dismissed EB-1C Case: Retail

id"';lL,rying data deleted to ' 
pn~vent clearly unwarrantec' 
in vasion of personal privacy 
PUBLIC COPY 
DATE: JUL 0 32012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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: Innnigrant 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)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please [md 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. § \03.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § \03.5(a)(I)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PenryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Michigan company that is engaged in "lottery, liquor, beer and grocery," which 
seeks to employ the beneficiary as its President/CEO. 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. § IlS3(b)(l)(C), as a multinational executive 
or manager. 
On August 13, 2010, the director denied the petition concluding the following: (I) the petitioner 
failed to establish that the beneficiary's proposed employment with the U.S. entity would be within 
a qualifying managerial or executive capacity, and (2) the petitioner failed to establish that the 
beneficiary's employment abroad was within a qualifying managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded the appeal to the AAO for review. On appeal, counsel disputes the director's 
fmdings and provides an appellate brief laying out the grounds for challenging the denial. Counsel 
submits a brief and additional evidence in support ofthe appeal. 
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) 
thro ugh (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 I 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 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 subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(I)(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 that 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. See 8 C.F.R. § 204.5G)(5). 
The first issue in this proceeding is whether the petitioner submitted sufficient evidence to establish 
that it would employ the beneficiary in the United States in a qualitying managerial or executive 
capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.c. § I 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 ofthe 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. § 110l(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 ofthe organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
Page 4 
(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, 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 defined 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), ajJ'd, 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 ofthe 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. 
An analysis of the record does not lead to an affirmative conclusion that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
In the October 8, 2009 support letter, the petitioner provided a list of duties to be performed by the 
beneficiary "in his executive capacity." On review, the petitioner provided a vague and nonspecific 
description of the beneficiary'S duties that fails to demonstrate what the beneficiary will do on a 
day-to-day basis. For example, the petitioner stated that the beneficiary will be "overseeing day-to­
day business activities of the U.S. entity," "will have the utmost discretionary authority in all 
decision-making and specialized processes and procedures," and "assure proper application of State 
of Michigan retail sale regulations." Reciting the beneficiary'S vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of 
the beneficiary's daily job duties. The petitioner failed to provide any detail or explanation of the 
beneficiary'S activities in the course of his daily routine. The actual duties themselves will reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The 
petitioner's description of the beneficiary'S position does not identify the actual duties to be 
performed, such that they could be classified as managerial or executive in nature. The job 
description submitted by the petitioner provides little insight into the true nature of the tasks the 
beneficiary will perform. 
The jo b description also includes several non-qualifying duties such as "negotiation of all contracts 
with prospective clients and suppliers of party/convenience store inventory," negotiating and 
securing long-term contracts with local and national wine and liquor items suppliers," "establishing 
of quarterly and annual sales goals for the U.S. entity," "development of customer service 
standards," "negotiating contracts to expand business location or secure a larger store location," and 
"establishing marketing and advertising goals to properly introduce and expand the U.S. petitioner's 
services on the Michigan market." It appears that the beneficiary will be developing and marketing 
the services of the business and negotiating contracts, rather than directing such activities through 
subordinate employees. The petitioner did not identify any employees who actually assisted the 
beneficiary in the marketing and promotion of the business, thus indicating that the beneficiary is 
the one to carry out these operational functions, which are outside the parameters of what would be 
deemed as being within a managerial or executive capacity. 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 
Page 5 
the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter a/Church Scientology Intn '/.,19 I&N Dec. at 604. 
The director sent a request for evidence to the petitioner and asked for a much more detailed 
statement of the duties for the proposed position, and a percentage oftirue spent on each duty. The 
petitioner failed to provide a more detailed statement of the proposed duties as requested by the 
director. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. § I 03.2(b)(l 4). 
On appeal, the petitioner provided a new job description for the beneficiary's proposed position. 
After reviewing the new job description, almost all of the duties are non-qualifYing duties such as 
"ensure that there is adequate supply of materials available"; "order, receive, inspect, and store 
equipment merchandise, commodities, materials and supplies"; "set up and close cash registers and 
prepare deposits"; "receive and fill liquor orders for clubs, restaurants, and hotels as required"; 
"display new items and existing stock"; "assist customers in finding products, making selections 
and purchasing items and resolve potential confrontational issues when dealing with intoxicated 
individuals, shoplifters, etc." All of these duties are not in a managerial or executive capacity but 
instead resemble the duties that would be performed by cashiers or stockers. 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 o/Church Scientology Intn '/., 19 I&N Dec. at 604. 
An analysis of the nature of the petitioner's business undermines the petitioner's assertion that the 
beneficiary is employed in a managerial or executive capacity. The Form 1-140, submitted on 
December 31, 2009, stated that the petitioner employs three individuals, including the beneficiary. 
Thus, it appears from the record that the beneficiary may be performing several, if not all, of the 
finance operations, marketing, and business development activities, and all 0 f the various 
operational tasks inherent in operating a business on a daily basis, such as paying bills, handling 
customer transactions, and negotiating contracts. Furthermore, the petitioner corroborates this 
claim in the duties listed by the petitioner that will be performed by the beneficiary. Based on the 
record of proceeding, the beneficiary'S job duties are principally composed of non-qualifYing duties 
that preclude him from functioning in a priruarily managerial or executive role. In addition, the 
petitioner submitted a "Retailer Contract/Application" that listed the store hours of the petitioner. 
According to that contract, the petitioner is open seven days a week for a total of 89 hours per week. 
Moreover, the petitioner presented Forms W-2 for 2009 that indicated four individual were 
employed by the petitioner in 2009; however, two individuals received a salary of$7l 04.00 which 
indicates part-time employment. The petitioner also provided a list of employees and hours worked 
for one week in January 2010 that indicated the petitioner employed the beneficiary as general 
managerlbusiness control, one store manager/order placements and one cashier/lotto sales. 
However, the petitioner did not explain how one store manager and one cashier can run the 
business, including running the cashier, customer service, inventory, stocking, and all the day-to­
day operations of the store for 89 hours a week. Thus, it appears that the beneficiary will need to 
perform several duties that do not qualifY as executive or managerial in nature. 
Page 6 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operations duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's 
actual duties and role in a business. As discussed above, the petitioner has not identified sufficient 
employees within the petitioner's organization, subordinate to the beneficiary, who would relieve 
the beneficiary from performing routine duties inherent to operating the business. The fact that the 
beneficiary has a managerial job title and general oversight authority over the business is 
insufficient to elevate his position to one in a managerial or executive capacity. 
The beneficiary's job duties as described by the petitioner are not indicative of an employee who is 
primarily focused on the broad goals and policies of the organization. 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). The petitioner has not established that the 
beneficiary is primarily engaged in directing and controlling a subordinate staff comprised of 
professional, managerial or supervisory employees, nor has it indicated that he is charged with 
managing an essential function of the petitioning organization. See section 101 (a)(44)(A) of the Act. 
The AAO is not persuaded that the beneficiary would be employed in a primarily managerial 
capacity. 
The second issue in this matter is whether the beneficiary's employment abroad was within a 
qualifying managerial or executive capacity. An analysis of the record does not lead to an 
affirmative conclusion that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity. 
The petitioner claimed in its October 8, 2009 letter that the beneficiary has served as President ofthe 
foreign affiliate in Canada since 1993. The petitioner stated that the beneficiary "has been and 
continues to be responsible for establishing Canadian company goals and policies, operational 
procedures, as well as for approving annual budget and authorization of all expenditures." 
This description provides little insight into what the beneficiary primarily did on a day-to-day basis as 
president of the foreign entity. The petitioner provided a vague description for the duties performed by 
the beneficiary such as "reviewing of the annual budget and other financial data figures"; "overseeing 
implementation of company marketing goals"; "reviewing financial goals"; "exercising full discretion 
attendant with all human resource management, administrative and contract negotiation issues"; and 
"directing and reviewing day-to-day activities of the business and resolving all employee and customer 
services issues." The petitioner did not provide a list of employees and their job titles and duties. 
Reciting the beneficiary'S vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to provide any detail or explanation of the beneficiary'S activities in the course 
of his daily routine. Again, the actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. at 1108. Accordingly, the evidence of 
record is insufficient to establish that the beneficiary was employed by the foreign entity in a 
primarily managerial or executive capacity. 
Page 7 
On appeal, the petitioner did not discuss this issue at all even though the director denied the petition, in 
part, because the petitioner failed to establish that the beneficiary was employed by the foreign 
company in an executive or managerial capacity. 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)). 
The record lacks any evidence that the foreign company actually exists and continues to do 
business. The petitioner did not provide any documentation regarding the foreign company. 
Again, 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 at 165. 
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.