dismissed EB-1C Case: Retail Management

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Office of Admini slralive Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529 -2
090 
U.S. Citizenship 
and Immigration 
Services 
DATE: AUG 2 2 2013 OFFICE: NEBRASKA SERVICE CENTER FILE : 
INRE: Petitioner: 
Beneficiary : 
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. § l153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new construction s of law nor establi sh 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO . 
Th1ota~ 
~o:~g 
' Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeal s Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a branch office of a corporation doing business in the State of l . It seeks 
to employ the beneficiary as its general manager. Accordingly, the petitioner endeavors to classi fy the 
beneficiary as an employment-b ased immigrant pursuant to section 203(b)(l )(C) of the Immigration and 
Nationality Act (the Act) , 8 U.S .C. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition, finding that the petitioner had not established that the beneficiary will be 
employed in an executive or managerial capacity in the United States. 
On appeal, coun sel asserts that the director abused his discretion by ignoring evidenc e establishing that the 
beneficiary will be employed as an executive or manager as defined by the Act. Counsel submits a brief and 
the petitioner's updated employee list in support of the appe al. 
I. The Law 
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 subp aragraph , 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 executive s 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 Unit ed 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)(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 
(b)(6)
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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. 
Section 1 Ol(a)(44)(A) of the Act, 8 U.S. C.§ 110l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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 acttvtty 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 10l(a)(44)(B) of the Act, 8 U.S.C. § ll01(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 
(b)(6)
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NON-PRECEDENT DECISION 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
II. The Issues on Appeal 
A. Employment with the petitioner in a managerial or executive capacity 
The first issue to be addressed is whether the petitioner has established that the beneficiary will be employed 
in a qualifying managerial or executive capacity in the United States. 
In denying the petition on this basis, the director noted that the petitioner had submitted a vague description 
of duties for the beneficiary in his capacity as general manager in the United States. Further, the director 
reasoned that the petitioner had not sufficiently responded to the request for evidence (RFE) in not providing 
sufficient description s of the beneficiary 's claimed subordinates and noted an inconsistency in the record 
regarding the number of employees working for the company. 
On appeal, counsel asserts that the director's decision was an abuse of discretion. Counsel states that the 
petitioner submitted sufficiently detailed description of duties for the beneficiary and contends that the duties 
of his subordinates, which include cashiers, stockers and meat counter staff, should be self-explanatory based 
on their job titles. In support of the appeal, the petitioner submits a more detailed organizational chart that 
includes duty descriptions for the beneficiary's subordinates, as well as an explanation for the variations in 
the petitioner's staff size. 
Upon review of the petition and the evidence, and for the reasons discussed herein, the petitioner has not 
established that the beneficiary acts, or will act, in a qualifying managerial or executive capacity with the 
petitioner. 
In order to determine whether the beneficiary would be employed in a qualifying executive or managerial 
capacity, U.S. Citizenship and Immigration Services (USCIS) will look first to the petitioner's description of 
the job duties. See 8 C.P.R. § 204.5(j)(5). In the RFE, the director requested that the petitioner provide a 
very detailed description of the beneficiary ' s proposed duties in the United States , including an estimate of 
the percentage of time the beneficiary would dedicate to each specific duty. In response, the petitioner 
provided categories of duties with percentages of time spent on each duty category as follows: 
Human Resources (20% of his time) 
Fiscal Operations (20% of his time) 
Marketing & Advertising (25% of his time) 
Quality Control (20% of his time) 
Inventory Control (15% of his time) 
(b)(6) NON-PRECEDENT DECISION 
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The petitioner submitted explanations of the duties encompassed within each gener al duty category . For 
instance, the petitioner explained that the beneficiary's "human resources" duties includ e responsibility for 
the hiring , firing, and training all subordinate managerial personnel and having final say over the hiring of 
their subordinate s; developing organizational policies and goals for the company including those related to 
franchise operation al procedur es, OSHA compliance, food service regulation compliance, and customer 
service standards; directing meetings with management on a bi-weekly basis to manage their performance, 
amongst other dutie s. With respect to "fiscal operations," the petitioner indicated the following dutie s for the 
beneficiary: determining necessary changes in programs or operation s after conferring with staff and 
reviewing reports; ensuring that operating statements complied with company procedur es and are completed 
in a timely manner; implementing changes to reduce costs, and meeting with the president and accountant to 
review all company reports. The petitioner explained that the beneficiary's "marketing and adverti sing" 
respon sibilities include reviewing and authorizing all advertising layouts, negotiating all marketing contracts , 
and overseeing the development of marketing strategies. The beneficiary 's stated duties within the "quality 
control" area include: developing training manuals and procedures for subordinate staff; implementing and 
maintaining quality standards such as hours of operation and store cleanliness; and being responsible for 
food and food storage equipment inspection procedures and procedure s for food ordering. Lastly, the 
petitioner stated that the beneficiary's "inventory control" duties include reviewing all inventory reports to 
determine necessary changes, contacting suppliers in order to negotiate supply, and conferring with 
management to assure the proper ordering of supplies. 
As noted, the director concluded that the dutie s provided for the beneficiary were overly vague. The AAO 
does not concur with this conclusion on the part of the director. However, the petitioner did not provide any 
detail regarding the employment of the individuals claimed to be subordinate to the beneficiary's position. 
For example , although the petitioner claims that the beneficiary will spend 25 percent of his time on 
marketing and advertising duties , the petitioner does not identify any particular employee who performs the 
operational tasks associated with marketing and advertising duties. Accordingly, the petitioner has not 
identified any personnel that will relieve the beneficiary from performing the non-qualifying duties related to 
the actual tasks outlined in the description of the beneficiary 's duties. Likewi se, the petitioner states that the 
beneficiary will spend 20 percent of his time on quality control and an additional 15 percent of his time on 
inventory control. Yet the record does not include evidence that the petitioner employs individuals who 
perform the oper ational tasks associated with maintaining quality control or the operational tasks of 
preparing inventory reports, contacting and negotiating with suppliers, and ordering inventory . An 
employee who "primarily" performs the tasks necessary to produce a product or to provide service s is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections l0l(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive dutie s); see 
also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 (Comm'r 1988). 
Further the petitioner did not adequately support the submitted position description with evidenc e of the 
beneficiary's performance of executive or managerial duties. For instance, the duties assert the beneficiary's 
performance of various duties consistent with an executive or manager, such as hiring and firing managers, 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
creating and implem enting policies and standards, determining necessary changes to programs or operations, 
developing marketing strategie s, and negotiating contracts. However, the petition er has provided few 
specific example s or supporting documentation to establish his actual performance of these dutie s, such as 
manager s hired and fired, specific policies and standards implemented, marketing strategies implemented, or 
documentation of contracts or other negotiations conducted. Going on record without supp011ing 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici , 22 I&N Dec . 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec . 190 (Reg. Comm'r 1972)) . 
When examining the managerial or executive capacity of a beneficiary, USC IS review s the totality of the 
record , including descriptions of a beneficiary' s duties and his or her subordinate employee s, the nature of the 
petitioner 's busine ss, the employment and remuneration of employees , and any other facts contributing to a 
complete understanding of a beneficiary's actu al role in a business. The evidence must substantiate that the 
duties of the beneficiary and his or her subordinates correspond to their placement in an organization's 
structural hierarchy ; at1ificial tiers of subordinat e employees and inflated job titles are not probative and will 
not establish that an organization is sufficiently complex to support an executive or manager position . 
The petitioner did not provide a description of the beneficiary's duties, an organizational chart, or other 
eviden ce of the personnel structure of the company at the time of filing , beyond stating on the Form I-140 
that the company has 14 employee s. Consistent with the above , the director asked in the RFE that the 
petitioner submit a detailed organizational chart, including the names of all department s, teams, employees, 
their titles, and a description of their job duties. Further, the director stated that the petitioner should submit 
information regarding the scope and nature of the company' s operations and the context of the benefi ciary's 
position relative to those operation s, including supporting documentary evidence. However , in response , the 
petitioner provided a vague and incomplete organizational chart for the petitioner that did not include job 
duty descriptions for the two asserted supervisory or managerial employees, the meat department manager 
and head cashier, and the seven other supporting employees. 
On appeal, the petitioner now submits an organizational chart that includes job duty description s for the 
employees of The regulation states that the petitioner shall submit additional 
evidence as the director, in his or her discretion, may deem necessary . The purpos e of the request for 
evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been 
establi shed, as of the time the petition is filed . See 8 C .P.R. §§ 103.2(b)(8) and (12). The failure to submit 
reque sted evidence that preclud es a material line of inquiry shall be grounds for denying the petition. 8 
C.P.R.§ 103.2(b)(l4). 
Where , as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988) . Further, the brief position descriptions provided do not establish that the beneficiary's 
(b)(6) NON-PRECEDENT DECISION 
Page 7 
direc t 
subordinates, the meat department manager and the head cashier, are supervisory employees. The 
petitioner states that the meat department manager "place s orders, cuts and prepares the meat in display, 
services the customers," and the head cashier "operates cash register, lotto machine and process[es] bills, 
sees over the cashiers, prepare s deposits." Based on these limited descriptions , the petitioner has not 
established that either of these employees is a supervisor; rather, both employees seem to perform essentially 
the same duties of the meat depa1tment employees and other cashiers they are claimed to supervise. Based 
on the evidence of record, the petitioner has provided insufficient evidence to establish that the beneficiary 
acts as more than a first-line supervisor of non-managerial and non-profe ssional employees. A managerial or 
executive employee must have authority over day-to-day operations beyond the level normally vested in a 
first-line supervisor , unless the supervised employees are professionals . See Matter of Church Sci ento logy 
Int ernationa l, 19 I&N Dec . 593, 604 (Comm'r 1988). 
The petitioner also submits for the first time on appeal an organizational chart for a 
business that was not mentioned by the petitioner or documented in the record at the time of filing or in 
respon se to the RFE . While the petitioner now indicates that the six employees of this business report to the 
beneficiary , it has provided no additional evidence of its existence nor any explanation as to why this 
business and its employees were not mentioned previously . The petitioner's introduction of this additional 
business and its staff will not be considered on appeal. 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 Izummi, 22 
I&N Dec. 169, 176 (Assoc. Comm'r 1998) . 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second , the 
petitioner must prove that the beneficiary primaril y performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day function s. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Here , the petitioner indicated that the beneficiary perform s various duties consistent with an executive or 
manager, such as hiring and firing managers, creating and implementing policies and standards, determining 
necessary change s to programs or operations, and developing marketing strategies. However, based on the 
limited evidence submitted, the duties of the remainder of the petitioner's employees are limited to the 
routine functions typically performed by cashiers and meat counter clerks, and the record as a whole does not 
support a finding that the beneficiary will be performing primarily manager ial or executive duties. As noted, 
the petitioner does not claim to have lower-level employee s who relieve the beneficiary from performing 
non-qualifying duties associated with marketing and advertising, routine financial duties , monitoring the 
cleanliness of the store, food and equipment inspection, completing orders with suppliers, reviewing and 
managing inventory , or providing first-line supervision of non-profes sional personnel. Although the 
petitioner asserts that the beneficiary is only dictating policies and procedures with respect to these various 
operational tasks, the petitioner does not claim that his subordinate staff is responsible for relieving him of 
these types of non-qualifying duties. As such, the AAO concludes that it is more likely than not that the 
(b)(6) NON-PRECEDENT DECISION 
Page 8 
beneficiary will primarily engaged in performing these non-qualifying operational 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) of the Act 
(requiring that one "primarily" perform 
the enumerated managerial or executive duties); see also Boyang , 
Ltd. v. l.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'r 1988)). 
In conclusion , after analyzing the totality of the evidence presented, the petitioner has not submitted 
sufficient evidence to establish that it will employ the beneficiary in a qualifying managerial or executive 
capacity. For this reason, the appeal must be dismissed. 
B. Foreign employment in a managerial or executive capacity 
Beyond the decision of the director, the petitioner has not established that the beneficiary was employed in a 
qualifying managerial or executive capacity with the foreign employer in one of the three years preceding his 
entry into the United States on nonimmig1~ ant status. 
The pertinent regulation at 8 C.P.R. § 205.5(j)(3)(i) states that the petitioner must submit the following 
evidence to qualify the beneficiary as a multinational executive or manager : 
(i) Required evidence . A petition for a multinational executive or manager must be 
accompanied by a statement from an authorized official of the petitioning United 
States employer which demonstrates that: 
* * * 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas , in the three years preceding entry as a 
nonimmigrant, the alien was employed by the entity abroad for at least one year 
in a managerial or executive capacity 
In support of the Form I-140 petition, the petitioner did not submit any evidence relevant to his foreign 
employment prior to entering the United States. As such , the director requested that the petitioner submit "a 
very detailed description of the beneficiary's position abroad," including an estimate of the percentage of 
time the beneficiary formerly dedicated to each specific duty. Further, the director asked the petitioner to 
submit a detailed organizational chart relevant to the foreign employer corresponding to his employment 
abroad, including names of all departments , employees, their titles , and a description of their duties. In 
response, the petitioner did not provide a duty description for the beneficiary in his former managerial. or 
executive capacity abroad. The petitioner provided a foreign organizational chart noting the beneficiary as 
general manager of a foreign business called The organizational chart indicates that 
(b)(6) NON-PRECEDENT DECISION 
Page 9 
the beneficiary supervised a store manager and two cashiers. However, the organizational chart includes no 
explanation of the duties of these subordinate employees, or the business conducted by the foreign employer. 
Again, the regulation state s that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit fmther information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.P.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds fordenying the petition. 8 C.P.R. § l03.2(b)(l4). 
Therefore, due to the lack of evidence submitted on the record related to the beneficiary 's previous foreign 
employment, it cannot be determined whether the beneficiary was employed in a qualifying managerial or 
executive capacity with the foreign employer in one of the three years prior to his entry into the United State s 
on nonimmigrant status. For this additional reason, the appeal will be dismissed . 
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. DOl, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO review s 
appeals on a de novo basis). 
III. Conclusion: 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 
I&N Dec . 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.