the administration and infrastructure of 
the U.S. entity. She has complete control over all financial, administrative, personnel, 
marketing and sales decisions. She also coordinates new distributions possibilities, 
negotiates, finalizes and signs contract[s]; analyzes costs and determines profit margins, 
tracks incoming funding and receivables; manages fundamental issues such as permits, legal 
affairs, contracts, and funding insurance matters and is responsible for the development of 
creative marketing and sales programs to promote business. [The beneficiary] also oversees 
the supply and distribution of the company's products. She establishes relations with 
suppliers and distributors. As a [gleneral [mlanager, [the beneficiaryl's duties are to ensure 
that the company would be successful in establishing and maintaining a strong business 
presence in the United States. She is charged with using her business expertise to oversee the 
expansion of business interest[s]. In the execution of the duties, she is empowered by the 
company to exercise wide latitude in all decision making and report only to the executive 
team of the Czech company. 
Counsel further explained that the petitioner's business operation does not require a large staff. He stated that 
the petitioner is a family business that employs the beneficiary and her husband whose tasks include talung 
phone orders, packing and preparing boxes for shipping, preparing invoices, and handling shipments within 
the United States. With regard to the breakdown of duties, counsel stated that the beneficiary carries out the 
following "executive" duties in her position as general manager: 
[Alpproximately 70% of the [b]eneficiaryfs time spends [sic] in the day-to-day operations 
which consist of directing the administration and infrastructure of the U.S. operation; 
formulating and setting all business policies an[d] practices; managing the short and long 
Although the record contains a properly filed Form G-28, Notice of Entry of Appearance as Attorney or Representative, 
submitted with the Form 1-140, the petitioner's statements on appeal as well as its choice to represent itself on appeal 
indicates that the previously retained counsel is no longer representing the petitioner in the present matter. 
term financial planning and investments; establishing relationships with retail stores, galleries 
and specialty toy stores and general public; planning promotional campaigns; preparing 
marketing meetings with potential buyers; conducting all financial operations; and 
monitoring all expenditures, supplies and distributions. More specifically, of that 70% the 
[pletitioner estimates about 20% is devoted to the development of creative marketing and 
sales programs to promote business, 30% is devoted on [sic] the review of inventory and 
sales, and the remaining 20% is devoted to billing, invoicing, tracking of shipments, 
insurance matters and reviewing of orders. The [bleneficiary also spends a fair portion of his 
[sic] time in reviewing current practices, implementing new procedures and policies of its 
structure to improve the cost effectiveness and efficiency of the company's operations and 
contribute [sic] to the business development and success of the enterprise. 
The remaining 30% of the [bleneficiary's time, outside the 70% is devoted in [sic] marketing 
research activities to establish and maintain a strong business presence in the United States. 
She identifies and ensures the development of new distribution opportunities; supervises 
organizational and business development for the logistical operations; oversees client and 
public relations; negotiates, finalizes and signs contracts; analyzes cost and determines profit 
margins; tracks incoming funds and receivables; [and] consents to hire and terminate 
employees. The beneficiary dedicates time to resolve legal affairs and obtains all licenses 
and permits. 
Counsel also objected to the RFE's instruction to provide evidence of the petitioner's staffing, arguing that the 
petitioner's needs and the complex nature of its business must be taken into account. Counsel's arguments are 
not persuasive, as his deliberate refusal to fully address requests presented in the RFE regarding the 
petitioner's staffing levels preclude CIS from taking into account the petitioner's reasonable needs. Moreover, 
counsel's reference to the petitioner's reasonable needs is a mere attempt to justify the beneficiary's continued 
performance of daily operational tasks, which cannot be deemed qualifying. There is no case law or 
regulation that suggests a petitioner's reasonable needs override the statutory requirement that a beneficiary 
must primarily perform duties of a qualifying managerial or executive nature. 
That being said, counsel repeatedly referred to the beneficiary as both a manager and an executive, failing to 
distinguish between the two individual employment capacities and their distinct definitions under sections 
101(a)(44)(A) and (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. 
Finally, the petitioner complied with the RFE request for its 2004 W-2 statements, which were submitted for 
the beneficiary and for her husband. 
In a decision dated June 13, 2006, the director denied the petition noting that the petitioner's description of the 
beneficiary's proposed employment suggests that the beneficiary would primarily perform duties of a non- 
qualifying nature. 
On appeal, the beneficiary explained that the petitioner has been able to thve because of the personal contact 
she has maintained with the company's clientele. The beneficiary clarified that her duties would be within a 
managerial capacity and explained that additional employees would be hired upon approval of the petition. 
However, a petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future 
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Comm. 1971). The beneficiary's assertion that the petitioner is not fully staffed because of the 
status of the instant Form 1-140 merely indicates that the petitioner was not adequately staffed at the time of 
filing such that the beneficiary could be relieved from having to primarily engage in the daily operational 
tasks involved in selling the wooden toys manufactured by the foreign entity. 
The beneficiary provides a supplemental list of her proposed duties and responsibilities, stressing the 
importance of personal contact with the owners and managers of the stores that purchase the petitioner's 
merchandise. The beneficiary also explains that the need to minimize capital investment into the company 
has resulted in her contracting out to other companies for the performance of "lower level duties of the 
[petitioner]." More specifically, the beneficiary claims that the company's accounting, ads and catalogs, 
transportation, and packing and shipping services are all provided by outside contractors. However, the 
record lacks documentation to corroborate this claim. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
While the record adequately conveys the level of the beneficiary's discretionary authority with respect to most 
matters concerning the business, there is insufficient evidence to establish that the petitioner was adequately 
staffed at the time the Form 1-140 was filed such that the beneficiary would primarily perform duties within a 
managerial or executive capacity. Based on the evidence provided, no one other than the beneficiary herself 
was able to provide the much-need sales services that would generate the company's revenue. While this 
staffing structure may be justified by the needs of a company that is still in its early stages of development, 
there are no legal exceptions to the statutory mandates that require the beneficiary of a Form 1-140 to 
primarily perform duties of a qualifying nature. 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). Based on the evidence furnished, it cannot be found that the beneficiary would 
be employed primarily in a qualifying managerial or executive capacity. For this reason, the petition may not 
be approved. 
Furthermore, the record supports a finding of ineligibility based on additional grounds that were not 
specifically addressed in the director's decision. 
First, while the director made note of the petitioner's failure to provide certain information regarding the 
beneficiary's foreign job duties, he did not render a conclusion as to whether the petitioner established that the 
beneficiary was employed abroad in a qualifying managerial or executive status for at least one out of the 
three years prior to her entry to the United States as a nonimmigrant employee of the petitioner. See 8 C.F.R. 
204.5Cj)(3)(i)(B). Regardless, a review of the record on appeal shows that the beneficiary's duties abroad 
were not specified. Therefore, while it appears that the beneficiary may have had a high degree of 
discretionary authority, the AAO cannot conclude that her duties were primarily of a qualifying nature. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 
1990). 
Second, 8 C.F.R. $ 204.56)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. While the petitioner indicates that it is a subsidiary of 
the beneficiary's foreign employer, the record lacks documentation to corroborate this claim. As previously 
stated, going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter ofSof$ci, 22 I&N Dec. at 165. 
Third, the regulation at 8 C.F.R. 9 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the present matter, the petitioner has claimed that the beneficiary would be compensated approximately 
$3 1,000 annually under an approved petition. Although the petitioner has provided a number of its bank 
statements, such documentation is not an accurate indicator of whether a company is able to pay the 
beneficiary's proffered wage. Nor has the petitioner establish its ability to pay by submitting its 2004 tax 
documentation, which, regardless of content, is irrelevant in establishing the petitioner's financial status as of 
December 2005 when the Form 1-140 was filed. Thus, based on the record as presently constituted, the AAO 
cannot conclude that the petitioner was able to compensate the beneficiary the proffered wage when the 
petition was filed. 
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 ineligbility as discussed above, 
this petition cannot be approved. 
When the MO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the MO 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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.