dismissed EB-1C Case: Scrap Recycling

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
fllBUC COP\: 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER Date: 
SEP 23 2010 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U,S,C. § 1153(b)(l)(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 Form 1-290B, Notice of Appeal or Motion, 
with a fee of $585. 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, 
;t;..erry Rhew . 
{{thief, Administrative Appeals Office 
www.uscis.gov 
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 California corporation that seeks to employ the beneficiary as its president. Accordingly, 
the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)( I )(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § lI53(b)(1 )(C), as a multinational 
executive or manager. The director denied the petition based on the finding that the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusion and asserts that the petitioner has satisfied the statutory 
criteria that defines executive capacity. 
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 1-140 for classification of an alien under section 
203(b)( I )(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. 
The primary issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 10 I (a)(44)(A) of the Act, 8 U.S.C. § I I o I (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization In which the 
employee primarily--
Page 3 
(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 I 01 (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. 
In support of the Form 1-140, the petitioner submitted a letter dated April 28, 2008, which included a 
description of the beneficiary's proposed employment with the U.S. entity. As the director restated the initial 
job description in its entirety, the AAO will not repeat this infonnation in the instant decision. The petitioner 
also provided a chart illustrating its own business organization. The chart indicates that the organization is 
headed by a board of directors with the beneficiary as the company president directly subordinate to the 
board. The vice president is depicted as the beneficiary's direct subordinate overseeing the financial, 
purchasing, import, export, and customer service departments. The purchasing department is shown as 
having two purchasing agents and the scrap yard as its direct subordinates. While the scrap yard is shown as 
overseeing a warehouse, a process shop, quality control, and packaging, all four positions, as well as the scrap 
yard, are shown as vacant. It is noted that the import department is also shown as having no employees. 
The organizational chart was accompanied by a list of employees, which was comprised of nine individuals, 
one of whom was shown as having been terminated as of the date the Form 1-140 was filed. 
Page 4 
On February II, 2009, the director issued a request for evidence (RFE) instructing the petitioner to provide 
supplemental information regarding the beneficiary's proposed position. Specifically, the director instructed 
the petitioner to delineate the beneficiary's specific day-to-day job duties and to assign an approximate 
percentage of time that would be allocated to each job duty. The petitioner was cautioned against lumping 
job duties together when estimating the time constraints. The director also noted that the petitioner's 
organizational chart included a number of unfilled positions and asked the petitioner to explain who is 
currently performing the job duties that the beneficiary planned to assign to the employees who would 
eventually fill the open positions. 
In response, the petitioner provided a job description that consisted of six main components, each of which 
was accompanied by a series of job responsibilities with time allotments. 
The first component----establishing and implementing business strategies, plans, and operating procedures­
would consume 20% of the beneficiary's time to be distributed among the annual, quarterly, and monthly 
plans. The beneficiary would allocate 6% to making summary reports and creating an annual business plan 
and operating procedures; 6% to making summary reports and creating a monthly business plan and operating 
procedures; and 8% to making summary reports and devising a weekly plan and operation procedures. 
The second component-attending important meetings-would consume 22% of the beneficiary'S time, 
which would be allocated as follows: attending two annual industry meetings---one in the United States and 
another in China-for a total of 4% of the beneficiary's time; attending quarterly seminars hosted by the 
Institute of Scrap Recycling Industries, Inc. for 5% of the time; hosting an annual meeting of department 
managers to discuss the business plan for 3% of the time; attending the regularly scheduled board meeting 
and making reports to present to the board for 5% of the time; and hosting the company meetings for all 
employees for 5% of the time. 
The third component-making decisions regarding company structure and personnel management-would 
consume II % of the beneficiary's time, which would be distributed among four job responsibilities: making 
adjustments to the hiring and firing of managerial and professional employees "according to [sic] situation of 
the business" for 5% of the time and determining employee benefits and compensation packages, advising on 
the hiring advertisements, and providing guidelines for personnel management, each of which would 
comprise 2% of the beneficiary's time. 
The fourth component---overseeing the financial management-would consume 18% of the beneficiary's 
time, which would be allocated as follows: 5% to advising on the annual, quarterly, and monthly budgets; 5% 
to applying for business loans; 4% to signing company checks; and 2% to reviewing company wages on the 
15th and 30th day of each month. 
The fifth component---overseeing the company's legal issues-would consume 4% of the beneficiary's time, 
which would be distributed among three job duties: attending monthly meetings with legal consultants for 
I % of the time; handling significant legal matters such as law suits for 2% of the time; and signing legal 
documents for I % of the time. 
The sixth and final component--<:onducting general administration-would consume 28% of the beneficiary's 
time. The beneficiary would allocate 5% of his time to reviewing business documents; I % of his time to 
Page 5 
signing contracts; 8% of his time to making decisions regarding purchase offers and sales orders; I % of his 
time to managing professional training, and the remaining 10% of his time to meeting with import customers 
and suppliers to cultivate business relationships and identifYing new and potential areas of development. 
The petitioner also provided a daily schedule depicting a typical eight-hour work day. The plan allocated 
thirty minutes to each of the following tasks: meeting with department managers; inspecting the warehouse, 
listening to reports regarding incoming and outgoing goods, and inspecting inventory; reviewing internet sales 
and internet purchases; and ending the day with an inspection of the warehouse for safety protection. The 
plan allocated one hour and thirty minutes to reviewing the company web site, reviewing and replying to 
emails, meeting with customers and suppliers, visiting local recycling centers. Another hour and thirty 
minutes was allocated to reviewing import and export invoices and verifYing the pricing in the invoices with 
the purchase offers. The remaining hour was allocated to signing purchase offers and sales orders. 
Additionally, the petitioner provided an updated list of employees, which listed eight current employees as 
well as the single employee whose employment was terminated in December 2007. This document was 
accompanied by the petitioner's quarterly wage reports for the first three quarters of 2008. 
After reviewing the documentation submitted, the director determined that the petitioner failed to establish 
eligibility and therefore issued a decision dated August 12, 2009 denying the petition. The director discussed 
the petitioner's organizational chart, noting that a number of the positions listed in the chart were shown as 
being vacant at the time the F onn 1-140 was filed. The director further noted that the petitioner's quarterly 
wage report that included the Form 1-140 filing date showed that the petitioner had only five employees at the 
time of filing, not eight employees as the petitioner's organizational chart indicated. Lastly, in addressing the 
beneficiary's job description, the director observed that the hourly breakdown of a single day and the 
percentage breakdown did not convey the same information. Specifically, the director found that the sample 
daily schedule indicated that the beneficiary was spending the primary portion of his time performing non­
qualifYing operational tasks and that his employment could not be deemed to be primarily managerial or 
executive in nature, as claimed. 
As a threshold issue, the AAO notes that the job duties performed by the beneficiary at the time of filing are 
not always indicative of the job duties the beneficiary would perform under an approved petition. U.S. 
Citizenship and Immigration Services (USC IS) can not rule out the possibility that a beneficiary who was 
employed in a non-managerial or non-executive capacity at the time of filing may perform a different set of 
tasks in the proposed position once the petition is approved. That being said, the AAO points out that, in the 
present matter, the record indicates that the petitioner planned to continue to employ the beneficiary in 
precisely the same position as the one he occupied at the time of filing. As such, the director had reason to 
believe that the job duties the beneficiary performed at the time of filing would be the same or similar to the 
job duties he would perform under an approved petition. As the director determined that the job duties the 
beneficiary performed at the time of filing were not primarily within a qualifYing managerial or executive 
capacity, a finding of ineligibility was appropriate. 
On appeal, counsel submits a brief asserting that the director failed to specifY which of the beneficiary's job 
duties he deemed to be non-qualifYing. Counsel also referred to Matter of Church Scientology International, 
19 I&N Dec. 604 (Comm. 1988), distinguishing the published case from the matter at hand by pointing out 
that the petitioner in the published case, unlike the petitioner in the in the present matter, failed to provide a 
detailed job description, which ultimately led to the denial ofthe petition. 
Counsel's reasoning, however, is not persuasive as it erroneously implies that a petitioner can always meet its 
burden of proof by minimally complying with the regulatory requirement that instructs the petitioner to 
provide a detailed job description. See 8 C.F.R. § 204.S(j)(S). While a petition may be approved if the 
petitioner submits a detailed job description that clearly describes the duties to be performed by the 
beneficiary, the regulations specifically allow the director to request additional evidence "in appropriate 
cases." 8 C.F.R. § 204.S(j)(3)(ii). Here, after reviewing the evidence, the director determined that the 
position description alone was not sufficient and therefore requested additional evidence. The AAO agrees 
that it was reasonable for the director to look beyond the job description in this case. 
Counsel further asserts that the beneficiary's job description meets the definition of executive capacity and 
answers in the affirmative to the question of whether the beneficiary fits the statutory criteria listed under the 
definition. The AAO notes, however, that the statutory definition itself provides a broad description of 
managerial and executive capacity, but does not list specific tasks that are deemed as qualifYing. It is 
therefore up to the petitioner to provide a specific list of tasks to enable USCIS to conduct its own 
independent analysis of the job description to determine whether the individual tasks that will consume the 
primary portion of the beneficiary's time fit the statutory criteria. For this reason, the petitioner was asked to 
assign time constraints to the beneficiary's specific tasks and not to group tasks together, but rather to ensure 
that each task is listed individually and assigned an approximate percentage of time that the beneficiary would 
spend performing it. 
In the present matter, neither the percentage breakdown nor the accompanying sample daily schedule, which 
attempts to illustrate the beneficiary'S hourly schedule during a typical work day, satisfied the director's 
request. While the sample daily schedule did list specific tasks, several tasks were grouped together, thus 
failing to comply with the instruction in the RFE. Moreover, counsel on appeal clearly states that this sample 
daily schedule is not a representation of all of the tasks the beneficiary regularly performs. If that is the case, 
it is unclear why the petitioner chose not to provide a similar schedule for each day of the work week such 
that the director would have been able to review a comprehensive list of all of the beneficiary's tasks. Failure 
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 103.2(b)(14). 
Moreover, while counsel asks the AAO to place greater focus on the percentage breakdown rather than the 
hourly breakdown that described a sample work day, the AAO finds that the percentage breakdown is 
deficient in providing specific facts and therefore fails to provide a meaningful understanding of precisely 
what actual job duties the beneficiary has and would perform on a daily basis. Such information is crucial, 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), ajj'd, 90S F.2d 41 (2d. Cir. 1990). 
In the present matter, the job description containing the percentage breakdown provides only a vague 
characterization of the beneficiary's proposed position and fails to explain how the beneficiary carries out his 
broadly stated job responsibilities. For instance, the petitioner attributed 20% of the beneficiary'S time to 
establishing and implementing annual, quarterly, and monthly work plans and operating procedures. 
However, no specific tasks were mentioned, thereby making it impossible for the AAO to ascertain what 
specific tasks the beneficiary performs daily to ensure that the needed work plans and procedures are 
established and implemented. The petitioner attributed another 22% of the beneficiary's time to attending 
various meetings. However, several of the meetings that fit under this component are attended only annually 
Page 7 
and one of the meetings would be attended on a quarterly basis. It is therefore unclear how the beneficiary's 
attendance at these infrequent events translates into tasks he would perform on a daily basis. 
The beneficiary's job duties associated with making personnel management decisions are equally perplexing. 
For instance, the petitioner indicated that this overall component would consist of hiring and firing managerial 
and professional employees, making adjustments to employee salaries and benefits packages, advising on 
hiring advertisements, and developing guidelines for personnel management. Again, the AAO stresses that 
the petitioner was instructed to provide a compilation of tasks that the beneficiary would perform on a day-to­
day basis. In light of the low level of complexity of the petitioner's organizational hierarchy, the AAO is 
confused as to why any of these personnel-related issues would arise on a regular daily or even weekly basis. 
In fact, in reviewing the petitioner's employee list, the petitioner claims to have terminated the employment of 
only one individual as of the date the Form 1-140 was filed. While the employee list indicates that the 
petitioner's hiring patterns were more regular, the list includes only eight currently working employees and 
shows several months between the hiring dates from one employee to another. Thus, the record does not 
support the claim that the hiring and firing of employees or altering their respective benefits packages 
consumed any part of the beneficiary's daily activities. 
Additionally, while counsel discourages USCIS from placing great emphasis on the petitioner's staffing 
structure, the AAO points out that this factor can and should be considered in the context of assessing the 
petitioner's ability to relieve the beneficiary from having to primarily perform non-qualitying tasks. In 
reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed that 
USCIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Although a detailed job description is admittedly one major 
component in determining the petitioner's eligibility, the petitioner is expected to provide sufficient evidence 
to corroborate the proposed job description. Merely providing a job description that describes a set of 
primarily qualitying tasks is meaningless if the organization that seeks to hire the beneficiary does not have 
the human resources to relieve the beneficiary from having to primarily perform non-qualitying operational 
job duties. 
In the present matter, the director properly focused on the petitioner's organizational make-up, which resulted 
in questions regarding who would perform the daily operational tasks. First, the AAO notes the discrepancy 
between the petitioner's organizational chart, which lists a total of eight employees, and the petitioner's second 
quarterly wage report, which shows that the petitioner had only five employees at the time the Form 1-140 
was filed. This inconsistency is troubling for two reasons. One, the inconsistency calls into question the 
reliability and validity of the information offered by the petitioner. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Moreover, doubt cast 
on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. ld Second, aside from the petitioner's credibility, 
the diminished staffing as shown in the wage report casts further doubt on the petitioner's ability to relieve the 
beneficiary from having to primarily perform non-qualitying tasks. 
Page 8 
In summary, the AAO finds that neither the petitioner's description of the beneficiary's proposed employment 
nor the complexity of its organizational hierarchy adequately establish the petitioner's need for or its ability to 
employ someone whose time would be primarily allocated to managerial or executive tasks. Therefore, on 
the basis of the above analysis and the AAO's findings, this petition cannot be approved. 
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.