dismissed EB-1C Case: Sales

(b)(6)
DATE : OCT 2 2 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Ci tize nship and Immigr at ion Services 
Ad mini strative App eal s Offic e (AAO) 
20 Mas sac huse tt.s Ave . N.W. , MS 2090 
Was hin gto n, DC 2052 9-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Sec tion 203 (b) ( I )(C) of the Immigration and Nationality Act, 8 U.S .C. § I 153(b)( I )(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 deci sion. The AAO does not announce new constructions of law nor establish agency 
pol icy through non-precedent deci sions. If you believe the AAO incOITectly applied current law or pol icy 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 J-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. § I 03 .5. Do not file a motion directly with the AAO. 
Thank you , 
~~ 
Chief , Administrative Appeal s Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
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 petition er is a Texas corporation that seeks to employ the beneficiary as its sales manager. Accordingly , 
the petitioner ende avors 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. § 1153(b)(l )(C), as a multinational 
executive or manag er. 
The record shows that the petitioner filed the Form I-140 on July 2, 2012 and submitted a number of 
supporting documents in an effort to establish eligibility for the above stated immigration benefit. The 
petitioner's submissions included separate statements pertaining to the beneficiary's former and proposed 
employment as well as corporate, financial, and business documents. 
After reviewing the petitioner's submissions, the director determined that the petition did not warrant 
approval. Accordingly, on December 28, 2012, the director issued a request for evidence (RFE) instructing 
the petitioner to provide supplementary job descriptions for both positions, listing the beneficiary's specific 
daily job duties with each entity and the amount of time that was and would be allocated to the duties listed . 
The director also instructed the petitioner to provide both entities' organizational charts and advised the 
petitioner that if employee supervision is not an aspect of the beneficiary's propo sed employment it should 
specify the essential function the beneficiary would manage. Finally, the director instructed the petitioner to 
state the job titles and to provide job descriptions, IRS Form W -2 Wage and Tax statements, and educational 
levels of any subordinate employees or contractors who performed services for the petitioner and to indicate 
whether the subordinate(s) is/are employed on a part- or full-time basis . 
The record shows that the petitioner's response was received in March 2013. The response included job 
descriptions, organizational charts, employee Form W-2 statements, and the foreign entity's company review 
of documents from July 2003 listing operational information, including the company's personnel and each 
individual's years of service. 
The director reviewed the petitioner's response and supporting documents and determin ed that the petitioner 
failed to establish that the beneficiary was employed abroad or that he would be employed in the United 
States in a qualifying managerial or executive capacity. In addressing the beneficiary's proposed 
employment , the director took into account the beneficiary's job description and the petitioner's 
organizational structure, concluding that the beneficiary would not be relieved from having to allocate his 
time primarily to the performance of non-qualifying operational tasks. The director addressed the 
beneficiary's former employment with the foreign entity, finding that the beneficiary's job description is 
inconsistent with the foreign entity's organizational hierarchy, which shows various managerial levels and 
depicts the beneficiary in a supervisory role overseeing one senior and one junior engineer. The director 
noted that the petitioner failed to provide the requested evidence of educational credentials for the 
beneficiary's subordinates. The director's last finding was based on the beneficiary's current H-1 B 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
nonimmigrant visa status, which the director found to be inconsistent with the claim that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity. 
On appeal, counsel submits an appellate brief in which he disputes the director's adverse findings. Counsel 
asserts that the director failed to consider the portion of the statutory provisions that allows for an individual 
who assumes the role of a function manager, which does not require the beneficiary to oversee subordinate 
employees. Counsel also contends that there is no statutory provision requiring that the beneficiary's 
subordinates must be full-time employees. Counsel further states that while the beneficiary performs some 
non-qualifying tasks, such tasks do not account for the primary portion of the beneficiary's time. With regard 
to the beneficiary's former employment abroad, counsel assetts that the beneficiary performed primarily 
managerial job duties and fUJther states that the director did not previously request the petitioner to provide 
evidence of educational credentials belonging to the beneficiary's subordinates and therefore the petitioner 
should not be penalized for not having submitted evidence that had not been requested. Lastly, counsel 
challenges the director's reliance on the beneficiary's H-IB nonimmigrant status as an indicator that the 
beneficiary's former employment abroad was not in a man{lgerial or executive capacity. 
After reviewing the relevant statutory and regulatory provisions, the AAO finds that the beneficiary's current 
H-1 B nonimmigrant status is not relevant to a determination as to whether he was employed abroad in a 
qualifying managerial or executive capacity. While it is true that a beneficiary who is admitted to the United 
States for a purpose other than to be employed by the petitioning entity may not meet the foreign employment 
requirement, particularly if that beneficiary is not employed by the petitioning entity at the time the petition is 
filed, the record in the present matter clearly indicates that from the time of the beneficiary's admission to the 
United States he has continuously maintained employment with the U.S. petitioner. See section 203(b)(l)(C) 
of the Act, 8 U.S.C. § ll53(b )(1 )(C); see also 8 C.P.R. §§ 204.5(j)(3)(i)(A) and (B). It is therefore unclear 
what relation, if any, the beneficiary's current H-lB nonimmigrant classification may have to the 
beneficiary's former employment abroad. Accordingly, the AAO hereby withdraws the director's comments 
as they pertain to the beneficiary's cutTent nonimmigrant status. 
The remainder of this discussion will focus on whether the beneficiary was employed abroad, and will be 
employed in the United States , in a qualifying managerial or executive capacity . 
Section 203(b) of the Act states in pertinent pmt: 
(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 
(b)(6)
Page 4 
NON-PRECEDENT DECISION 
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 
see ks to enter the United States in order to continue to render services to the 
sa me employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form I-140 for classification of an alien under section 
203(b)(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 indicate s 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 petformed by the alien. 
Section 101 (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 Ill which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervise s and controls the work of other supervisory , professional , or 
mana ge rial 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 supervis ed, 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. § 1101(a)(44)(B), provides: 
(b)(6)
Page 5 
NON-PRECEDENT DECISION 
The term "executive capacity" means an assignment within an organization m 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 general, when examining the executive or managerial capacity of the beneficiary, the AAO reviews the 
totality of the record , starting first with the petitioner's description of the beneficiary 's job duties. See 8 C.P.R. 
§ 204.5U)(5). A detailed job description is crucial, as the duties themselves will reveal the true nature of the 
beneficiary's foreign and proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. II 03 , II 08 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The AAO will then consider this information in light of 
other relevant factors, including (but not limited to) job descriptions of the beneficiary's subordinate 
employees, the nature of the business conducted by the entity or entities in question, the size of an entity's 
subordinate staff, and any other facts contributing to a comprehensive understanding of the beneficiary's 
actual roles in the two resp ective entities. 
Applying the above analysis to the beneficiary's proposed position with the U.S. entity, the beneficiary's job 
description indicate s that a significant p01tion of the beneficiary's time would be allocated to non-qualifying 
tasks ass ociated with customer service, sales, and human resources. Specifically, the petitioner indicated that 
the beneficiary's proposed position with the U.S. entity would entail developing and executing marketing 
strategies, visiting customer management, negotiating with factory suppliers, making sales calls, traveling to 
meet with customers to ensure customer satisfaction, preparing sales reports , reporting to senior managers 
regarding company progress, resolving problems with manufacturers, training personnel , and attending trade 
shows to represent the company. Although the petitioner assigned time allocations to broadly stated job 
responsibilities, rather than to specific job duties, the record contains sufficient information to determine that 
at least 55 % (and poss ibly more) of the beneficiary's time would be allocated to these non-qualifying tasks. 
An employee who "primarily" performs the tasks necessary to produce a product or to provide services or 
other non-qualify tasks is not considered to be "primarily" employed in a managerial or executive capacity. 
See sections JOI(a)(44)(A) and (B) of the Act (requiring that one "primarily " perform the enumerated 
managerial or executive duties) ; see also Matter of Church Scientolog y Int'l ., 19 I&N Dec. 593 , 604 (Comm'r 
1988). 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
When the above information is futther considered within the scope of the petitioner's organizational 
hierarchy , which shows that the only individuals who were available to ass ist the benefi c iary with sales and 
marketing tasks at the time the petition was filed were two part-time employees, the record as a whole 
support s a conclusion that the beneficiary will allocate more than half of his time to non-qualifying tasks. In 
the present matter, the beneficiary 's job description and the lack of an adequate supp01t staff strongly indicate 
that the petitioner was unable to employ the beneficiary in a qualifying managerial or executive capacity at 
the time of filing. A company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive . 
See § 10 I (a)( 44 )(C) of the Act, 8 U.S. C. § 1101 (a)( 44)(C). However, it is appropriate for US CIS to consider 
the size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, 
e.g. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, I 53 F. Supp. 2d 7, I 5 
(D.D.C. 2001). 
The fact that a petitioner IS a small business will not preclude the beneficiary from qualifying for 
classification under section 203(b)(l)(C) of the Act. However, the reasonable needs of the petitioner will not 
supersede the requirement that the beneficiary be "primarily" employed in a managerial or executive capacity 
as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. § ll01(a)(44) . The 
reasonable needs of the petitioner may justify a beneficiary who allocates 5 I percent of his duties to 
managerial or executive tasks as opposed to 90 percent, but those needs will not excuse a beneficiary who 
spends the majority of his or her time on non-qualifying duties. As discussed, based on the petitioner's 
description of the beneficiary's position , he will allocate more than half of his time to non-qualifying duties , 
and for this reason, the petition cannot be approved. 
Next, the AAO will examine to the beneficiary's former employment with the foreign entity. Looking first to 
the beneficiary 's job description , the record shows that time constraints were assigned to three broad 
categories - 45% was assigned to marketing, administrative, and financial tasks; 35% was assigned to sales 
activities; and the remaining 20% was ass igned to an untitled category that was comprised of ten job duties. 
Even though each area of responsibility included both qualifying and non-qualifying duties, the job 
description contains no indication as to the amount of time the beneficiary allocated to each task in order to 
allow the AAO to determine how much of the beneficiary's time was specifically allocated to managerial or 
executive duties. While no beneficiary is required to allocate 100 % of his or her time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary performed 
during his former employment with the foreign entity were only incidental to the position in question. 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 I 0 I (a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Chur ch Scientolog y International , 19 I&N Dec. 593, 604 (Comm. 1988). Given that the 
petitioner chose not to assign time constraints to the beneficiary's assigned duties as expressly instructed in 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
the RFE, it cannot be determined that the beneficiary more likely than not devoted his time primarily to the 
performance of tasks within a qualifying capacity. 
Additionally, while the foreign entity's organizational chart depicts a considerably more complex staffing 
structure compared to that of the petitioning company, an organizational chart by itself does not serve as 
supp01ting evidence of the foreign entity's staffing levels. Rather, the chart is a representation of the 
petitioner's claim depicting the foreign entity's organizational hierarchy and like any other claim, an 
organizational chart must be corroborated with evidence, such as payroll documents, which shows that the 
foreign entity actually employed the suppo1t staff that the chart depicted. The record in the present matter 
does not contain any such supp01ting evidence, thus leaving the AAO to evaluate the beneficiary's qualifying 
employment abroad within the scope of a deficient job description, which lacked the necessary time 
constraints assigned to specific tasks, and an uncorroborated organizational chart. Going on record without 
supporting 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)) . Given these significant evidentiary deficiencies, the 
petitioner has not established that the foreign entity employed the beneficiary in a qualifying managerial or 
executive capacity. For this additional reason, the appeal will be dismissed. 
The appeal will be dismissed for the above stated reasons. 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; 
MatterofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.