dismissed EB-1C Case: Retail

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DATE: JUN 2 1 2012 
INRE: 
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 
OFFICE: TEXAS SERVICE CENTER 
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. § IIS3(b)(l)(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 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. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to 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 
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 New York company that is engaged in retail and it seeks to employ the beneficiary as 
its Chief Executive. 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. § 1153(b)(I)(C), as a multinational executive or manager. 
On May II, 20 I 0, the director denied the petition based on the determination that the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity. 
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)(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 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 submitted sufficient evidence to establish 
that it would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 10 1 (a)(44)(A) ofthe 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--
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 V.S.c. § 1 10 1 (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. 
On the Form 1-140, the beneficiary's job duties as Chief Executive were to "determine and formulate 
policies and provide the overall direction of [the petitioner] within the guidelines set up by a board of 
directors. Plan, direct, or coordinate operations at the highest level of management with the help of 
subordinate managers." In a letter of support, the petitioner further stated that the beneficiary "has been 
exceptional in negotiating with our suppliers and venders [sic] terms beneficial to the company"; 
"represented the company with state and federal licensing agencies"; and "reviews business opportunities 
in this region and builds relationships with business brokers, bankers, real estate agents and franchise 
companies to expand the business holding of [the petitioner.]" 
Page 4 
In response to the director's request for additional evidence, the petitioner stated that the minutes of 
meetings indicated an "unbroken chain of authority held by [the beneficiary] to the present date." The 
petitioner also stated the beneficiary is the Secretary, Treasurer and the Sole Director of the petitioner, 
and his "duties provide a wide latitude in decision making with regards to the operation of the 
corporation." The petitioner also provided an additional job description of the duties to be performed. 
The petitioner also listed the six employees and their educational level. 
In response to the request for evidence, the petitioner submitted a new organizational chart for the 
petitioner that indicated the beneficiary as president who supervises two convenience stores. Each 
convenience store has the same manager and the same four clerks. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be 
employed in a managerial or executive capacity. When 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. § 
214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. 
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 states vague 
duties such as the beneficiary has "wide latitude in decision making with regards to the operation of the 
corporation"; "determine and formulate policies and provide the overall direction of [the petitioner] 
within the guidelines set up by a board of directors"; and "plan, direct, or coordinate operations at the 
highest level of management with the help of subordinate managers." Conclusory assertions regarding 
the beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.NY 1989), afJ'd, 905 F. 2d 41 (2d. Cir. 1990); Aryr Associates, Inc. v. Meissner, 1997 
WL 188942 at *5 (S.D.N.Y.). The petitioner did not define the petitioner's goals and policies or the day­
to-day activities performed by the beneficiary in reaching the business goals for the convenience store. 
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. 
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 descriptions of the beneficiary's position do not identify the actual 
duties to be performed, such that they could be classified as managerial or executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary will be responsible 
for "research and develop new products and markets for company, this would include negotiating terms 
for soda, beer, wine, candy, cigarettes and wholesale groceries in meetings with vendors"; "negotiate 
terms with suppliers and vendors"; "meet with gasoline supplier"; "reviewing and researching new 
businesses"; and "represent [the petitioner] with state and federal licensing agencies for the beer license, 
food permit and gasoline sales." 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. 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. 
Page 5 
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 intn 'I., 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. On the 1-140, the petitioner stated that it 
employed six employees. In response to the director's request for evidence, the petitioner submitted a 
new organizational chart for the petitioner. In the new chart, the beneficiary is the president that runs two 
convenience stores. The same manager and the same four clerks work in both stores. The petitioner also 
submitted Form W -2 for 2009 that indicated the salary for all of the employees listed on the 
organizational chart except for one. The three clerks received salaries of $4054.81, $6953.91 and 
$11,580.00. Thus, it appears that the clerks were employed part-time. The same is true for the manager, 
who received a salary of$15,255.00. 
In addition, the petitioner does not explain how the president, one manager, and four clerks can operate 
two convenience stores that are open seven days a week for at least 14 hours a day. It is not clear how 
one manager can run the accounting, inventory, purchasing, customer service, human resources and all 
the management operations for two businesses. Although the beneficiary is not required to supervise 
personnel, if it is claimed that his duties involve supervising employees, the petitioner must establish that 
the subordinate employees are supervisory, professional, or managerial. See § 101(a)(44)(A)(ii) of the 
Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 101(a)(32) of the Act, 8 U.S.C. § 1 101 (a)(32), states that "[tJhe term profession shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." The term "profession" 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by a 
prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic 
prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm'r 
1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
The AAO must focus on the level of education required by the position, rather than the degree held by a 
subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term 
is defined above. The petitioner has not established that a bachelor's degree is actually necessary, for 
example, to perform the managerial and clerical work of the store manager and the clerks who are the 
beneficiary's subordinates. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including maior components or functions of the organization, and that 
person's authority to direct the organization. Section 101 (a)(44)(B) of the Act, 8 U.S.c. § 
I 101 (a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of that organization. Inherent to the definition, the organization must 
have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-ta-day operations 
Page 6 
of the enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial employee. 
The beneficiary must also exercise "wide latitude in discretionary decision making" and receive only 
"general supervision or direction from higher level executives, the board of directors, or stockholders of 
the organization." Id. 
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 fact that the beneficiary is a 
shareholder of the organization is insufficient to establish the beneficiary's employment in an executive 
capacity. 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 ofthe petitioning organization. See section 101 (a)(44)(A) of the Act. 
Therefore, the AAO is not persuaded that the beneficiary would be employed in a primarily managerial 
capacity. 
The denial decision also stated that based on the beneficiary's ownership of the U.S. company, the 
beneficiary will not be an employee. In the documentation submitted with the petition, the petitioner 
stated that the beneficiary is the sole owner of both the foreign company and the petitioner. On appeal, 
the petitioner states that "new officers and directors were elected and a new ownership agreement 
changed the ownership of the petitioner." As evidence, the petitioner submits the Minutes of Special 
Meeting of Shareholders and Directors, dated June 8, 2010, that indicated a new owner.~ 
whereby the petitioner is owned by the foreign company (40%), an~ 
(30%). Thus, the new ownership agreement no longer indicates that the foreign company has a qualifying 
relationship with the petitioner. Furthermore, the minutes of a meeting are insufficient evidence of the 
shareholders that have control over the foreign company. The petitioner failed to present articles of 
organization, agreements, amendments or any documentation to corroborate the claim made in this letter. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter ofSaffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter of Treasure Craft afCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Without full disclosure 
of all relevant documents, USCIS is unable to determine the elements of ownership and control. 
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 Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(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 AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in making 
the initial decision except as it may limit the issues on notice or by rule. "); see also, Janka v. u.s. Dept. of 
Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Page 7 
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. 
I.