dismissed EB-1C Case: Retail

(b)(6)
DATE: JUN 1 7 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrativ e Appeals Office (AAO) 
20 Massachus etts Ave. N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA 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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please fmd 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.P.R . § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.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, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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 Texas corporation that is engaged in the retail distribution of liquor, gas, 
automotive, and household products ''under the business name of ' '." The 
petitioner 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)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a 
multinational executive or manager. 
On September 7, 2012, the director denied the immigrant petition concluding that 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. 
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 I-140 for classification of an alien under 
section 203(b )(1 )(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. 
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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 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(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) ofthe 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 ofthe 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. 
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In examining the executive or managerial capacity of the beneficiary, US CIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). Published case law clearly 
supports the pivotal role of a clearly defmed 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), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). Further, 
USCIS reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the 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. 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 vague duties 
such as the beneficiary will have the "overall responsibility of planning and developing the U.S. 
investment, executing or recommending personnel actions, placing a management team to run the 
operations, supervising all fmancial aspects ofthe company and developing policies and objectives 
for the company." The petitioner also provided a percentage breakdown of time spent on each duty 
as follows: Management decisions (25%); Company Representation (15%); Financial 
Representation (15%); Supervision of the company day to day operations (10%); Business 
Negotiations (15%); and, Organizational Developments (10%). This description provides little 
insight into what the beneficiary will primarily do on a day-to-day basis as President/CEO, and the 
petitioner did not explain the strategies of development or defme the petitioner's goals and policies. 
The petitioner also did not clearly explain what employees and departments will assist the beneficiary 
in performing his job duties. Furthermore, 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 ofthe 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 "negotiating and supervising the drafting of purchase agreements," "developing 
trade and consumer market strategies," and "overseeing the legal and fmancial due diligence 
process and resolving any related issues." The petitioner did not indicate who will be in charge of 
the market research, the development of the marketing program, the development of the expansion 
strategies, or who will be responsible for the fmancial operations. In addition, negotiating purchase 
agreements is an operational duty and not a managerial or executive task. It appears that the 
beneficiary will be operating the business rather than directing the activities of 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. See sections 101(a)(44)(A) and (B) ofthe Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Intn '!., 19 I&N 
Dec. at 604. 
(b)(6)
Page 5 
The job description submitted by the petitioner provides little insight into the true nature of the tasks 
the beneficiary will perform. While the petitioner has provided a breakdown of the percentage of 
time the beneficiary will spend on various duties, the petitioner has not articulated whether each 
duty is managerial or executive. According to the organizational chart submitted by the petitioner, 
it employs the beneficiary as president/CEO, who in tum supervises the general and operations 
manager, the sales manager, the accountant, the retail manager, the assistant manager and two 
cashiers/stockers. According to the Form W-2 and quarterly wage reports, the petitioner employs 
five individuals, not including the beneficiary. The beneficiary is compensated by , the 
affiliate company, and thus, the beneficiary is not included in the Forms 941, quarterly wage 
reports, for the petitioner. Therefore, not all of the individuals listed on the organizational chart are 
actually employed by the petitioner since the chart indicates seven employees rather than the five 
employees listed in the quarterly wage reports. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
On appeal, counsel for the petitioner states that the beneficiary will "plan and direct the 
management of the Petitioner through its own employees, as well as outside contract employees 
who perform the legal and accounting duties." Although counsel states on appeal that the 
petitioner has contractual employees in the areas of accounting and legal services, the petitioner has 
neither presented evidence to document the existence of these employees nor identified the services 
these individuals provide. Additionally, the petitioner has not explained how the services of the 
contracted employees obviate the need for the beneficiary to primarily conduct the petitioner's 
business. Without documentary evidence to support its statements, the petitioner does not meet its 
burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998). 
In the director's denial decision, he noted that according to the Form W-2 for 2011, the salaries of 
the employees appear to be salaries for part:time work or for employees that are not managerial. It 
appears that only two employees, in addition to the beneficiary, fill a full-time position. Thus, it 
does not appear that the beneficiary will have subordinate employees to assist him in the day-to-day 
duties of running the business. 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) ofthe Act (requiring that one 
"primarily'' perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Intn 'l., 19 I&N Dec. at 604. 
The director based his decision partially on the size of the enterprise and the number of staff. As 
required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, UCIS must take into account 
the 
reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. The petitioner run a gas station and convenience store that is most likely open 
seven days a week for several hours each day. The petitioner employs five individuals but it 
appears that three of the employees work on a part-time basis. It is not clear how a gas station and 
convenience store that is open for more than 40 hours per week can operate with two part-time 
employees and two full-time employees and take care of inventory, purchasing, customer service, 
(b)(6)
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stocking, budget, financial operations and running the cash register. The petitioner did not explain 
who would handle the fmancial operations such as budgeting and bookkeeping, purchasing of 
inventory, inventory management, marketing, sales, market research, and other elements of running 
a business. Since the petitioner must establish that the beneficiary would primarily perform 
qualifying duties, it must be demonstrated that the beneficiary would not spend a majority of his 
time performing these non-qualifying duties. 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 10l(a)(44)(A) and (B) ofthe 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). 
The record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. The fact that an individual manages a 
business does not necessarily establish eligibility for classification as an intracompany transferee in 
a managerial or executive capacity within the meaning of section 101(a)(44) ofthe Act. The record 
does not establish that a majority of the beneficiary's duties have been or will be primarily directing 
the management of the organization. The record indicates that a preponderance of the beneficiary's 
duties will be directly providing the services of the business. The petitioner has not demonstrated 
that the beneficiary will be primarily supervising a subordinate staff of professional, managerial, or 
supervisory personnel who relieve him from performing non-qualifying duties. The petitioner has 
not demonstrated that it has reached a level of organizational complexity wherein the hiring/firing 
of personnel, discretionary decision-making, and setting company goals and policies constitute 
significant components of the duties performed on a day-to-day basis. Based on the evidence 
furnished, it cannot be found that the beneficiary will be employed primarily in a qualifying 
managerial or executive capacity. For this reason, the petition may not be approved. 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, 
rather the AAO must determine based on a totality of the record whether the description of the 
beneficiary's duties represents a credible perspective of the beneficiary's role within the 
organizational hierarchy. The record does not demonstrate that the beneficiary has a sufficient 
number of employees in the United States employed full-time who could perform the non­
managerial tasks associated with operating a gas station and convenience store. The petitioner's 
general description of the beneficiary's duties and the lack of sufficient personnel to perform the 
operational tasks of the business make it impossible to conclude that the beneficiary would 
plausibly perform primarily managerial or executive duties. Based on the foregoing discussion, the 
appeal will be dismissed. 
The petition will be denied for the above stated reasons. 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. The petition is denied.