dismissed EB-1C Case: Retail Management

.l identifying data deleted to 
prevent clearly unwarranted 
invasion of personal pnvac, 
tlUBLTC COpy 
FILE: 
IN RE: 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 
NEBRASKA SERVICE CENTER DatMAR 01 2011 
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 USC. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen, The 
specific requirements for filing such a request can be found at 8 C.F.R, § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630, Please be aware that 8 C.F,R. § 103.5(a){l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
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 corporation that seeks to employ the beneficiary as its general 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. § 1 1 53(b)(I)(C), as a 
multinational executive or manager. The director denied the petition based on the conclusion that the 
petitioner failed to establish that the beneficiary would be employed in the United States in a managerial or 
executive capacity. 
On president of the petitioning entity, provided a brief dated July 14, 2009 on behalf of 
the petItIOner. asserts that the director erroneously restated facts regarding the petitioner's 
organizational hierarchy and that this error resulted in the director's adverse decision. _appellate 
brief will be addressed in a full discussion below. 
Section 203(b) ofthe 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 I year by a firm or 
corporation or other legal entity or an affiliate or subsidiaty 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 101(a)(44)(A) of the Act, 8 U.S.C. § 1 10 I (a)(44)(A), provides: 
Page 3 
The tenn "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 10 I (a)(44)(B) of the Act, 8 U.S.C. § I I o I (a)(44)(B), provides: 
The tenn "executive capacity" means an assignment within an organization In which the 
employee primarily--
(il 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 Fonn 1-140, the petitioner provided a description of the beneficiary's proposed employment 
and supplemented this infonnation with time constraints to indicate how much of the beneficiary's time would 
be allocated to human resources, fiscal operations, marketing and advertising, quality control, and inventory 
control. The AAO need not repeat the job description as this information has been stated in the director's 
decision. Although the petitioner also provided an organizational chart showing its staffing hierarchy as of 
December I, 2007, the AAO will not address this document, as it is unclear whether the same hierarchy was 
still in place as of May 23, 2008 when the Fonn 1-140 was filed. 
On February 9, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a supplemental description of the beneficiary's proposed employment, including the beneficiary's 
-Page 4 
actual job duties and a discussion of the beneficiary's subordinate(s) and their respective levels of authority. 
The petitioner was also asked to provide a detailed organizational chart showing the beneficiary's position in 
relation to others in the company. Additionally, the petitioner was instructed to provide its 2008 quarterly 
wage reports for the first and second quarters. It is noted that the instant Form 1-140 was filed during the 
2008 second quarter. Therefore, the 2008 second quarterly wage report would identify whom the petitioner 
employed at the time of filing. 
In response, the petitioner provided a percentage breakdown similar to the one that was initially in 
support of the petition. With regard to the beneficiary'S role in human generally restated 
the beneficiary's hiring, firing, and training authority along with the authority to establish goals and policies. 
The only specific job duty that was listed in this portion of the job description was meeting with department 
managers on a weekly basis. No time allocation was provided with regard to this duty. _continued, 
stating that the beneficiary would "direct [fJranchise annual meetings where [the beneficiary] will meet with 
subordinates on a bi-weekly basis to review all staff evaluations, authorize salary and benefits, and monitor 
the job duties and responsibilities for each employee." With regard to the four remaining elements-fiscal 
operations, marketing and advertising, quality control, and inventory control-the statements were virtually 
in(listinf~ui,;ha.ble from those originally provided in the March 31, 2008 support letter, which was also signed 
in his capacity as the petitioner's president. 
With regard to the petitioner's organizational hierarchy two documents were submitted. The first document is 
the petitioner's organizational flow chart which shows three positions in descending order-president, general 
manager, and assistant manager-followed by an executive assistant, two meat counter employees, a 
stocker/cleaner, and two cashiers under the supervision of the assistant manager. The second document is the 
petitioner's 2008 employee timetable, which names a lotal of eighteen employees-seven stocker/cleaners, six 
meat counter employees, and five cashiers-and provides each employee's weekly work schedule. 
Additionally, the petitioner's second quarterly wage report was also provided, showing that the petitioner 
employed no more than eight employees during each of the three months that comprised the second quarter. 
Four of the named employees were shown with wages totaling under $400 and four other employees were 
shown with salaries that were commensurate with part-time employment. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to establish that 
the beneficiary would be employed in a qualifying managerial or executive capacity and denied the petition in 
a decision dated June 12, 2009. 
on behalf of the , subsequently filed an appeal challenging the director's findings and 
ultimate basis for denial. asserts that the RFE erroneously referred to the petitioner as having nine 
employees, claiming that this review of facts is inconsistent with a subsequent statement in the RFE where it 
was acknowledged that the petitioner employed eighteen employees. 
A review of the record in its entirety indicates assertions are without merit. First, the AAO 
notes that the director did not provide an analysis in the RFE. The RFE merely contained a list of documents 
and information that U.S. Citizenship and Immigration Services (USCIS) sought to elicit from the petitioner. 
Rather, the record shows that an analysis of the petitioner's organizational hierarchy and employee structure 
was provided in the director's most recent decision the petitioner's Form 1-140. Moreover, the 
director's restatement of facts was not inconsistent suggests. The director was merely reviewing 
Page 5 
information that was provided by the petitioner in various submissions. Specifically, the director reviewed 
the information in the petitioner's flow chart, which was part of Exhibit I and in which the petitioner listed a 
total of nine positions. The director also reviewed the petitioner's 2008 employee timetable, which was 
submitted as part of the same exhibit and which named a total of eighteen employees not includin~ or 
the beneficiary. Thus, while the director's summary clearly contained an inconsistency, the inconsistency was 
not the result of the director's error, but rather was created by the petitioner itself in its own account of its 
organizational hierarchy. The AAO also points out the additional inconsistency in the petitioner's 2008 
second quarterly wage report, which indicates that at no time during any of the three months that comprise the 
second quarter did the petitioner employ more than eight employees. Based on this fact alone, it would 
appear that both the petitioner's organizational flow chart and the 2008 employee timetable are misleading 
and unreliable in establishing the number of employees the petitioner actually had at the time the Form 1-140 
was filed. 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). The AAO further notes that doubt cast on any aspect of the petitioner's proof may 
lead to a reevaluation of the reliability and sufficiency ofthe remaining evidence offered in support of the visa 
petition. Id. at 591. 
Although the petitioner provided a more elaborate organizational chart with several management tiers 
separating the beneficiary from the non-managerial and non-professional workers, the fact that this chart is 
entirely different from the one previously provided and in light of the inconsistencies that were created by the 
previously submitted documentation, the AAO finds that the organizational chart submitted on appeal cannot 
be deemed as an accurate depiction of the petitioner's staffing hierarchy at the time of filing the petition. Id. 
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Malter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 197 I). A petitioner may 
not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of /zummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Additionally, aside from the petitioner's diminished credibility, the AAO finds that the petitioner failed to 
provide the requested information with regard to the beneficiary'S proposed employment. 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). In the instant matter, the job description offered is overly vague and 
thus fails to convey a meaningful understanding of exactly what the beneficiary will be doing on a daily basis 
and how much of his time would be spent performing qualifYing tasks versus the non-qualifYing ones. For 
instance, the description of duties indicates that the beneficiary would assist the company president in 
establishing goals and policies. However, no actual tasks are cited to clarifY the beneficiary'S role; nor has the 
petitioner offered any examples of goals and policies that the beneficiary has established thus far. The 
petitioner's claim that the beneficiary would direct annual franchise meetings where he would meet bi-weekly 
with subordinates is also confusing and requires further clarification. If this is an activity that the beneficiary 
does annually, it is unclear why the associated activities with respect to employee salaries, benefits, and 
evaluations take place on a bi-weekly basis. Moreover, using such broad terminology as "directs" or 
"oversees" requires a further explanation of the means by which these responsibilities are met in the 
beneficiary's daily activities. 
Page 6 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualitying tasks the beneficiary would 
perform are only incidental to his/her proposed position. 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). In the instant case, the record lacks sufficient 
information to indicate what specific duties the beneficiary would primarily be performing. This considerable 
deficiency coupled with the itTegularities and anomalies concerning the petitioner's organizational hierarchy 
preclude the AAO from finding I) that the petitioner is sufficiently complex to require the services of 
multiple managerial or executive employees and 2) that the petitioner was adequately equipped with the 
necessary staffing to relieve the beneficiary from having to primarily perform non-qualitying tasks. As such, 
the AAO cannot affirmatively conclude that the beneficiary would be employed in a managerial or executive 
capacity and on the basis of this conclusion, the instant petition cannot be approved. 
Furthermore, while not previously addressed in the director's decision, the record does not support a finding 
of eligibility based on the petitioner's failure to show that it meets the provisions of 8 C.F.R. 
§ 204.5(j)(3)(i)(B), which states that the petitioner must establish that the beneficiary was employed abroad in 
a qualitying managerial or executive position for at least one out of the three years prior to his entry to the 
United States as a nonimmigrant to work for the same employer. The AAO finds that the petitioner failed to 
provide an adequate job description delineating the specific job duties that the beneficiary performed during 
his employment abroad. The petitioner provided a nearly identical job description regarding the beneficiary's 
foreign employment as the deficient description that was provided with regard to the proposed employment. 
As indicated above, an adequate job description requires a detailed delineation of the actual job duties that the 
beneficiary performed, as the actual duties themselves reveal the true nature of the employment. _ 
Co., Ltd v. Sava, 724 F. Supp. at 1108, ajJ'd, 905 F.2d 41 (2d. Cir. 1990). In the instant matter, the director 
specifically addressed this issue in the RFE by instructing the petitioner to provide a detailed analysis of the 
beneficiary's daily job duties and the percentage of time he allocated to each task during his employment 
abroad. However, the petitioner's response failed to adequately comply with the director's instructions. 
Therefore, based on the information provided, the AAO cannot conclude that the primary portion of the 
beneficiary's time abroad was allocated to managerial- or executive-level tasks. 
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 identity all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (ED. Cal. 2001), ajJ'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 FJd 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
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. § \361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.