dismissed EB-1C Case: Sales And Distribution

(b)(6)
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DATE: 
MAR 2 7 2013 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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)(1 )(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 in 
accordance with the instructiqns on Form 1-2908, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filin'g such a request can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. 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. 
1-hank you, 
'" ·· ; >~ 
. ~'-- ... ) 
Ron Rosenberg, , 
Acting Chief, Administrative Appeals 
Office 
www.uscis.gov 
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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 Florida corporation that seeks to employ the beneficiary in the United States as its 
president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section ~03(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(1)(C), as a multinational executive or manager. -
In support of the Form 1-140 the petitioner submitted a statement dated March 4, 2011, which contained 
relevant information pertaining to the petitioner's eligibility, including a job description of the beneficiary's 
proposed employment with the petitioning entity. The petitioner indicated that the beneficiary would focus 
her time on the petitioner's budget and finances, improving company performance by setting policies to meet 
objectives and reduce costs, and directing activities dealing with pricing, sales, and distribution of 
merchandise. The petitioner indicated that at the · time of filing the beneficiary was at the top of an 
organizational hierarchy that included a sales manager, a logistics manager, an assistant sales manager, a sales 
person, a warehouse manager, and a warehouse assistant. 
The director reviewed the petitioner's submissions and determined that an approval was not warranted. The 
director therefore issued a request for evidence (RFE) dated August 26, 2011 informing the petitioner of 
various evidentiary deficiencies. Among the issues the director addressed was that of the beneficiary's 
proposed employment wit~ the U.S. entity. Specifically, the director instructed the petitioner to provide a 
detailed organizational chart illustrating its company structure. . The petitioner asked that the chart be 
complete with employee names, job titles, and position descriptions . The director also questioned whether a 
support staff of five employees would be sufficient to support the beneficiary in a primarily managerial or 
executive capacity and relieve her from having to allocate her time primarily to the performance of non­
qualifying tasks. The director stressed that the burden is on the petitioner to provide documentation 
establishing its reasonable needs with respect to staff and organizational structure. 
In response counsel restated the beneficiary's original job description as contained in the initial letter of 
support and also included the job descriptions of the remaining five employees. The petitioner also provided 
a Florida State quarterly wage document accounting for the time period during which the petitioner filed the 
Form 1-140. Of the seven employees named in the wage report and the petitioner's organizational chart, one 
employee-the individual named as the warehouse assistant-was shown as having received no wages during 
the time period in question. Additionally, the wages paid to the petitioner's warehouse manager were not 
indicative of wages paid to a full-time employee. Alternatively, it is possible that the 
warehouse manager, was not employed during the entire three-month quarter, thus leading to the possibility 
that he was not working for the petitioner in April 2011 when the petition was filed. Based on information 
contained with the petitioner's quarterly tax return for the following quarter, it appears that the petitioner's 
staffing size decreased ·from six to five employees. 
After considering the evidence submitted into the record, the director determined that the petitioner failed to 
establish that the beneficiary would be employed with the U.S. entity in a qualifying managerial or executive 
capacity. The director therefore issued a decision dated December 20, 2011 denying the petition. 
On appeal, counsel provides a brief in which she challenges the director's decision and asserts that the 
beneficiary would be employed in an executive capacity. Counsel further contends that the petitioner's six-
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person staff is sufficient to support the beneficiary .in an executive capacity position and offers additional 
information regarding the beneficiary's proposed employment to support her assertions . 
The AAO has reviewed the record in its entirety and finds that counsel's assertions are not persuasive in 
overcoming the director's finding of ineligibility. The AAO will fully address the petitioner's eligibility and 
counsel's statements in the discussion below. 
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 provisio~ 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. 
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 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 
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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 qiscretion 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: 
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. 
Turning to the primary issue at hand-the beneficiary's employment capacity in her proposed position with 
the U.S. entity-the AAO will first look to the petitioner's description of the beneficiary's proposed job 
duties. See 8 C.F.R. § 204.50)(5). While other factors are also considered, published case law supports the 
pivotal role of a detailed job· description, as the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). 
In the present matter, the AAO .finds that the job description that was originally provided by the petitioner 
(and which was subsequently resubmitted by counsel in response to the RFE) was overly vague and offered a 
general overview of the beneficiary's position and level of authority rather than a detailed list of the 
beneficiary's actual daily tasks. For instance, the petitioner indicated that the beneficiary would allocate 24 
hours per week to meeting the following objectives: directing and coordinating finance and budget activities, 
maximizing on investments, promoting efficiency, evaluating company and staff performances, ·determining 
ways to improve programs .. and cut costs, and. directing and implementing organizational policies and 
objectives with the goal of maximizing returns on investments and increasing productivity. 
While all of the above statements serve as indicators of the beneficiary's top J?lacement within the petitioner's 
organizational hierarchy as well as her high level of discretionary authority, these factors alone are not 
sufficient to convey relevant inforrn.ation about the specific means, i.e., the actual daily tasks the heneficiary 
would perform in order to attain the broadly stated business objectives listed above. The AAO cannot assume 
that the beneficiary primarily performs tasks of a qualifying nature simply because she serves as head of the 
petitioning organization. If the AAO were to make such assumptions in every scenario where the heneficiary 
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occupies the senior-most position within an organization, there would be no need to review the job duties at 
all. However, reciting · the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations expressly require a detailed description of the beneficiary's daily job duties. See 
8 C.F.R. § 204.50)(5). Thus, 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 he a mallcr 
of reiterating the regulations. /d., 1103. 
While a portion of the beneficiary's job description included few detailed statements, which indicate that the 
beneficiary would prepare budgets and negotiate contracts and agreements with suppliers and distributors, 
these job duties more accurately fit the heading of operational or administrative tasks and cannot be deemed 
to be tasks of a qualifying nature. Additionally, counsel states on appeal that the beneficiary would be 
engaged in travel for the purpose of meeting potential suppliers and new clients. However, these statements 
also indicate that there is a non-qualifying sales component that is inherent to the proposed position. That 
being said, the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks. However, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to the proposed position. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to he "primarily" 
employed in a managerial or executive capacity. See sections)01(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, where the beneficiary's job description is primarily comprised .of statements that fail· to 
reveal specific tasks the beneficiary would perform on a daily basis, the AAO cannot affirmatively conclude 
that the beneficiary would allocate her time primarily to the performance of tasks within a qualifying 
managerial or executive capacity. While the AAO often looks to other relevant factors, including the 
petitioner's organizational hierarchy and staffing, in order to gauge a company's ability to relieve the 
beneficiary from having to primarily perform non-qualifying tasks, these factors must be considered within 
the context of a well-defined job description. As the latter key element is missing from the instant record, the 
AAO cannot conclude that the petitioner would employ· the beneficiary in a qualifying managerial or 
executive capacity and on the basis of this conclusion, the instant petition must be denied. 
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.