dismissed EB-1C Case: Retail Management

identifying data deleted to 
prevent clearly JDwarranted 
invasion of personal privacy 
PtmLTC ('Opy 
DATE: NOV 1 4 2011 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
lJ. 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: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(J)(C) of the Immigration and Nationality Act, 8 U.S.C. § J 153(b)(I)(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 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 Fonn 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(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, Texas Service Center, The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed, 
The petitioner is an Alabama corporation that seeks to employ the beneficiary as its president. Although the 
petitioner indicates that it is an investment company that seeks to purchase gas stations and convenience 
stores, at the time of filing the petition, the petitioner was comprised of a single convenience store operation, 
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. § IIS3(b)(I){C), as a multinational 
executive or manager. 
The director denied the petition based on two grounds of ineligibility. The director concluded that the 
petitioner failed to establish that (I) a qualitying relationship exists between the petitioner and the 
beneficiary's foreign employer and (2) that the beneficiary would be employed in the United States in a 
qualitying managerial or executive capacity, 
On appeal, counsel disputes the director's decision and contends that the petitioner IS eligible for the 
immigration benefit sought herein. 
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 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 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- I 40 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, 
· . 
Page 3 
The first issue to be addressed in this proceeding is whether the petitioner submitted sufficient evidence to 
establish that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. 
Section IOI(a)(44)(A) of the Act, 8 V.S.c. § I 10 I (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 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 beneficiary, on behalf of the petitioner, submitted a statement dated August 
5, 2008 in which she provided a percentage breakdown of her job duties and responsibilities in the proposed 
employment with the U.S. entity. The beneficiary indicated that: 45% of her time would be allocated to 
business growth and development, which would include expanding the business, strategic planning, reviewing 
." . 
company finances to detennine where to cut andlor expand costs, determining marketing techniques and 
promotions to attract customers and sell products, researching investment opportunities, and taking charge of 
the acquisition of new businesses; 25% of her time would be allocated to financial duties, including 
conducting and reviewing budget analyses, reviewing monthly reports that show the petitioner's business 
activity as well as its earnings and expenses, and contacting banks to set up corporate accounts and acquire 
financing; 15% of her time would be allocated to overseeing payroll issues and problems with vendors, hiring, 
firing, and training employees, negotiating purchase contracts with vendors, and negotiating lease tenns for 
business properties; and the remaining 15% of her time would be allocated to setting policies, and formulating 
procedures for overall management of the store. The beneficiary stated that the petitioner's store currently 
employs two managers, an assistant manager, and four cashiers for a total of seven employees. 
On November 25, 2009, the director denied the petition concluding, in part, that the petitioner failed to 
establish that the beneficiary's proposed position with the U.s. entity would involve the perfonnance of 
primarily managerial- or executive-level tasks.l The director observed that the petitioner consists of a single 
retail operation, which would require the beneficiary to perfonn productive tasks that are not within a 
managerial or executive capacity. 
On appeal, counsel restates portions of the beneficiary's job description and claims that the majority of the 
beneficiary's duties are of an executive nature. Counsel contends that the director made "a sweeping 
conclusion" based primarily on the nature of the petitioner's business and failed to acknowledge that the 
petitioner has employees to perfonn the daily non-qualifying operational tasks. Counsel refers to a district 
court case in support of the assertion that a beneficiary can be employed in a qualifying capacity even in the 
context of a small business. 
The AAO finds that counsel's arguments are unpersuaSlve and fail to overcome the director's adverse 
conclusion. 
First, the AAO notes that when determining the executive or managerial capacity of the beneficiary, the 
description of the proposed job duties must be examined. See 8 CF.R. § 204.5G)(5). The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 
(ED.N.Y. 1989), affd, 905 F.2d 41 (2d. CiL 1990). In the present matter, the job description is overly vague 
and fails to convey a meaningful understanding of the specific tasks the beneficiary would perfonn in the 
context of a single convenience store operation. For instance, the petitioner indicated that the beneficiary 
expands business through strategic planning. The petitioner fails to assign any specific tasks to provide an 
idea of what is meant by "strategic planning," i.e., what actual tasks are involved in planning strategies or 
what the strategies even are. The job description also indicates that the beneficiary reviews the company's 
finances and conducts budget analysis. The petitioner provided no clarifying infonnation to establish how 
these two items are different. The petitioner did not explain what different tasks are involved in reviewing 
finances as opposed to conducting a budget analysis. Although the petitioner indicated that the beneficiary 
I Although the record shows that U.S. Citizenship and Immigration Services (USCIS) issued a request for additional 
evidence (RFE) followed by a notice of intent to deny (NOlO), neither notice addressed the beneficiary's job duties or 
her employment capacity in her proposed position with the U.S. entity. As such, the petitioner's responses to the RFE 
and the subsequent NOlO need not be discussed when addressing the issue of the beneficiary's proposed employment 
with the U.S. entity. 
Page 5 
would review monthly reports of income and earnings, this too must be distinguished from reviewing the 
company's finances and conducting a budget analysis. 
The beneficiary's job description also includes a number of non-qualifying tasks, including her direct 
involvement with customers and vendors in resolving problems, searching for new investment opportunities, 
and engaging in marketing and promotion activities in an effort to sell items that are part of the petitioner's 
convenience store inventory. 
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-qualifying tasks the beneficiary would 
perform are only incidental to 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 present matter, the job description provided is 
replete with generalities and strongly indicates that a considerable portion of the beneficiary's time would be 
allocated to the performance of non-qualifying tasks. Merely asserting that the petitioner has employees who 
carry out some of the store's operational tasks is not sufficient to establ ish that the beneficiary is relieved 
from having to primarily devote her time to the performance of other non-qualifying tasks that are not carried 
out by store employees. 
As indicated above, in order to determine what the beneficiary would primarily do on a daily basis, the 
petitioner must provide a thorough job description that adequately delineates the beneficiary's specific tasks. 
The AAO will then consider this information in the context of the type of business the petitioner is operating 
and the beneficiary's placement within the hierarchy of that specific business. While it is true that a small 
business with a limited support staff may be able to establish eligibility under section 203(b)( 1 )(C) of the Act, 
its small size will not serve as an excuse to overlook statutory or regulatory requirements, which strongly 
emphasize that the beneficiary of an approved petition must primarily perform job duties that are within a 
qualifying managerial or executive capacity. If a small business requires the beneficiary to allocate a 
considerable portion of his or her time to non-qualifying tasks, it may be the case that such a business has not 
advanced to the level of complexity wherein it requires the services of someone who will primarily focus on 
managerial- or executive-level tasks. 
In the present matter, the Form 1-140 was filed by an entity that at the time of filing was operating as a single 
convenience store. While the petitioner indicated in the Form 1-140 that the nature of its business involves 
investing in other businesses, there was no evidence in the record that the petitioner's key focus was anything 
other than running the only retail operation it had at the time of filing. Moreover, if the beneficiary's primary 
concern was seeking out other businesses for the petitioner to invest in, the petitioner would have to provide 
further clarification to establish that the beneficiary would oversee rather than actually carry out the 
operational tasks associated with finding business investments. 
Lastly, with regard to counsel's reference to the case of Mars Jewelers Inc. v. IN.S., the AAO finds that the 
emphasis on this case was misplaced. The court clearly states in its decision that the error made by the legacy 
Immigration and Naturalization Service (INS) was applying the 1987 regulations instead of the 1983 
regulations to a petition filed in 1986. Mars Jewelers Inc. v. IN.S., 702 F. Supp. at 1570, 1575. Thus, while 
the court found that the beneficiary in that matter was not a first-line supervisor under the 1983 regulations, it 
Page 6 
implied that this would not have been the case had the 1987 regulations applied. Id. at 1575. Specifically, the 
court in Mars Jewelers Inc. v. INS stated the following: 
It is apparent that the INS was inappropriately applying its 1987 regulations to this 
factor. Under the 1987 regulations, one of the requirements of a manager is that he 
"supervises and controls the work of other supervisory, professional or managerial 
employees .... " 8 C.F.R. 214.2(l)(1)(ii)(B) (1988). This language is not in the 1983 
regulations. 
Id. (footnote omitted). Thus, contrary to the assertions of counsel, as the present petition was filed in 2008, it 
would have been legal error for the director to apply the obsolete 1983 regulations and the holding in Mars 
Jewelers Inc. v. INS to the present matter. 
Furthermore, in contrast to the broad precedential authority of the case law of a United States circuit court, the 
AAO is not bound to follow the published decision of a United States district court in cases arising within the 
same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO, however the analysis does not 
have to be followed as a matter of law. Id. at 719. 
In summary, the record is insufficient to establish that the beneficiary would be employed by the petitioner in 
a qualifying managerial or executive capacity. As discussed above, the job description provided by the 
petitioner is often repetitive in its restatement of vague managerial functions and generally lacks adequate 
detail conveying the specific job duties the beneficiary would perform in the context of the petitioner's 
business as it existed at the time of filing. Without additional information clarifying what tasks the 
beneficiary would perform on a daily basis in the scheme of its specific type of retail operation, the AAO 
cannot conclude that the beneficiary would allocate the primary portion of her time to the performance of 
qualifying managerial or executive tasks and on the basis of this conclusion the petition cannot be approved. 
The other issue that was addressed in the director's decision, and which the AAO will now address, is 
whether the petitioner has a qualifying relationship with the beneficiary'S foreign employer. To establish a 
"qualifying relationship" under the Act and the regulations, the petitioner must show that the beneficiary'S 
foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with a foreign 
office) or related as a "parent and subsidiary" or as "affiliates." See generally § 203(b)(I)(C) of the Act, 8 
U.S.c. § 1153(b)(I)(C); see also 8 C.F.R. § 204.5G)(2) (providing definitions of the terms "affiliate" and 
"subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
· . 
Page 7 
* * * 
Multinational means that the qualifYing entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In the August 5, 2008 supporting statement, the beneficiary stated that the foreign entity is a retail business 
that is owned by two individuals-the beneficiary herself, with a 51 % ownership interest, 
with a 49% ownership interest. The petitioner submitted its own incorporation filing certificate and articles of 
incorporation as well as the foreign entity's deed of partnership and the sale deed for the purchase of property 
where the foreign entity's business was located. 
On April 4, 2009, the director issued a request for evidence (RFE) instructing the petitioner to provide copies 
of its own and the foreign entity's respective stock certificates and stock ledgers showing who owns each 
entity and the purchase prices paid for such ownership. The director also asked the petitioner to provide the 
original partnership deed pertaining to the foreign entity. 
In response, the petitioner provided a copy of its own stock certificate showing the beneficiary as the holder 
of all 1,000 of the company's issued shares. The petitioner also provided a copy of the foreign entity's 
partnership deed which showed the ownership breakdown that was previously described in the beneficiary's 
statement of support dated August 5, 2008. 
On July 2, 2009, the director issued a notice of intent to deny (NOlO) the petition, instructing the petitioner to 
provide the original, rather than a copy, of the foreign entity's partnership deed. 
Although the record contains a letter dated July 13,2009, from the petitioner's counsel who indicated that the 
original document was included in the response per the director's request, counsel expressly instructed the 
director to return the document back to the foreign entity in a return envelope that was apparently provided by 
counsel. As the AAO has not located the original deed during the course of its review of the record, it 
appears that the director complied with counsel's instructions and returned the document as requested. 
Based on the director's statements in the November 25,2009 denial, it appears that the director reviewed the 
original partnership deed and found that the percentages establishing the ownership breakdown of the foreign 
partnership appear to have been altered thus giving the director cause to doubt the validity of this document. 
The director also determined that, while the U.S. and foreign entities share some common ownership, the fact 
that does not have ownership interests in both entities indicates that the requisite qualifYing 
relationship does not exist between the petitioner and the beneficiary's employer abroad. 
On appeal, counsel admits that the foreign entity's partnership deed was altered, but contends that the change 
in the document was made prior to the signing of the deed and prior to the partnership's formation. In a 
separate appellate brief, counsel also contends that the beneficiary's majority ownership of both the U.S. and 
foreign entities indicates that a qualifYing relationship does exist. 
-Page 8 
The AAO finds that counsel's analysis of the claimed ownership breakdown is valid in the sense that the 
beneficiary's majority ownership of both entities, if supported by reliable documentation, would in fact 
indicate that the two entities are affiliates based on the regulatory definition at 8 C.F.R. 
§ 204.5(j)(2). Therefore, to the extent that the director erroneously focused of 
ownership interest as a dispositive factor in establishing a qualifYing relationship, the AAO will withdraw the 
director's statements. However, as previously noted, the key to establishing the existence of a qualifYing 
relationship is reliable documentation. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofflei, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972». In the present matter, the director determined that the document that attests to the foreign entity's 
ownership was altered and thus unreliable. The petitioner does not dispute the finding that the document was 
altered. Rather, the petitioner submits affidavits from third parties in an effort to lend credibility to the altered 
document. The AAO finds that such evidence is little more than claims made by the petitioner itself and is 
therefore insufficient to overcome the director's adverse finding regarding the reliability of the foreign 
partnership deed. Because the foreign entity's ownership is a key factor in establishing that a qualifYing 
relationship exists between the petitioner and the foreign entity, the petitioner's failure to provide sufficient 
reliable evidence to establish the ownership and control of the foreign entity precludes the approval of this 
petition. 
Additionally, while not previously addressed in the director's decision, the AAO finds that the petitioner has 
failed to provide sufficient information regarding the beneficiary's employment abroad. As such, the AAO 
cannot affirmatively conclude that the beneficiary was employed abroad in a qualifYing managerial or 
executive capacity. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even ifthe 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)', ajj'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.