dismissed EB-1C Case: Telecommunications

identifying data deleted to 
prevent clearly unwarranted 
invasion of ptrSO"BL p rivacy 
US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
p-c COPY 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: SEP 0 3 2009 
LIN 07 055 52302 
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 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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). 
Appeals Office 
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 Florida corporation engaged in the manufacturing and distribution of 
telecommunications equipment. The petitioner seeks to employ the beneficiary as its general 
manager. 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. 5 1 153(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 a managerial 
or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his 
arguments. 
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. 
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 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(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 
hction 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 1 Ol(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. 
In support of the Form 1-140, the beneficiary's foreign employer submitted a letter dated October 30, 
2006, stating that the beneficiary's proposed U.S. employment would include directing and 
developing operations for the Latin American market, establishing new areas in Latin America to 
market the petitioner's product, and playing a key role in the petitioner's marketing and advertising 
activities, including participating in trade shows to introduce the petitioner's products in new regions, 
actually preparing marketing materials, and meeting with foreign diplomats to expose new countries 
to the petitioner's products. The following list of the beneficiary's proposed duties and 
responsibilities was also provided: 
Create, direct, develop and stabilize the new subsidiary company in the USA. 
Develop and direct new marketing strategies. 
Assist in engaging (hiring and firing) new staff. 
Identify and accomplish profit objectives. 
Direct and oversee the marketing of new products to Latin American customers. 
Oversee new advertising and sales resources, such as brochures, websites and 
special offers as required. 
Develop investment strategies for the corporation. 
Assist in establishing the goals and policies of the organization. 
Exercise wide latitude in discretionary decision-making; and receives minimal 
supervision from the parent company. 
The petitioner described the beneficiary's employment with the foreign entity as follows: 
[The beneficiary's] employment as International Sales Manager included supervision 
of the day to day management of all sales, the management function of the marketing 
department as well as the formulating of short[-] and long[-]term business decisions. 
He studied 2 years [of] Mandarin Chinese . . . to be able to understand the intricacies 
of doing business in an oriental environment as well as communicate effectively with 
his superiors. He implemented business development agenda, coordinated 
expositions and trade shows. He was in charge of corresponding with local and 
international distributors. 
Additionally, the petitioner provided an organizational chart, which appears to depict the hierarchies 
of both the foreign and U.S. entities. The foreign entity appears to be headed by executive 
management and the company's shareholders. The rest of the structural make-up consists of the 
following departments: research and development, quality control, production, warehouselinventory, 
finance, and saleslmarketing. This portion of the chart does not include any position titles of 
employees that occupied any of the positions within the six departments. The next portion of the 
Page 5 
chart shows three subsidiaries, including a subsidiary in Singapore, one in Dubai, United Arab 
Emirates, and the petitioner as the third subsidiary. The petitioner's structural make-up consists of 
the general manager position at the top of the hierarchy with an accounting office, a sales manager, 
and local and overseas distributors at the tier directly below the general manager. The sales manager 
is shown as the person in charge of local and overseas distributors, sales, and purchasing 
departments as well as the freight forwarders. 
Lastly, the petitioner provided a daily activity log for the two-week period from September 25 
through October 6, 2006. Although the petitioner did not clarify whether this document is 
representative of the activities the beneficiary would perform under an approved petition, the AAO 
will consider the contents of the log in making a determination regarding the beneficiary's 
employment capacity with the U.S. petitioner. 
On January 3, 2008, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide a detailed description of the specific job duties performed by the beneficiary 
abroad and those he would perform in the proposed position with the U.S. entity. The petitioner was 
asked to specify the percentage of time devoted to each job duty in both positions. The petitioner 
was also instructed to provide organizational charts for both entities, specifying the beneficiary's 
placement within each entity. Additionally, the director asked the petitioner to provide W-2s and 
their foreign equivalents for the beneficiary's subordinates at the foreign and U.S. entities. 
In response, the petitioner provided a statement dated February 24, 2008, which included the 
following description of the beneficiary's proposed employment with the U.S. entity: 
The beneficiary in addition to day to day business at the Miami office is also the 
direct liaison between operations at the Miami office and the [hlead [olffice through 
his direct superior. Among the most import duties that the General 
Manager must handle is to plan marketing and advertising initiatives either 
independently or together with established customers/distributors targeting specific 
markets. . . . The beneficiary also went on two specific business trips . . . to try to 
open new markets and obtain sales and distributor interest using the US Commercial 
Golden Key program. The percentage of time involved in these duties can be 
considered substantial and takes around 40% of the daily time schedule. 
Another important task that the beneficiary must undertake is the overseeing and 
general operation of [the petitioner] . . . . The [gleneral [mlanager, after having 
discussions with the [hlead [olffice the night before, conducts a daily meeting to 
understand what the company objectives are for that specific day where the [slales 
[mlanager, [alccountant, and [slales [elxecutive are present. Included are [sic] any 
information regarding incoming payments for orders placed from customers, 
discussions of any new customer initiatives and general projects, any discussion and 
solving of product problems or issues that were received overnight, and any 
marketing regions that need to be targeted and researched. Also, equipment 
investigation is important and sometimes new models and software are sent to us for 
study to then allow us to be able to explain clearly and concisely to customers. The 
[gleneral [mlanager then delegates the different tasks to the personnel and they need 
to have a clear idea [of] what objectives should be take care of for that day. The 
[gleneral [mlanager also must deal with the financial aspect of the office including 
any bills, payments that need to be made or decided upon, new services such as 
internet, telephone and/or courier services . . . . Also, general accounting information 
that the [blranch [olffice needs to send to the [hlead [olffice, must be studied and 
approved by the [gleneral [mlanager before sending to the [hlead [olffice. Another 
40% of the time is spent in these daily tasks. 
The other important aspect of the beneficiary's daily tasks are [sic] studying new 
technologies and competitor's products to understand where [the petitioner's] products 
are positioned in the market place. It is necessary to understand market pricing, any 
new functions or benefits and marketing initiatives from our competitors, and then 
inform our colleagues overseas so they can have an idea how to proceed. Going on 
the internet, visiting product exhibitions, discussing with our distributors in Latin 
America and studying different manuals can accomplish this task. This task takes 
around 20% of the time. 
Additionally, the petitioner provided an activity log for the one-week period for September 3 to 
September 7, 2007. It is noted, however, that in light of the date of the activity log, it is once again 
unclear whether the activities discussed therein are an accurate representation of the tasks the 
beneficiary would be expected to undertake under an approved petition. Notwithstanding this lack 
of clarity, the AAO will consider the activities in the September 2007 activity log in conjunction 
with the activities discussed in the September 2006 activity log that was submitted previously. 
The petitioner also provided organizational charts for the U.S. entity, where the beneficiary is 
currently employed, and for the foreign organization, where the beneficiary was previously 
employed. The latter chart is similar to the one submitted earlier, showing once again that the 
foreign company was divided into six departments, including the sales and marketing department, 
which was further subdivided into domestic sales, international sales, local distributors, and Jia Ying 
Trading located in Singapore. The beneficiary was identified as the international sales department's 
sales manager, overseeing the work of four sales executives, each in charge of a different sales 
region. The organizational chart submitted to illustrate the structure of the U.S. entity appears to be 
nearly identical to the organizational chart submitted initially in support of the petition, with the one 
exception being that the beneficiary's position as the U.S. entity's general manager is clearly 
identified. The remainder of the chart is confusing, seemingly listing positions that are not filled. 
According to the job descriptions for the beneficiary's U.S. subordinates, the petitioner employs an 
accountant/warehouse manager, a sales manager, and a sales executive. However, the organizational 
chart lists various additional positions, including local and overseas distributors under executive 
management, local and overseas distributors within the sales and purchasing departments, and 
freight forwarders. As the petitioner did not provide job descriptions for any of these positions, it 
appears that they are either vacant or are positions that apply to service providers or employees of 
the foreign entity. 
With regard to the beneficiary's employment with the foreign entity, the petitioner provided a letter 
dated February 26,2008 containing the following job description: 
Due to the special language skill set observed in [the beneficiary] . . . it was his 
responsibility to be the mediator and translator of any incoming questions, problems 
or business from overseas clients. Many times, customers would visit Taiwan and 
visit our factory installations and thus the burden and delicate balance of assisting and 
taking care of the business requirements of our important customers versus the aims 
and obtaining of orders from the corporate side was in the hands of [the beneficiary]. 
Due to his unique ability, he was able to successfully manage these responsibilities 
and for this reason he was quickly promoted to the post of International Sales 
Manager responding directly to the factory administration which included both the 
General Manager . . . and the General Sales Manager . . . . 
. . . . After his promotion, [the beneficiary] was responsible for a sales department of 
[four] Sales Executives[,] each in charge of a different region. . . . 
All incoming e-mails, order requirements and projects were given to [the beneficiary] 
first for his perusal and delegation of duties. A small [slales meeting would convene 
first thing in the morning almost everyday [sic] to understand what clients would be 
taken care of by what [sic] [slales [elxecutive. If major orders were being placed by a 
client, then a more structured meeting would take place including the [slales 
[elxecutive in charge of the client, [the beneficiary], the [gleneral [mlanager, the 
[plroduction [dlept. [mlanager, and the [wlarehouse/[i]nventory [dlept. [mlanager. A 
production schedule would be formulated for this order as well as any questions, 
comments or problems relating to this specific order. . . . 
The beneficiary would need to also consider marketing initiatives either 
independently or together with our distributors for product placement and market 
expansion in different regions. Some of the initiatives included magazine, newspaper 
and internet web-site advertising campaigns, equipment demos and workshops, as 
well as evaluate any initiatives instigated by our distributors. Also, the beneficiary 
was charged with choosing and then organizing overseas missions either going on 
business trips either alone or together with his supervisorslsuperiors or for 
participation in technological exhibitions or meetings and demonstrations with 
customers. . . . 
Finally, during his time in Taiwan the beneficiary was in charge of evaluating and 
commenting on the performance of the [slales [elxecutives directly responsible and 
present his conclusions to the executive management. He was in charge of, together 
with his superiors, of [sic] hiring and firing personnel as well as evaluating yearly 
objectives attained during [the] calendar year and presenting them to his superiors at 
the annual Chinese New Year general business meeting. 
After evaluating the petitioner's submissions, the director denied the petition in a decision dated June 
30, 2008, noting that the petitioner failed to provide the dates of the beneficiary's employment 
abroad in the promoted position of international sales manager and further observed that the 
petitioner failed to provide a list of specific job duties or the requested time constraints indicating the 
percentage of time spent performing each job duty. 
Page 8 
The director also took into account the various job descriptions and most recent activity log and 
found that the majority of the beneficiary's time is spent working with the petitioner's customers. 
The director also considered the organizational hierarchy, concluding that with a limited support 
staff of three employees (not including the beneficiary) the beneficiary's time would not be primarily 
devoted to the performance of tasks within a qualifying managerial or executive capacity. 
On appeal, counsel submits a brief, arguing first that the director had not reason to question the dates 
of the beneficiary's foreign employment, as such information was included in the petitioner's prior 
submissions. However, a review of the director's specific observation suggests that the petitioner's 
prior statements as well as statements from counsel lacked clarity with regard to the date of 
employment specifically pertaining to the beneficiary's position of international sales manager. To 
explain further, while the petitioner's letter from February 26, 2008 states that the beneficiary's 
employment with the foreign entity lasted from May 1994 until 2001, the letter also indicates that 
the beneficiary "literally had to work his way to the top,'' thereby indicating that he did not start his 
employment in the position of international sales manager, but rather was promoted to that position 
after he had been working with the foreign entity for some time. The letter merely states that the 
beneficiary "was quickly promoted to the post of International Sales Manager," but does not specify 
when the promotion took place. As the petitioner claims that the beneficiary's position of 
international sales manager was qualifying employment, the date of the employment is highly 
relevant and must be established with sufficient clarity. See 8 C.F.R. § 204.5(j)(3)(i)(B). 
The AAO further notes that while the foreign entity's organizational chart matches the dates of the 
beneficiary's employment abroad as claimed by counsel, the dates specified by the petitioner in the 
February 2008 letter are inconsistent with the dates that are shown in the organizational chart and 
which are also claimed by counsel. Specifically, while the chart and counsel both indicate that the 
beneficiary was employed abroad from 1995 to 2000, the petitioner's letter from February 2008 
indicates that the employment actually commenced in May 1994 and continued until 2001. 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). Here, the discrepancy remains unresolved, thereby furthering 
the uncertainty as to the specific dates of the beneficiary's employment abroad in the position of 
international sales manager. 
Next, the AAO observes that the petitioner failed to comply with certain WE instructions, which 
expressly state that the beneficiary's job descriptions must be accompanied by a percentage 
breakdown indicating specific time constraints that apply to specific daily tasks. In the present 
matter, the foreign job description contains none of the requested time constraints, which are critical 
for the purpose of establishing how much time the beneficiary cumulatively spent performing 
qualifying tasks versus the non-qualifying ones. It is noted that 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). In reviewing the description of job duties contained in the February 26, 2008 letter, 
the AAO observes that the beneficiary's responsibilities included marketing initiatives. The 
description does not, however, specify the extent of the beneficiary's involvement in such initiatives 
so as to enable the AAO to determine whether the beneficiary was expected to perform non- 
qualifying tasks in meeting his marketing-related responsibilities. The petitioner also stated that the 
beneficiary was directly involved in technological exhibitions and product demonstrations, 
indicating that there was a sales component in the beneficiary's foreign employment and that he was 
not merely overseeing the work of others. While the AAO does not dispute that the beneficiary's 
foreign employment also had a supervisory component, the record does not establish that the 
beneficiary's subordinates were supervisory, professional, or managerial employees. See section 
101(a)(44)(ii) of the Act. Thus, in light of the deficiencies discussed above, the AAO cannot 
determine that the beneficiary's employment abroad called for the performance of duties that were 
primarily within a qualifying managerial or executive capacity. 
With regard to the beneficiary's proposed employment, counsel argues that the "[bleneficiary's work 
duties are at the highest level possible within the organization." However, in examining the 
executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration Services 
(USCIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 204.50)(5). In 
the instant case, while the petitioner complied, somewhat, with the director's request for a 
description of the beneficiary's proposed job duties, the petitioner failed to assign a percentage of 
time to specific job duties and instead subdivided the job description into three groups and a 
percentage of time assigned to each group rather than to each individual job duty. In reviewing the 
content of the job description, it appears that a portion of the beneficiary's time would be spent on 
marketing-related tasks in an effort to expand the petitioner's client base. The petitioner specifically 
discussed two business trips the beneficiary took to achieve the express goal of obtaining clientele in 
new markets. A review of the activity logs for the two-week period in 2006 and the one-week 
period in 2007 further reiterates the beneficiary's active role in marketing the petitioner's product and 
his attempt to expand the petitioner's client base to include customers in different countries within 
the regions of interest. The activity logs, particularly the log covering the two-week time period in 
2006, indicate that the beneficiary also spends a portion of his time coming up with solutions to 
resolve product-related problems, thereby indicating that at least a portion of the beneficiary's time is 
devoted to customer service-related tasks, which, like the beneficiary's marketing duties, are deemed 
operational and, therefore, non-qualifying. 
The Act and precedent case law firmly establish that 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 (Comrn. 1988). In the present 
matter, the director clearly attempted to elicit the necessary information by requesting that the 
petitioner provide the response in a particular format, which includes listing specific job duties and 
assigning a percentage of time to each individual task. Although the petitioner clearly responded 
with several different types of job descriptions, none were in the format that was requested in the 
RFE. The petitioner's failure to present information in the requested specific manner precludes the 
AAO from gauging the proportion of the beneficiary's time that would be devoted to qualifying 
versus the non-qualifying tasks. As such, the AAO cannot make the affirmative determination that 
the beneficiary's time would be primarily allotted to tasks within a qualifying managerial or 
executive capacity. 
In summary, the petitioner has failed 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. 
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 1025, 1043 
(E.D. Cal. 2001), afd, 345 F.3d 683 (9th Cir. 2003). 
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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.