dismissed EB-1C Case: Seafood Import/Export

PUBLIC COPY 
wing data deleted to 
prevent clearly unwarrw 
I 
mvasion ofpersonal ptivrqi 
L.S. Lle;~artnient of Homeland Security 
20 hias: \~e h W., Rm. 3000 
\+ashin_,i I., DC' 10529 
U.S. Citizenship 
and Imniigration 
Services 
EAC 03 029 52410 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive oi- Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 I;.S.r. $ 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Thls is the decision of the Administrative Appeals Office in your case Ail do~xtneiit~ hnlge been returned to 
the office that originally decided your case. Any further inquiry must he nlade to thrt office. 
-+/ 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Verniont Scrvice Center. The 
petitioner appealed the matter to the Administrative Appeals Office ('4AO). The appeal was ultimately 
dismissed. The matter is now before the AAO on motion to reopen and reconsider The petitioner's motion to 
reopen will be dismissed due to the petitioner's failure to meet the requirements of 8 C.F.R. 5 103.5(a)(2). 
The motion to reconsider will be granted and the information in counsel's appellate brief \\rill be considered in 
a full discussion below. However, the underlying decision dismissing the appeal wil! be afiirmed. 
The petitioner is a New York corporation that claims to be engaged in the business of importing and exporting 
shrimp and fish. It seeks to employ the beneficiary as its president. Acclxdingly, fl~e 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. 5 1153(b)(I)(Cj, as a rnul~inaiional executive or 
manager. The director denied the petition noting that documentation speciiically pertail1iii.g to the U.S. entity, 
i.e., the petitioner's tax documentation and commercial lease, indicates that rile petitioi~er was not able to 
employ the beneficiary in a qualifying managerial or executive position at the time the Form 1-140 was filed. 
Although counsel appealed the denial disputing the director's findings, the appeilate brlel' lie claimed would 
be submitted in support of the appeal was not in the record at the tiiiie of the ii\,20's initial review. 
Accordingly, the AAO summarily dismissed the appeal, pursuant to 8 C.F.R. $ 103 3i a I( I )(I/), which states that 
any appeal which fails to specifically identify any erroneous conclusion of lam or lsc~ shall be summarily 
dismissed. 
On motion, counsel asserts that a brief had in fact been provided and resubmits the same for the record. The 
points made by counsel in the appellate brief will be fully addressed below. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualiiiec? 1111111q;rants who 
are aliens described in any of the following subparagraphs (A:! through (C): 
(C) Certain Multinational Executives and Managers. -- An ailen ir, dt.scrrbed 
in this subparagraph if the alien, in the 3 years preced~ng the tlrjic nl' the 
alien's application for classification and admission Into the Un~ted Sl,~tes 
under this subparagraph, has been employed for at least 1 year by a finn or 
corporation or other legal entity or an affiliate or subsidiary thereoi' ant ~vho 
seeks to enter the United States in order to continue to render cer\l;e:, iii ihe 
same employer or to a subsidiary or affiliate thereof in a capaclry tl~ai 1s 
managerial or executive. 
The language of the statute is specific in limiting this provision to o~ily those execul~\ ibs and managers who 
have previously worked for a fm, corporation or other legal entity, or an afiiliate ol \u'os!diary of that entity, 
and who are coming to the United States to work for the same entity. or lis nffil~ate or sut sldiary. 
A United States employer may file a petition on Form 1-140 for ciasslficatio~~ of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. NIJ lahor certifi;rtticlt? is required for this 
Page 3 
classification. The prospective employer in the United States must fiu.iiisb a j~jl~ OK:L in the form of a 
statement which indicates that the alien is to be employed in the United States in m,,n,~gerial or executive 
capacity. Such a statement must clearly describe the duties to be perforinecl by tile ~iic11. 
The primary issue in this proceeding is whether the petitioner established at the timl: of iling the Form 1-140 
that it was ready and able to employ the beneficiary in a managerial or executive capacit;. . 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an orgail1;7stin:i in which the 
employee primarily-- 
(i) manages the organization, or a depart me^:, subc'i vls 'I:, !, fix?ction, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, !?mlessional, or 
managerial employees, or manages an esseiitial function withn the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly sunervrsed, has the 
authority to hire and fire or recommend those as well I<. ot!wr personnel 
actions (such as promotion and leave authori7ation). cr ~f rro ot: <(:I- employee 
is directly supervised, functions at a senior le~ el witl~in !!ie orzanizational 
hierarchy or with respect to the function managea: and 
(iv) 
 exercises discretion over the day-to-day operations of the activl 
 or function 
for which the employee has authority. 
 A first-line supe;.\lsor is not 
considered to be acting in a managerial capaciry nlerely hy -\ 11-tue 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 w:thln an ol.g:ui17,~tro1l in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a n:ajor colnpolictit or function 
of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision--1n:lkiig; alitl 
(iv) 
 receives only general supervision or direction froin higher le~~el executives, 
the board of directors, or stockholders of the organization. 
Page 4 
The record shows that the petitioner failed to comply with 8 C.F.R. 5 2134.56:)(:5), ~~~~ilch requires that the 
petitioner furnish a job offer explaining fully the beneficiary's proposed job duties. Inxread, the petitioner 
provided a letter dated October 7, 2002 from its attorney, who primarii3 focltsed on t11~ foreign entity and 
stated only that the petitioner's purpose for transferring the beneficiary to work fbr thi: li.S. subsidiary was to 
fill the position of president, marketing and product development. The only other information with regard to 
the beneficiary's proposed position with the U.S. entity was contained in Part 6 of 111e Form 1-140, where the 
beneficiary's non-technical job description was stated as "plan, develop afid es!ahlisl1 policies for [the] 
organization." 
Accordingly, Citizenship and Immigration Services (CIS) issued two requests ibr nclci~tional evidence (WE), 
the first on December 23, 2002 and the second on January 10, 2006.' 111 tile secvnti RFE, the director 
instructed the petitioner to provide an organizational chart reflecting thc compositlor~ of tlle U.S. entity as of 
October 11, 2002 when the Form 1-140 was filed. The petitioner wab also asi,erd to provide supporting 
evidence of its staffing structure, including various tax documents that establ~sh the vv age, paid to employees 
as of the date of filing. Additionally, the director instructed the pet~tioner to ~ro~ ~de documentation, 
including a commercial lease, to show its capability to conduct an ullport and wpon business, as well as 
further evidence to establish that the beneficiary would be employed in a managei.c~l or executive capacity. 
The director expressly added that the response with regard to the beneficiary's jol- description must include 
specifics, rather than general responsibilities extracted from the regulations or from the Dcpnutment of Labor 
Occupational Outlook Handbook. 
In response, counsel submitted a letter dated April 6, 2006, listing the su~lportlng docui;icntation in the order 
of submission. With regard to the request for the U.S. entity's organi~atlonal char,. In(: pe~itioner provided a 
chart illustrating three tiers of management, including the president of the conlpany at the top level of the 
organization, followed by a general manager at the next level, and a bookkeeperiaccounrant and an import 
manager at the lowest managerial tier. Both the general manager and import rfianat-er I.+ ere shown to have a 
receptionistlsecretary and an import clerk as their respective assistants. It is notzc ti.l;it the organizational 
chart contained no names of employees to show who was occupying the various po.,r:lon!, 1 he petitioner did, 
however, provide two W-2 statements, one belonging to the beneficiary, silow~ng e,,~ 1iin.s of $50,000 during 
2002, and the other belonging to 
 , showing earnings of 9 1,950 ii~1.111g ?002. The petitioner 
did not clarify which position r occupied or specify his hiring dctte. A4 w;h, iJlr1 e is no explanation 
as to the duties performed by this individual, nor can it be deterrnirled ri~;t th~s rll(:ixv I(' was employed by 
the petitioner at the time the Form 1-140 was filed. That being said. el en il'tt~e AAi 1 w21 t: to assume that Mr. 
-was hired at or around the time the Form 1-140 was filed and cont~nued to v,o~ li for the petitioner 
throughout the remainder of 2002, the salary indicated in 1s W-2 1s nut co~nmerlsurate with that of a 
full-time employee, thereby indicating that the petitioner's entire staff at [he ii~ne (3 fill17;r was comprised of 
no more than one full-time employee, i.e., the beneficiary, and one part-time emplo) cc 
Although the petitioner was also asked to provide a detailed descript~on of 1'1: bt:leficiaryls proposed 
employment, counsel's response included only a brief statement, indicat~tlg t!,al i11e lieneficiary "negotiates 
and oversees all the contracts and agreements between [the petitior~<~l and ILS i ~c.rsc~:is clients. He is in 
charge of all hiring and firing of personnel. He also is in charge of est;<bl~:,l-l~n:r I ~ch i, 1 .IS[.] clients." No 
further explanation was provided to clarify how, if at all, the petitioner wa, abie lo relieve the beneficiary 
1 
See page one of the director's decision dated May 22, 2006 for a full exp!atiation !)f' thz ')r. .I.* 1s issuing the second 
RFE. 
from having to primarily perform non-qualifying operational tasks, partlc* ,lariy 2 I\ ( L 1 I .<: petitioner's staffing 
structure at the time the Form 1-140 was filed. 
Pursuant to a review of the submitted documents, the director issued a decision dared N! <rvr 22, 2006, denying 
the petitioner's Form 1-140 on the basis that the petitioner failed to establish its aiility to employ the 
beneficiary in a qualifying managerial or executive capacity as of the jiling date of lGi. petition. 
On appeal, counsel for the applicant contends that it is unreasonable for CIS to expect ille petitioner to hire 
additional personnel after having denied the petition that would have allou ed tne I)c.[lrt; -1:lry to remain in the 
United States and continue developing the business. Contrary to couns~.l's rcnsc,li1 
. nowever, a petitioner 
must establish eligibility at the time of filing; a petition cannot be apprd\ (:u at a 1utrr1 e c~.~ii' after the petitioner 
or beneficiary becomes eligible under a new set of facts. Matter of liati:;hok, 14 PXlN l)ec. 45, 49 (Comm. 
1971). Thus, precedent case law establishes that counsel's argument 1s entlrely witholit ~\it,l.it, as it is based on 
the illogical assumption that a beneficiary may be granted permisslo11 to rein~iill 11: the United States 
regardless of whether the petitioner has established its statutory eliglbil~ty to c nplov the beneficiary as 
president of the U.S. entity. 
Furthermore, counsel expresses his utter shock at the fact that the pet~tlo~ier IS i:k~-.ccl~i,l to hire additional 
personnel when the Form 1-140 has been denied. However, this argumenl i~utl~er iiie. . counsel's failure to 
understand that eligibility must be established at the time the Form I- i 40 IS 41e.cl ( )I 1 ti 1.1 misinterprets the 
director's underlying explanation for denying the petition for a list ol'exp :ctatinns iilc LC I loner must meet in 
order to establish eligibility. This is not the case. A thorough rekiew i~t the dlr~i~loi Lq decision, in light of 
relevant legal provisions that have been established by statute, reguiatlon, a~td ca ~c :,il . indicates that any 
hiring the beneficiary would have done after the petitioner had filed the konn 1- 141) would be irrelevant for 
the purpose of establishing the petitioner's eligibility for the benefit sought in the prcwnl inntter. The fact that 
the petitioner's hiring capabilities are limited to employment of a very limited supp01-t st,ilS. which essentially 
consists of the beneficiary, is a strong indication that the benefic~ary WOLI'~ n<>t 1 c ?.it ~tnarily carrying out 
duties that are managerial or executive. Rather, the beneficiary would 1.e rcspcl ,lo 
 lor all types of job 
duties, including daily operational tasks, that would be required to proclul::b a pi oLi ~1.1 r)1 o~ovide a service. It 
is noted, however, that an employee who "primarily" performs the ta4, ~~.crs.,l~ i 1') ;I bii~ce a product or to 
provide services is not considered to be "primarily" employed in a !nL~li'~yer-~al 01 ~:x:.r. .:tlve capacity. See 
sections 101 (a)(44)(A) and (B) of the Act (requiring that one "primar~iy" uesi'ornl tile eri J ~lerated managerial 
or executive duties); see also Matter of Church Scientology Interncrf:o~~ 11, 10 l&Pu C , 593, 604 (Comm. 
1988). 
In summary, when examining the executive or managerial capacity of the beneiic~~~~y. 
IS will look first to 
the petitioner's description of the job duties. See 8 C.F.R. 5 204.5(1)(5) En ti12 I)n., xril t\l,itter, the petitioner 
has failed to provide this crucial information, despite the director's ~II(J? exp,lic, + (1 .st, and instead, has 
provided brief statements from counsel generalizing the beneficiarj's JVI~I r?li jc10 I ch ,:k3~.c ~ollities without any 
indication as to how the beneficiary would primarily perform quii~~I)'i- : 10;) iii~ *'. 'JI\ en the petitioner's 
particular staffing structure at the time the petition was filed. That be~rg salci, ; %.n !rli\ugh a specific job 
description has not been provided, the fact that the petitioner's staffinu 1s prllndnl) 't~lllli ii to the beneficiary 
as the only full-time employee indicates that the beneficiary woulo 1iki:ly spend tile ~ajorlty of his time 
performing functional tasks that are necessary for the petitioner's daily opera1 on In 1,~iIit of these adverse 
findings, the AAO cannot conclude that the petitioner established at {he time of fjllr~g +: 11. Form 1-140 that it 
had the ability to primarily employ the beneficiary as a managerial or ~:xecutl\ e eml~lcyc't 
Additionally, the record does not support a finding of eligibility based on additton:!! Ir ounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. § 204.56)(3)(i)(B) states that the petitioner must estal~l~cl~ rllat i1,c ),I 
 r -iary was employed 
abroad in a qualifying managerial or executive position for at least one nu1 of ~lii: rl ' .$- 
 ~rs prior to his entry 
to the United States as a nonimmigrant to work for the same cmploqci- 
 11 ti \e 1,- i, 1~1 - ~.itter, the petitioner 
has stressed that the beneficiary was the owner of the foreign entity, re;\l~. I on r I1 
 i. A. 1 ; 'in indication of the 
beneficiary's employment capacity abroad. 
 However, in order to dtti.n~,i-lc f.31 ,)I 
 ,uent capacity, the 
petitioner must provide a description of the beneficiary's job duties, 3s ~t 1s th!: , (%I ,.I iilties themselves that 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. 11. S(l1v1, 724 t . S~np 1 103, 1108 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). Without this necessary information. the r-%i\Lt '~nnot conclude that 
the petitioner has successfblly established that the beneficiary was en~plovec! abis,r, 1 in qualifying capacity 
for the requisite time period. 
Second, 8 C.F.R. 5 204.56)(3)(i)(D) states that the petitioner must estahllch that rl I . 
 I-, doing business for 
at least one year prior to filing the Form 1-140. The regulation at i( C.i K k :i 
 'l'i'(2) states that doing 
business means "the regular, systematic, and continuous provlslon .)I roods '11 $1 0, 
a.ivlces by a firm, 
corporation, or other entity and does not include the mere presence of a11 a;;t,nt 01 01~: i, 
 is the Form 1-140 in 
the present matter was filed in October 2002, the petitioner must establish Inat 11 I~acl bi.e~~ c,o~ng buslness for one 
year prior to that date. However, the invoices submitted by the petitionel only es~abl~sli r1lClt i he forelgn entity has 
been doing business. There is no documentation that would establish that the L .S crit11> '(as been engaged in 
import andlor export transactions on a regular, systematic, and continuous bab~a. 
Lastly, given the petitioner's description of its business organization nit I 
 1 . b( .-I-ficiary's proposed 
relationship to this business, it appears more likely than not that thc bcneYcl,tr\, I,\ 
 8 vi r ,I. an "employee" of 
the United States operation. As required by 8 C.F.R. 5 204.5(j)(3)(C). 1112 ~et~f,c r:' ill L t establish that the 
prospective employer in the United States is the same employer or a st ?sidi?!-r '#" "late of the firm or 
corporation or other legal entity by which the alien was employed c;ber,c:ds. 1( , :) I- i R. $ 204.5Cj)(2) for 
definitions of afJiliate and subsidiary. It is noted that "employer" and "e~~~plnyzd ' -1 : n 
 .;?ecifically defined 
for purposes of the Act even though these terms are used repeatediy In ,~,e cortex[ )t -1 tlressing the current 
employment-based immigrant classification. However, section 10 1 (a)(44), 8 U.S C . C . 1 0 1 (;1)(44), defines both 
managerial and executive capacity as an assignment within an organi~atioll In wlnlc' ali 'enlployee" performs 
certain enumerated qualifying duties. 
Furthermore, the Supreme Court of the United States has detem~~ilc 1 ti ,I( v hclrc I , :ral statute fails to 
clearly define the term "employee," courts should conclude "thnl i' ,nk:r s(, 
 iy ct,-4 to describe the 
conventional master-servant relationship as understood by cornmol~-l t I i c~lc.~, t me." Nationwide 
Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (herelcat ler ' I'Inr. ic ": ' !iiil [ng Co~n~nunity for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition 1q 
 li~licr~~ c,: 
In determining whether a hired party is an employee under the getierd, coli l11,>11 law of 
agency, we consider the hiring party's right to control the n?amlcr and InLC\iIh L\, which the 
product is accomplished. Among the other factors relevarlt to t111h inc)i~ c 1 c the skill 
required; the source of the instrumentalities and tools; the locatlo:.i 04' 111 1 I le duration 
of the relationship between the parties; whether the hiring pal IM., tl I to assign 
additional projects to the hired party; the extent of the hired pai-t~', cliccrci I :i 
 : 1- when and 
how long to work; the method of payment; the hired party's role ilr i I In;. ,\ad paying 
assistants; whether the work is part of the regular business of the 111rin~ a,]?;. .\ihether the 
hiring party is in business; the provision of employee benetits; and 7i.c t,i :I-~ 
 ,lent of the 
hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Secon~i:, of 
 VLI r: 2 01 I 1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereiila{; rr 'I( 'it lc (JII, 
 As the cornmon- 
law test contains "no shorthand formula or magic phrase that can be appl! td 10 i;:~,' I ~t 'I I ;wer, . . . all of the 
incidents of the relationship must be assessed and weighed with no ow rz,c:to~ ht (r . (1,- ~si'v'e.'' Dnrden, 503 
U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 253, 25.3 i 1 96%) 
Within the context of immigrant petitions seeking to classify the be~eficiarj .IS 
 -I I>'' #2tional manager or 
executive, when a worker is also a partner, officer, member of a board of dl:-ec.tor. 
 1- : I 
 ,or shareholder, the 
worker may only be defined as an "employee" if he or she is subjec: to tl-9 <)- :. .. 
 \n's "control." See 
Clackamas, 538 U.S. at 449-450; see also New Compliance ,\4(1?1l~ll/ i ' $ S-!\l 
 I 1. Factors to be 
addressed in determining whether a worker, who is also an owner of tl?~ 01 ,?ill (~iiro I. .Y 
 employee include: 
Whether the organization can hire or fire the indiv~ctunl c\, set t!itl I 1'1:. , I 
 regulations of the 
individual's work. 
Whether and, if so, to what extent the organization supervises tl~e in.li~,/,i.i~ i.11'~ work. 
Whether the individual reports to someone higher in tile or :all1 rcl,! 
Whether and, if so, to what extent the individual is ablL I o ,:li: L .I I,. 
 I$: . lanization 
Whether the parties intended that the individual be 211 ~r:-~n!o>~-t. :,s 
 +pressed in written 
agreements or contracts. 
Whether the individual shares in the profits, losses, and lia\>il~ties 01 t! t: 1.1 iranization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitione. has not cst;lls,l, 1~~~~ that the beneficiary 
will be an "employee" employed in a managerial or executive capacitk . I$,. exp1,ilr u ,ii)\,\ie, the petitioner is 
a corporation, which the petitioner claims is ultimately owned and corllr-olled by tL?e I:, :l1~:+iiiary, who purports 
to assume a role as the petitioner's principal. There is no evidence t11'1; ,In:, otl~er ilr (11 I(; <11 has an ownership 
interest or is in a position to exercise any control over the work to be pel fi1 -med bl -' 1.11 I? Aiciary. 
In view of the above, it appears that the beneficiary will be a proprietor of ~llis bc-ir,e. 2nd will not be an 
"employee" as defined above. It has not been established that the lieneiicidi y i-7.iI 1: "controlled" by the 
petitioner or that the beneficiary's employment could be terminated. To the: c,mt!; r). 11% beneficiary is the 
petitioner for all practical purposes. He will control the organization; he carnoL I-c 'iiz, he will report to no 
one; he will set the rules governing his work; and he will share in all prol;is ,rrl{l 11). i ilerefore, based on 
the tests outlined above, the petitioner has not established that the heneficiarj :: 111 I-, "employed" as an 
"employee" and the petition may not be approved for this and the othe. adOltlor.al I-t* .(\I- 
 liscussed above. 
An application or petition that fails to comply with the technical reqtlirefi~ent, cf th.. 1; t inay be denied by 
the AAO even if the Service Center does not identify all of the grounl Is for de:l!:.! I 1 L;, L* 11tial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1 003 (t IT ( 3 i 
' 
1 riffd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d C'ir I 9Y9)(;lL t s.g 1 :L.I> the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional pound oC ~nel~~r.l~~lit\ as cited above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a pI:~intii'f call siici'a:~:~. ctn a challenge only 
if she shows that the AAO abused it discretion with respect to all (~f til~ AAL) s I ..,i, ,11 %rated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E D. Ci~l 100 1 >lffd. 345 F.3d 683 
(9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each clrns~\!crcl~ ,IS 311 independent and 
alternative basis for denial. In visa petition proceedings, the burden oi' provlllz L'~I~II~)II~~Y for the benefit 
sought remains entirely with the petitioner. Section 291 of the Ac!, 8 U.S.C. Q I :t, i ' ile petitioner has not 
sustained that burden. 
ORDER: 
 The dismissal of the appeal is affirmed.