dismissed EB-1C Case: Sauna Sales

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
identifying dsta dekted to 
prevent c~z;?;;' ~:?wai~znted 
invasion of persnnai privacy 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
Office: NEBRASKA SERVICE CENTER Date: 
SRC 06 264 52288 
 MAR 3 1 2009 
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. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Un F. Crissom 
Acting Chief, Administrative Appeals Office 
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 Georgia corporation engaged in the business of selling saunas manufactured by 
the foreign entity that employed the beneficiary abroad. The petitioner seeks to employ the 
beneficiary as its executive director. 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. $ 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in the United 
States in a managerial or executive capacity. 
On appeal, counsel submits a brief disputing both of the director's conclusions. Additionally, the 
petitioner supplements the record with a one-day sample work schedule for the beneficiary's 
positions with the foreign and U.S. entities. A complete analysis of these submissions and the 
director's findings will be provided 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 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)(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. 
Page 3 
The two primary issues in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed 
abroad and whether he would be employed in the United States in a qualifying managerial or 
executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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) of the Act, 8 U.S.C. 5 1 101(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. 
Page 4 
In support of the Form 1-140, the petitioner submitted a letter dated August 3, 2006, which included 
a variety of statements discussing the beneficiary's foreign and proposed positions. As the director 
has restated this information in the denial, the AAO need not repeat it at this time. The petitioner 
also provided organizational charts illustrating the staffing and organizational hierarchies of the 
foreign and U.S. entities. The foreign entity's organizational chart depicts the beneficiary at the top 
of the hierarchy with the position title of president. The beneficiary's immediate subordinate was a 
manager whose two subordinates included a section chief and a director. The U.S. entity's 
organizational chart depicted a similar structure with the beneficiary's position as the head of the 
organization, again in the position of president, and a manager as his immediate subordinate. The 
chart shows that the manager's three subordinates include a section chief, a director, and a secretary. 
Both organizational charts identified the employees who filled each of the listed positions and 
provided a brief list of the job responsibilities associated with each of the positions. 
After reviewing the petitioner's submissions, the director determined that the petition could not be 
approved without further evidence. Accordingly, the director issued the first of two requests for 
additional evidence (WE) dated October 23, 2006. This RFE instructed the petitioner to provide 
further documentation establishing its own on-going business activity during a specific one-year 
period as well as the current on-going business activity of the petitioner's claimed foreign affiliate. 
Although it appears that the petitioner responded to the first RFE, the response is not in the record of 
proceedings. Upon initial review of the record, the AAO learned of the missing RFE response and 
issued its own notice dated November 28, 2008, instructing the petitioner to provide either the actual 
response that had been previously submitted or to provide a new response to the director's previously 
issued RFE. The AAO sent copies of its own RFE as well as the RFE issued by the director to both 
the petitioner and its counsel and allowed the parties 45 days in which to respond with the requested 
documentation. However, the 45-day period has since lapsed and no response has been received 
from either party. ' 
On July 19, 2007, the director issued a second WE, instructing the petitioner to address various 
issues regarding its eligibility. The director incorporated the issues discussed in the initial RFE and 
further instructed the petitioner to provide evidence establishing that the beneficiary was employed 
abroad and would be employed in the United States in a qualifying managerial or executive capacity. 
More specifically, the petitioner was instructed to provide detailed descriptions of the beneficiary's 
job duties during his employment abroad and during his proposed employment with the U.S. entity. 
The petitioner was expressly asked to list specific job duties and to assign the proportion of time that 
was devoted and would be devoted to each of the listed duties. The petitioner was also asked to 
discuss the job duties of the beneficiary's subordinates and to provide evidence, such as Form 1099s 
or work contracts, as evidence of the contract employees the petitioner previously referenced. 
' It is noted that the copy of the AAO's notice that was sent directly to the petitioner has been returned to the AAO with a 
post office notice indicating that the addressee, i.e., the petitioner, is not at the address indicated and that a forwarding 
address has not been provided. It is noted that the AAO has not received any information from the petitioner regarding 
an updated mailing address. This being said, a copy of the AAO's notice, which contained a copy of the previously 
issued RFE from the director, was also sent to the petitioner's counsel. Therefore, the petitioner is deemed to have been 
properly served with the AAO's and the director's RFEs. 
Page 5 
In response, the petitioner provided sufficient documentation of the foreign entity's continued 
business activity as well the U.S. entity's business activity during the relevant one-year time period. 
See 8 C.F.R. 5 204.5(j)(3)(i)(D). The petitioner also provided documentation to address the 
deficiencies regarding the beneficiary's employment capacity. Specifically, the petitioner provided a 
job description for each of the beneficiary's positions, the foreign and U.S. entities' organizational 
charts, and a weekly work schedule for each of the U.S. entity's employees. It is noted that the 
beneficiary's job descriptions as well as the weekly schedules of the petitioner's employees have 
been incorporated into the director's decision. As such, the AAO need not restate this information in 
the current decision. 
On December 27, 2007, the director issued a decision denying the petitioner's Form 1-140. The 
director included a comprehensive analysis of the beneficiary's foreign and proposed positions, 
concluding that the information and documentation submitted was insufficient to establish eligibility. 
The director found that the job descriptions for the beneficiary's foreign and proposed employment 
lacked sufficient detail such that the director was unable to determine how the beneficiary had been 
and would be relieved from performing the duties underlying the various hctions with which the 
beneficiary had been and would be in charge of managing. In general, the director noted that the 
petitioner discussed the beneficiary's broad job responsibilities without specifying any underlying 
job duties as they relate to those responsibilities. 
On appeal, counsel asserts that the beneficiary was employed abroad and would be employed in the 
United States in an executive capacity. With regard to both positions, counsel focuses on the 
beneficiary's discretionary authority in implementing certain policies and goals to ensure 
maximization of each company's profits with relatively low overhead costs. However, the level of 
discretionary authority is only one factor in determining whether the beneficiary's employment fits 
the definition of executive (or managerial) capacity. It is possible for a beneficiary to work for a 
small company where he or she is at the highest level within that company's hierarchy, but is 
nevertheless performing that company's daily operational tasks during the primary portion of his or 
her time at work. As such, U.S. Citizenship and Immigration Services (USCIS) places great weight 
on the description of the beneficiary's job duties. In fact, 8 C.F.R. 5 204.5(j)(5) expressly requires 
that the beneficiary's prospective employment be described in detail the time the petition is filed. 
Published case law supports the significance of a detailed statement of the beneficiary's job duties by 
establishing that the actual duties themselves reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Therefore, only by submitting sufficient information about the beneficiary's daily job duties can the 
petitioner establish how the beneficiary has spent or would spend the primary portion of his time. 
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). That being said, the petitioner attempts to provide further insight into the 
beneficiary's past and proposed job duties by providing sample schedules of a single day during the 
beneficiary's foreign and U.S. employment. The following is a sample one-day schedule of the 
beneficiary's employment abroad: 
Page 6 
9:OO-10:30 Conference meeting with staff. Discuss whether any new 
opportunities in the market that [sic] have arisen. 
10:OO-11:30 
 Conference with sub-contractor to go over the progress of the project 
that they are involved with. Ensure that the work is on schedule and to 
resolve any conflicts the sub-contractor may have with project designs. 
Approve or disapprove any variances that may come up. 
11 :00-11:30 
 Review voice mail and emails and respond accordingly. 
1:OO-2:00 
 Meet with -to review and approve 
architectural diagrams and drafts. 
2:OO-2:30 
 Contact vendor[s] in China to determine the progress of the materials 
ordered. 
2:30-4:00 
 Meet with [a] representative director to negotiate prices and timeline in 
order to enter into a contract for the construction and installation of a 
sauna room. 
4:OO-5:00 
 Contact representative directors of ongoing projects to ensure that 
construction is going smoothly. 
5:30-6:00 
 Review monthly financial reports to determine what costs need to be 
trimmed and projects are needed to be promoted for the upcoming 
quarter to maximize profitability. 
The petitioner provided the following itinerary of one day in the beneficiary's employment with the 
U.S. entity: 
8:30-9:00 
 Conference call with [the] head officer in Korea. 
9:OO-10:OO 
 Conference with employees regarding the week ahead and upcoming 
deadlines. 
10:OO- 10:30 
 Respond to e-mails and return voicemails. 
1 :00-2:00 
 Meet with contractor to negotiate the quantity of saunas to be installed 
and the materials to be used prior to signing of the contract. 
2:15-3:00 
 Prepare for [a] speech to be given on the advantages of Asian style 
versus Western style saunas. 
,- 
Page 7 
3:OO-4:00 
 Meet with potential new customer interested in the construction of a 
new sauna near 
4:OO-4:30 
 Meet with architect to discuss changes to the design. 
ongoing projects. 
While the information provided in the above itineraries has been considered, it is not sufficient to 
overcome the director's findings. First, the AAO notes that even if the itineraries consisted 
exclusively of qualifying tasks, each itinerary represents only a single day, or 20%, of a five-day 
work week. The AAO cannot make assumptions as to the nature of the job duties the beneficiary 
performed and would perform based on its knowledge of how the beneficiary spent and would spend 
20% of his time. That being said, the beneficiary's itineraries do not cite only qualifying job duties. 
Rather, significant portions of the beneficiary's time have been and would be devoted to operational 
tasks. For instance, the sample one-day itinerary of the beneficiary's former employment showed 
that one hour was devoted to a staff conference and another hour was devoted to meeting with the 
company's section chief. It is noted, however, that, with the exception of the beneficiary's immediate 
subordinate, the petitioner has not established that the foreign entity's staff was comprised of 
managerial, professional, or supervisory employees. Therefore, the two hours spent overseeing the 
foreign entity's staff cannot be deemed as qualifying tasks. The petitioner also stated that one half 
hour was devoted to checking voicemails and emails, another half hour was devoted to contacting a 
vendor in China, and one and a half hours were spent negotiating prices and timelines with a 
representative director, for a total of two and a half hours. However, the petitioner has not 
established that these job duties can be deemed qualifying. Therefore, keeping in mind that the 
beneficiary's day included a one and a half hour lunch break, more than 50% of his eight-hour work 
day was spent on duties that cannot be deemed as qualifying. 
While the AAO acknowledges that a beneficiary is likely to devote at least a portion of his time to 
some operational tasks, it is the petitioner's burden to establish that the primary portion of the 
beneficiary's time at work had been spent on tasks within a qualifying capacity. The above sample 
of a single day during the beneficiary's former employment does not meet this burden. 
With regard to the beneficiary's proposed employment, the AAO similarly finds that a single day's 
tasks are not indicative of the tasks that would be performed during the four remaining days of the 
beneficiary's work week, particularly when a number of the tasks that are listed are not tasks that the 
beneficiary is likely to perform on a regular daily basis. For instance, the petitioner allots one hour 
to meeting with an attorney to ensure compliance with federal and state laws and three quarters of an 
hour to preparing a speech on the benefits of the petitioner's products. Not only has the petitioner 
failed to establish that either of these tasks is of a qualifying nature, neither is likely to be a recurring 
task such that it can be deemed as part of the beneficiary's daily routine. Additionally, the 
beneficiary's time spent checking voicemails and emails, meeting in a conference with employees, 
meeting with a subcontractor for contract negotiations, and the meeting with a potential customer, all 
of which cumulatively consume three and one half hours of the beneficiary's time, cannot be deemed 
as qualifying tasks. Thus, if each day of the beneficiary's proposed employment would be spent 
performing tasks similar to those identified in the sample itinerary, then the AAO could only 
conclude that the primary portion of the beneficiary's time would be spent performing non- 
qualifying tasks. That being said, the AAO cannot speculate or assume which tasks the beneficiary 
would perform during the remainder of a five-day work week. However, as previously stated, the 
burden of establishing that the primary portion of the beneficiary's time would be spent performing 
tasks of a qualifying nature remains with the petitioner. The fact that the petitioner has failed to 
provide a specific list of job duties the beneficiary would perform during the course of a forty-hour 
work week precludes the AAO from being able to conclude that the beneficiary would be employed 
in a primarily managerial or executive capacity. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were previously addressed in the AAO's earlier RFE, which was issued on November 28,2008. 
First, the AAO reviewed the director's initial RFE, which was issued on October 23, 2006, and 
incorporated the director's request for all Form 1099s issued to the petitioner's claimed 
subcontractors in 2006 and 2007. Such documentation is necessary as evidence to support the 
petitioner's claims regarding its hiring of subcontractors to perform certain work. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As a response to the AAO's 
notice has not been received, the petitioner has failed to support its claimed use of subcontractors. 
Second, the AAO discussed a discrepancy with regard to the ownership of the petitioner's stock. 
Specifically, the AAO noted that the petitioner's unaudited 2006 balance sheet, which shows that the 
petitioner issued $1,000 in common stock, is inconsistent with the petitioner's claim and other 
documentation on record, which indicate that the foreign entity purchased 100,000 shares of the 
petitioner's stock for $10,000. The AAO explained that this inconsistency must be reconciled using 
independent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). However, due to the petitioner's failure to respond, this inconsistency remains 
unresolved. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
Lastly, due to the petitioner's failure to resolve questions regarding its ownership, the beneficiary, by 
virtue of his claimed ownership of the foreign entity, may indirectly be the owner of the U.S. 
petitioner. Thus, in light of the beneficiary's proposed relationship to this business, it appears more 
likely than not that the beneficiary will not be an "employee" of the United States operation. As 
explained in 8 C.F.R. 5 204.5(')(5), the petitioner must establish that the beneficiary will be 
"employed" in an executive or managerial capacity. It is noted that "employer," "employee," and 
"employed" are not specifically defined for purposes of the Act even though these terms are used 
repeatedly in the context of addressing the multinational executive and managerial immigrant 
classification. Section 203(b)(l)(C), 8 U.S.C. 5 1153(b)(l)(C), requires beneficiaries to have been 
"employed" abroad and to render services to the same "employer" in the United States. Further, section 
10 1 (a)(44), 8 U.S.C. 5 1 10 1 (a)(44), defines both managerial and executive capacity as an assignment 
within an organization in which an "employee" performs certain enumerated qualifying duties. Finally, 
the specific definition of "managerial capacity" in section 10 1 (a)(44)(A), 8 U.S.C. 5 1 10 1 (a)(44)(A), 
refers repeatedly to the supervision and control of other "employees." Neither the legacy Immigration 
Page 9 
and Naturalization Service nor CIS has defined the terms "employee," "employer," or "employed" by 
regulation for purposes of the multinational executive and managerial immigrant classification. See, 
e.g., 8 C.F.R. 5 204.5 and 8 C.F.R. 5 214.2(1). Therefore, for purposes of this immigrant 
classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 3 18, 322-323 (1992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) ofAgency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at 5 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Page 10 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
The petitioner has not provided any evidence to address and overcome the AAO's adverse findings 
described above. 
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), afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
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. 8 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.