dismissed EB-1C Case: Semiconductor Manufacturing

(b)(6)
DATE: 
DEC 2 4 2013 
JNRE: Petitioner: 
Beneficiary : 
OFFICE : TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigra tion Services 
Admini strative Appeals Office (AAO) 
20 Massachusett s Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Fll. . .E: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Man ager Pursuant to 
Section 203(b)(l)(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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO inconectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B ) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
j/~ fRonRofn:~~ 
Chief, Admini strative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the preference visa petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed . 
The petitioner is a Texas 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)(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, concluding that the petitioner failed to establish that the beneficiary had been 
employed abroad or would be employed in the United States in a qualifying managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the petitioner established by the preponderance of the 
evidence that the beneficiary has been and would be employed in a qualifying managerial or executive 
capacity. Counsel contends that the director ignored significant evidence which shows that the beneficiary 
manages and supervises employees and subcontractors of companies who work with the petitioner as part of 
the same project team. Counsel submits a brief and additional evidence in support of the appeal. 
I. The Law 
Section 203(b) of the Act states in pertinent part : 
(l) Priority Workers. -- Visas shall first be made available .. . to qualified immigrant s 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 I-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicate s that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
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Section 10l(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 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C . § 1101(a)(44)(B), provides : 
The term "executive capacity" means an assignment within an organization tn which the 
employee primarily--
(i) direct s 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. 
II. Procedural History 
The record shows that the petitioner filed the Form I-140 on September 27, 2012 and submitted a number of 
supporting documents in an effort to establish eligibility for the above stated immigration benefit. The 
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petitioner stated on the Form I-140 that it is engaged in the business of providing expertise and management 
services with regard to the design and installation of wall panels that are used in "clean rooms" within the 
semiconductor manufacturing process. The petitioner provided business contracts as well as tax and 
corporate documents in support of the petition. 
The petitioner also provided a supporting statement dated September 21, 2012, which contained a description 
of the beneficiary's proposed employment. The petitioner discussed the nature of the business it conducts in 
the United States and abroad through its parent entity. The petitioner also provided percentage breakdowns 
which addressed the beneficiary's duties and responsibilities in his respective positions with the foreign and 
U.S. entities. The petitioner indicated that the beneficiary would allocate the majority - approximately 75% -
of his time overseeing the work of engineers and managers who partake in activities that are associated with 
the engineering, construction, and/or installation of specially engineered wall panels used in the construction 
of clean rooms. Looking to the job description pertaining to the beneficiary's employment abroad, it appears 
that a considerable portion of the beneficiary's time was similarly allocated, although it is unclear precisely 
how much time given that the petitioner assigned 75% of the beneficiary's time to multiple functions, 
including presiding over company meetings, reviewing and signing contracts and other legal documents, and 
overseeing the managers and engineers who worked for the foreign entity as well as those who were hired by 
other companies which, like the foreign entity, were involved in various aspects of the engineering, 
construction, and/or installation of wall panels in clean rooms. 
On January 9, 2013, the director issued a request for evidence (RFE), indicating that the record did not 
contain sufficient evidence of eligibility to wanant approval of the petition. The director 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. The director also asked the petitioner to 
provide organizational charts illustrating each entity 's hierarchical structure and the beneficiary's direct 
subordinates. Lastly, the director instructed the petitioner to provide various financial documents to establish 
its ability to pay the beneficiary's proffered wage. 
The petitioner 's response included a statement from counsel dated April 1, 2013. Counsel pointed out the 
applicable standard of proof, restated the relevant statutory and regulatory provisions, and stated that the 
petitioner's failure to respond to an RFE should not be the sole basis for denying a petition. The petitioner 
supplemented the record with additional documents, including evidence of its ability to pay the beneficiary's 
proffered wage, quarterly wage reports, and organizational charts for the beneficiary's foreign and U.S . 
employers. The foreign entity's chart depicts the beneficiary at the top of the organizational hierarchy in the 
position of CEO with an outside director , an auditing director, and the managers and directors of the sales 
team, an engineering team, an accounting team, and two technical teams as the beneficiary 's direct 
subordinates. The chart shows an executive director, a manager, and a deputy senior manager as the 
employees who headed the sales, engineering, and accounting teams, respectively. Additionally , the 
petitioner provided job descriptions of the seven employees who were depicted as the beneficiary's direct 
subordinates. The job descriptions indicated that the foreign entity had a number of employee s who were 
tasked with sales-related duties, while others were tasked with overseeing subcontractors hired by other 
companies who took part in the process of outfitting clean rooms with highly specialized wall panels. 
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The petitioner ' s organizational chart provide s an illustration of a less complex organizational hierarchy 
consisting of five employees- the beneficiary as the company's CEO, followed by an accounting team and a 
director as the beneficiary's two direct subordinates, and two technical team s subordin ate to the director. 
Each technical team is shown as consisting of one in-house employee overseeing subcontracted workers of 
other companies. The chart further shows that the accounting team is comprised of a senior manager. 
The director reviewed the petitioner's submissions and determined that the record lacked sufficient evidence 
to establish that the beneficiary was employed abroad or that he would be employed by the U.S . petitioner in 
a qualifying managerial or executive capacity . With regard to the beneficiary's employment abroad, the 
director dete rmined that the beneficiary was unlikely to have "purely provided managerial or executive 
duties" and further stated that the beneficiary likely spent time carrying out duties of an administrative nature. 
The latter determination was apparently based on the fact that none of the foreign entity's employees were 
shown to perform administrative tasks as part of their respective positions. Lastly , the director found that the 
beneficiary's job description was vague, while also finding that the job description listed the "routine and 
administrative tasks of a first line supervisor" rather than those of an individual who was employed in a 
qualifying managerial or executive capacity. 
With regard to the beneficiary 's proposed employment with the U.S . entity , the director determined that the 
petitioner offered a job description that indicates that the beneficiary would primarily perform non-managerial 
job duties. The director further indicated that the petitioner has a limited organizational hierarchy that would 
not support the beneficiary's performance of duties that are primarily managerial or executive in nature. 
In light of the above adverse findings, the director issued a decision dated June 12, 2013 denying the petition. 
On appeal, counsel dispute s the director's decision, indicating that the director failed to apply the 
preponderance of the evidence standard of proof when examining the petitioner's supporting evidence and 
thus improperly determined that the petitioner is not eligible for the immigration benefit sought herein . 
Counsel asserts that the director may not deny the petition based on a company's limited personnel and cites 
one district court case and one unpublished AAO decision in support of the assertion. Counsel restates the 
previously provided job descriptions, and challenges the director's determination that the beneficiary engaged 
in performing administrative tasks with the foreign entity given the considerable number of employees listed 
in the foreign entity's organizational chart. Counsel contends that the director failed to properly examine the 
evidence or give due consideration to the information provided and concludes that the director 's decision is 
erroneous . 
III. Analysis 
Upon review, counsel's assertions are not sufficient to establish that the beneficiary was employed abroad and 
that he would be employed in the United States in a qualifying managerial or executive capacity . 
In general, when examining the executive or managerial capacity of a given position, the AAO reviews the 
totality of the record, starting first with the petitioner's description of the beneficiary's job duties . See 8 C.F.R. 
§ 204.5(j)(5). As the director stressed in the RFE and later in his denial of the petition , a detailed job 
description is crucial, as the duties themselves will reveal the true nature of the beneficiary's foreign and 
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proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp . 1103, 1108 (E.D.N.Y. 1989), affd, 905 
F.2d41 (2d. Cir. 1990). 
Additionally, the evidence of record must show that the petitioner is capable of relieving the beneficiary from 
having to primarily perform non-qualifying tasks. This analysis often calls for an examination of the 
petitioner's staffing structure, as merely claiming that the petitioner is capable of employing the beneficiary in 
a qualifying capacity is not sufficient without actual supporting evidence establishing who within the 
petitioner's organizational hierarchy is available to perform the non-managerial , day-to-day tasks of the 
company. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm . 1972)) . 
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. U.S. 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 at 42; Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is appropriate for USCIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the 
absence of employees who would perform the non-managerial or non-executive operations of the company , 
or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics 
Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D .C. 2001) . 
Turning first to the beneficiary's proposed position with the U.S. petitioner, the record shows that at the time 
of filing the petitioner's staff was comprised of five employees, including the beneficiary . When this 
information is considered in light of the beneficiary's job description and the beneficiary's own statement 
dated March 23, 2013, where the beneficiary stated that he actively manages and oversees the work of 
subcontractors hired by other companies, it becomes doubtful that the petitioner would employ the 
beneficiary in a primarily managerial or executive capacity. Based on the beneficiary 's March 23, 2013 
statement, which was submitted as part of the petitioner's RFE response, providing specialized expertise and 
management services to the petitioner's clients would require the work of managers with "specialized 
knowledge gained through years of experience .... " The beneficiary likened the petitioner 's business 
function and means of operation to that of an architectural firm, which works with laborers, whom the 
architectural firm itself neither contracts nor hires. The beneficiary explained that the petitioner operates 
similarly in the sense that it is paid by its clients to "provide expertise to those labors [sic], engineers and 
other workers that work on the project .... " To the extent that the beneficiary would directly oversee the 
various subcontractors hired by the companies that are involved in the panel construction process, the 
beneficiary would be can·ying out 
the tasks that are necessary to provide the management consulting services 
that the petitioner sells to its clients . 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
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 be "primarily" employed in a 
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managerial or executive capacity. See sections 10l(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 it is not clear how much of the 
beneficiary's time in the proposed position would be allocated to providing the services offered by the 
petitiOning organization. Looking to the job description included in the petitioner's initial Form I-140 
supporting statement, the petitioner indicated that the beneficiary would spend a combined total of 75% of his 
time supervising the petitioner's own employees as well as "the managers and engineers working in 
conjunction with [the petitioner] ." 
Despite the managerial or professional nature of the outside employees contracted by other companies that are 
involved in the engineering, construction, and installation of wall panels used in clean rooms, any time the 
beneficiary would spend managing the contracted employees of other companies would be deemed in this 
instance as time spent petforming tasks that are necessary to provide a service, albeit a management service, 
that the petitioner is hired to provide as a general contracting company and, thus, would be non-qualifying. In 
other words, the petitioner does not provide employees or contractors who would relieve the beneficiary from 
having to provide the management services offered to the petitioner's clients. Rather, the record indicates that 
the beneficiary himself would actively engage in providing these services as a general contractor by managing 
and/or overseeing contractors and in doing so, would not be carrying out tasks that fall within the statutory 
criteria of a qualifying managerial or executive capacity. 
Additionally, it is noted that the petitioner has failed to establish that its in-house staff are managerial, 
supervisory, or professional employees. Section 10l(a)(44)(A)(ii) of the Act. While the director oversees 
two employees and would therefore be deemed a managerial subordinate of the beneficiary , the senior 
manager of the accounting team lacks the subordinate employees that would qualify the position as 
supervisory or managerial and further does not have the educational credentials to be deemed a profession al 
employee. Thu s, in addition to providing a management service to the petitioner's clients, the beneficiary 
would allocate additional time to performing the tasks of a first line supervisor by over seeing the work of a 
non-professional employee. The petitioner has failed to establish that the time spent performing these non­
qualifying tasks would be only incidental to the beneficiary's proposed position . 
While counsel is correct in pointing out that a petitioner's staffing size should not be the sole consideration in 
determining the petitioner's eligibility, the key factor in the present matter that points to the petitioner's 
ineligibility is the beneficiary ' s job description rather than the petitioner's personnel size . Regardless of the 
petitioner's staffing, any time a beneficiary allocates his or her time primarily to providing the services of the 
organization or other non-qualifying tasks , that individual cannot be deemed as being employed in a 
qualifying managerial or executive capacity . An employee who "primarily" performs the tasks n~cessary to 
produce a product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Chur ch Scientology Int 'l., 19 I&N Dec. 593, 
604 (Comm'r 1988). In the present matter, the petitioner has offered a job description that indicates that the 
primary portion of the beneficiary's time would be allocated to carrying out the management service that the 
petitioner offers to its clients. Based on this fact alone the beneficiary's proposed position does not fit the 
statutory criteria and the petitioner has not established that the beneficiary would be employed in a qualifying 
managerial or executive capacity . 
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Next, turning to the facts pertaining to the foreign entity, the record shows that the beneficiary was charged 
with overseeing a staff of seven employees - three more employees than the beneficiary would supervise in 
his proposed position with the petitioning entity. Notwithstanding the three additional employees , however, 
the petitioner's March 23, 2013 statement expressly indicates that the beneficiary's job duties with the U.S. 
entity "are very similar" to those the beneficiary previously performed during his employment with the 
foreign parent entity. Although the job description contained within the petitioner's RFE response statement 
indicates that the beneficiary allocated some of his time to qualifying tasks, such as overseeing in-house 
managerial employees, presiding over company meetings, and reviewing and signing contracts, the 
description also indicates that a significant portion of his time was allocated to performing the non-qualifying 
tasks of providing management services to the foreign entity's clients and overseeing three potentially non­
managerial, non-supervisory, and non-professional employees- an outside director, an auditing director, and a 
deputy senior director in the accounting department. The petitioner did not identify these employees as 
supervisors and did not provide their educational credentials in response to the RFE, thus precluding a 
determination that they qualify as professional employees. 
While the petitioner indicated that 75% of the benefiCiary's time was allocated to this mix of both qualifying 
and non-qualifying tasks, the burden is on the petitioner to establish that the primary portion of the 
beneficiary ' s time was allocated to tasks within a qualifying managerial or executive capacity . Given that the 
petitioner did not indicate how the duties accounting for 75% of the beneficiary's time were divided, it cannot 
be determined whether the beneficiary performed primarily qualifying duties or whether he allocated his time 
primarily to the tasks that were necessary to provide the services of the foreign entity, i.e., managing the 
subcontractors hired by companies that took part in the wall panel design, construction, and installation 
process . 
Moreover, given the adverse conclusion with regard to beneficiary's proposed employment and the 
petitioner's claim that the beneficiary's foreign position was "very similar" to the position he fills in the 
United States, the record supports and warrants a similar adverse finding with regard to the beneficiary's 
former position abroad. While the employee job descriptions offered in response to the RFE indicate that a 
number of the foreign entity's administrative duties were carried out by the accounting team senior manager , 
the record indicates that the beneficiary was performing a number of other non-qualifying tasks, including 
actually providing the management services that the foreign entity offered to its clients. The additional flow 
charts and counsel's appellate brief are not sufficient to establish that the beneficiary performed primarily 
qualifying managerial or executive tasks. 
Lastly, despite counsel's focus on the standard of proof that is applicable to the matter at hand, it must be 
noted that going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec . 190 (Reg. Comm. 1972)) . The record in the present 
matter does not contain sufficient evidence to establish that the beneficiary was employed abroad or would be 
employed in the United States in a qualifying managerial or executive capacity. Therefore, based on the 
above adverse findings , appeal will be dismissed. 
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IV. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 
127, 128 (BIA 2013) . Here, that burden has not been met. 
ORDER: The appeal is dismissed.