dismissed EB-1C Case: Retail And Investment

identibing data deleted to 
prevent clearly unwanmted 
invasim of personal pEi- 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
-Pu 
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office: TEXAS SERVICE CENTER Date: APA 2 4 2006 
SRC 03 161 52127 
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: 
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. 
Administrative Appeals Office 
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 Texas corporation claiming that the purpose of its enterprise is "to conduct business in the 
retail trade and investment areas." It seeks to employ the beneficiary as its business development manager. 
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 1153(b)(l)(C), as a 
multinational executive or manager. The director determined that the petitioner failed to establish that the 
beneficiary's position abroad and her proposed position in the United States involve duties that are primarily 
within a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of her arguments. 
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 two issues in this proceeding call for an analysis of the beneficiary's employment capacity. The first 
issue is whether the beneficiary was employed abroad in a primarily managerial or executive capacity, and the 
second issue is whether the petitioner established at the time it filed the Form 1-140 that the beneficiary would 
be primarily employed in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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) of the Act, 8 U.S.C. 5 1 lOl(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 submitted a letter dated April 28, 2003, which contained the 
following descriptions of the beneficiary's position abroad and her proposed position in the United States: 
Abroad: 
General administration of the firm; 
Directing business activities of the firm and managing the business operations; 
Analyzing the prevailing market trends for future investments in the dairy farming and 
hospitality industries; 
Investigating new markets and negotiating new contracts; 
Supervising and controlling the work of employees; 
Setting strategic marketing goals; 
Setting sales quotas and expenses; 
Performing advertising and promoting company products and services; 
Directing sales activities such as import and shipment of items, invoicing products, and 
receipt of payments; 
Marketing of products and services; 
Expanding the business; 
Overseeing marketing personnel; 
Hiring, supervising, promoting and firing managerial and professional personnel; [sic] 
Proposed Position: 
Be responsible for the expansion of [the petitioner]; 
Plan and develop the U[.]S[.] investments, analyze market trends, set strategic planning 
goals and policies and be responsible for the sales efforts of the [clompany; 
Confer with the parent corporation relating to business development activities of the parent 
and the subsidiary corporations. 
Oversee the invoicing of products and receipt of payments in a timely manner; 
Be responsible for operating the business in all material aspects including payments of all 
debts, payment of employee salaries, employee salaries, employee taxes, and keep the 
business and its activities in full compliance with all licensing regulations; 
Be responsible for formulating policies regarding sales and marketing. 
Be responsible for hiring and firing personnel in the sales and marketing areas; 
Promote the group in conferences and trade organizations. 
Approve public relation policies. 
Approve hiring of professional services; 
Negotiate contracts with suppliers and manufacturers. 
On June 13, 2005, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide its own organizational chart and the organizational chart of the beneficiary's foreign employer 
illustrating the beneficiary's position within each entity. The petitioner was also asked to provide additional 
detail accompanied by percentage breakdowns of the duties the beneficiary performed abroad and would 
perform in the United States under an approved petition. 
Counsel responded with a letter dated August 31, 2005 describing the petitioner's submissions in response to 
the director's RFE. Counsel stated that the beneficiary would be relieved from having to perform the 
petitioner's nonqualifying tasks, which would be performed by the lower level employees. 
With regard to the foreign entity's organizational chart, the beneficiary's position is depicted as second from 
the top of the hierarchy. The chart indicates that the accounts/finance manager occupied the same position as 
the beneficiary within the foreign entity's hierarchy. The chart further shows that the foreign entity is 
involved in two business ventures and is divided accordingly with one side of the chart showing the 
employees that work in the hotel owned by the foreign entity, and the other side naming the employees that 
were related to the foreign entity's ownership of a cattle farm. As the beneficiary and the accounts/finance 
manager are both illustrated as second tier managerial employees, it is unclear whether the beneficiary 
supervises employees in both of the foreign entity's business ventures. With regard to the hotel, the positions 
of hotel manager and night manager are shown as the direct subordinates of one or both of the second tier 
managers. With regard to the cattle farm, the cattle farm manager and the cattle purchase manager are shown 
as the direct subordinates of one or both of the second tier managers. It is noted that an accountant is also 
shown as the subordinate to one or both of the second tier managers. 
The petitioner provided the following percentage breakdown of the beneficiary's duties/responsibilities 
abroad: 
General administration of the firm; (10%) 
Directing business activities of the firm and managing the business operations; (15%) 
Analyzing the prevailing market trends for future investments in the daily farming and 
hospitality industries; (15%) 
Investigating new markets and negotiating new contracts; (10%) 
Supervising and controlling the work of subordinates; (5%) 
Setting strategic marketing goals; (5%) 
Setting sales quotas and expenses; (5%) 
Page 6 
Performing advertising and promoting company products and services; (5%) 
Directing sales activities such as import and shipment of items, invoicing products, and 
receipt of payments; (5%) 
Marketing of products and services; (5%) 
Expanding the business; (10%) 
Overseeing marketing personnel; (5%) 
Hiring, supervising, promoting and firing managerial and professional personnel; (5%) 
The petitioner also submitted its own organizational chart illustrating the beneficiary's position directly in the 
middle of the organization's hierarchy with two management tiers directly above the beneficiary and two tiers 
of employees directly below her. Similar to the foreign entity, the beneficiary's position within the hierarchy 
is at the same level as the accounts/finance manager. The chart indicates that the employees directly 
subordinate to the beneficiary and the accounts/finance manager include an assistant manager, a contracted 
bookkeeper, and a contracted maintenance employee. The petitioner described the beneficiary's proposed 
position as follows: 
Responsible for the expansion of [the petitioner]; [lo%] 
Plans and develops the U[.]S[.] investments, analyze market trends, set strategic planning 
goals and policies and be responsible for the sales efforts of the [clompany; [lo%] 
Confers with the parent corporation relating to business development activities of the 
parent and the subsidiary corporations; [lo%] 
Oversees the invoicing of products and receipt of payments in a timely manner; [lo%] 
Responsible for operating the business in all material aspects including payments of all 
debts, payment of employee salaries, employee taxes, and keep the business and its 
activities in full compliance with all licensing regulations; [15%] 
Responsible for formulating policies regarding sales and marketing; [5%] 
Responsible for hiring and firing personnel in the sales and marketing areas; [lo%] 
Promotes the group in conferences and trade organizations; [5%] 
Approves public relation policies; [5%] 
Approves hiring of professional services; [lo%] 
Page 7 
Negotiates contracts with suppliers and manufacturers; [lo%] 
Additionally, the petitioner provided its second quarterly wage report for 2003, which encompasses the time 
period when the Form 1-140 was filed. The report identified five individuals only one of whom was also 
named in the organizational chart that was submitted in response to the RFE. 
On September 12, 2005, the director denied the petition concluding that the petitioner failed to establish that 
the beneficiary's position abroad and her proposed position in the United States could be deemed managerial 
or executive. The director noted that while the beneficiary apparently exercises discretion over the 
petitioner's daily operation, the record does not establish that she primarily performs qualifying duties. The 
director further commented on the beneficiary's earnings for 2003, which suggest that she was only employed 
on a part-time basis when the petition was filed. 
The director also questioned the likelihood that the beneficiary possessed five years of managerial experience 
when she commenced her employment abroad in light of her date of birth. It is noted that the director's 
interpretation of the petitioner's statements resulted in her doubting the petitioner's overall credibility. 
On appeal, counsel properly asserts that there are no statutory or regulatory provisions that require the 
petitioner to establish the beneficiary's full-time employment prior to the approval of the petition. 
Accordingly, the director's erroneous comment, which suggests that the beneficiary must be employed by the 
petitioning entity in a full-time capacity at the time of filing the Form 1-140, is hereby withdrawn. 
Counsel also asserts that the director's reference to the beneficiary's salary suggests that she placed too much 
emphasis on the size of the petitioner's support staff and completely disregarded the possibility that the 
beneficiary would be employed as a function manager. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e. identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 
8 C.F.R. 3 204.5Cj)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
An employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988)). 
Therefore, while counsel is correct in stating that the beneficiary need not assume the position of a personnel 
manager, the petitioner nevertheless has the burden of establishing that it is adequately staffed such that the 
beneficiary's daily duties are primarily within a qualifying managerial or executive capacity. In the instant 
matter, however, the record with regard to the beneficiary's proposed position does not support the claim that 
the beneficiary's duties would primarily be of a qualifying nature. At the time the petitioner filed its Form I- 
140, it was staffed with five employees, four of whom were apparently employed on a part-time basis and 
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were not identified in the organizational chart. 
 Thus, their duties, job titles, and positions within the 
petitioner's organizational hierarchy are entirely unknown. Furthermore, of the eight employees listed in the 
petitioner's organizational chart, the only employee identified in the 2003 second quarterly wage report was 
the company's vice president. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 
(Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972)). As the 
petitioner has failed to submit documentation establishing that the employees listed in the organizational chart 
were actually employed at the time the Form 1-140 was filed, the petitioner's organizational hierarchy during 
the relevant time period is entirely unknown. Moreover, the information in the organizational chart is entirely 
inconsistent with the information provided in the petitioner's second quarterly wage report. 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). As 
the petitioner has failed to provide the AAO with consistent information as to the structural make-up of its 
organization, it is virtually impossible to determine who was performing which duties and who the 
beneficiary's direct subordinates would have been at the time the Form 1-140 was filed. 
Additionally, in examining the executive or managerial capacity of the beneficiary, Citizenship and 
Immigration Services (CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 
fj 204.5(i)(5). In the instant matter, the percentage breakdown provided in response to the director's RFE 
implies the existence of a subordinate staff and a hierarchical structure, which have not been established. For 
example, the petitioner claims that the beneficiary would oversee invoicing and receipt of payments. 
However, there is no indication as to who would actually perform the invoicing and payment collection. 
Although the beneficiary would purportedly oversee the marketing function, there is no indication who would 
actually be performing the duties related to the function. The petitioner has also failed to define the 
beneficiary's proposed job responsibilities within the context of the retail outlet such as the one it operates. 
As such, the AAO is completely unable to ascertain what duties would be involved in planning goals, 
policies, and strategies, which purportedly account for 20% of the beneficiary's time. Nor has the petitioner 
explained what types of conferences the beneficiary would be expected to attend to promote its organization, 
which appears to be a convenience store and gas station. 
While the petitioner emphasizes the beneficiary's discretionary authority, there is no clear explanation as to 
what the beneficiary would actually do on a day-to-day basis or how the beneficiary's responsibilities fit the 
needs of the petitioner's specific type of business. 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. 1103 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Counsel repeatedly refers to the petitioner's early stage of development, suggesting that a large staff is not 
required to meet the petitioner's business needs. While this may be true, there is no statute or regulation that 
allows a petitioner's needs to override the statutory mandate that the beneficiary's duties must, regardless of 
all else, be primarily managerial or executive. Counsel's reference to unpublished AAO decisions does not 
outweigh the statutory requirements. See 8 C.F.R. fj 103.3(c). 
With regard to the beneficiary's position abroad, the petitioner has provided a confusing organizational chart, 
which fails to specifically identify the beneficiary's direct subordinates, and a job description, which fails to 
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convey an understanding of the actual duties the beneficiary performed on a daily basis. There is absolutely 
no indication as to the specific tasks involved in the general administration of the firm or the directing and 
managing of business operations. Nor is there any clue as to the factors that purportedly distinguish general 
administration from directing and managing business operations. The petitioner also failed to state what 
activities are involved in expanding the business. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108. In the instant matter, the petitioner's failure 
to provide the actual duties that comprise these general responsibilities leaves 35% of the beneficiary's overall 
job duties entirely undefined. 
The petitioner also indicated that a significant portion of the beneficiary's job was related to marketing. 
However, there is no indication as to who actually performed the marketing function, as none of the 
employees identified in the foreign entity's organizational chart were defined as marketing employees. 
Although 15% of the beneficiary's job was purportedly devoted to analyzing market trends, there is no 
information as to who actually provided the information that the beneficiary analyzed. 
While counsel adequately addresses the director's concern regarding the petitioner's reference to the 
beneficiary's five years of managerial experience abroad, the record still lacks a detailed job description and 
illustration of the foreign entity's organizational hierarchy. Without this crucial information, the AAO cannot 
conclude that the beneficiary was employed abroad in a primarily qualifying managerial or executive 
capacity. 
On review, the record as presently constituted is not persuasive in demonstrating that a majority of the 
beneficiary's duties have been and will be primarily managerial or executive. Neither position description 
adequately describes the beneficiary's duties. Moreover, with regard to the beneficiary's proposed duties, the 
record indicates that the petitioner lacks the organizational complexity wherein the hiringifiring of personnel, 
discretionary decision-making, and setting company goals and policies would constitute significant 
components of the duties performed on a day-to-day basis. Based on the evidence furnished, the AAO cannot 
conclude that the beneficiary has been or will be employed primarily in a qualifying managerial or executive 
capacity. For this reason, the petition may not be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. 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). 
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. 3 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.