dismissed EB-1C Case: Telecommunications And Electronics

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
08wprlr+ 
@ 
U.S. Citizenship 
PUBLIC copy 
 and Immigration 
~ND s$= Services 
<$, '6, 
FILE: Office: TEXAS SERVICE CENTER Date: DEC () 6 2006 
SRC 04 205 525 13 
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. 
.r. /--- 
ROB&~ P. iem nn, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company organized in the State of Florida. It is engaged in technical 
consulting in the telecommunications and electronics industri2s. 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. 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition on 
two independent grounds of ineligibility: 1) the petitioner failed to establish that the beneficiary would be 
employed in a managerial or executive capacity; and 2) the petitioner failed to establish that the beneficiary 
was employed abroad in a qualifying managerial or executive position. 
On appeal, counsel disputes the director's conclusions and resubmits documentation submitted previously in 
response to the director's various requests. 
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 affiliatebor 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 issues in this proceeding call for an analysis of the beneficiary's employment capacity. The first 
issue is whether the petitioner established at the time it filed the Form 1-140 that the beneficiary would be 
primarily employed in a managerial or executive capacity, and the second issue is whether the beneficiary 
was employed abroad in a primarily managerial or executive capacity. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties ,unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), provides: 
- 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the maaagement 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 provided a letter dated July 12, 2004, which contained the 
following list of the benekciaryls proposed responsibilities in the United States: 
Establishing and formulating the goals and policies of our corporation, hiring and firing 
employees, evaluating the work performance of employees, setting their salaries, and in 
general overseeing all business activity of our corporation. 
It is noted that the petitioner did not provide a description of the duties performed by the beneficiary during 
his employment abroad. Accordingly, a request for additional evidence (RFE) was issued on March 25,2005. 
The petitioner was instructed to provide evidence and information to establish that the beneficiary would be 
employed in the United States and was employed abroad in a qualifying managerial or executive capacity. 
With regard to the beneficiary's employment abroad, the petitioner submitted a letter dated May 20, 2005 
from the general manager of the foreign entity, who stated that the beneficiary's subordinates included three 
supervisory employees. The foreign entity's organizational chart, which was also part of the petitioner's 
response to the RFE, showed that each of .the beneficiary's three subordinates had a subordinate staff. 
Additionally, the general manager provided a, description of the beneficiary's job responsibilities abroad: 
Establish the business ,and financial goals and policies of our corporation together with 
overseeing the achievement of these business and financial goals an[d] policies, establish new 
markets for the sale of our products, supervise and evaluate the work performance of our 
[tlechnical [slupport [mlanager, [aldministrator and [slales [mlanager, and hire and fire 
employees and set salaries. 
With regard to the beneficiary's proposed employment in the United States, the petitioner provided a letter 
dated May 17, 2005 from the U.S. entity's sales manager, who stated that he would be the beneficiary's 
subordinate and that he, in turn, would supervise -the U.S..entityls sales person. The sales manager provided 
the following description of the beneficiary's proposed responsibilities: 
[Elstablishing the business and financial goals and policies of our corporation together with 
overseeing the achievement of these business and financial gaais and policies, establish new 
markets for the sale of our telecommunications products throughout South America, 
supervise and evaluate the work performance of our [slales [mlanager and hire and fire 
' 
employees and set salaries. 
After reviewing the information provided in response to the RFE, the director determined that the petition did 
not warrant approval. Accordingly, in a notice of intent to deny (NOID) dated December 10, 2005, the 
director instructed the petitioner to provide detailed descriptions of the job duties to be performed by the 
beneficiary in his proposed position and those performed during his employment abroad. Specifically, the 
director asked that the list of specific duties be accompanied by a percentage breakdown of time to be spent 
on each duty as well as the job titles, job duties, and educational levels of the beneficiary's subordinates. 
In response, the petitioner provided a letter from counsel dated -January 6, 2006, which was accompanied by 
exhibits addressing the issue of the beneficiary's job duties. With regard to the beneficiary's proposed job 
duties in the United States, the petitioner provided a letter-dated January 4, 2006, which contained the 
following information: 
Approximately twenty percent of [the beneficiaryl's work week involves establishing the 
business and financial goals and policies of our corporation together with overseeing the 
achievement of these business and financial goals and policies which include reviewing 
budget reports, financial statements and business activities reports, approximately forty 
percent of [the beneficiaryl's work week involves establishing and developing new markets 
for the sale of our products, approximately thirty percent of his work week involves 
supervising and evaluating the work performance of our [slales [mlanager together with 
hiring and firing employees and setting salaries. The balance of [the beneficiaryl's work 
week is administrative in nature. 
With regard to the beneficiary's employment abroad, the petitioner provided a letter dated January 2, 2006 
from the administrator of the foreign entity. The letter provided the following information: 
4 
Approximately twenty percent of [the beneficiaryl's work week involves establishing the 
business and financial goals and policies of our corporation together with overseeing the 
achievement of these business and financial goals and policies which include reviewing 
budget reports, financial statements and business activity reports, approximately twenty 
percent of his work week involves coordinating all activities between administration, sales 
and technical support, approximately thirty percent of his work week involves establishing 
new markets for the sale of our telecommunication products and approximately thirty percent 
of his work week involves overseeing and evaluating the work performance of our 
[aldministrator, [slales [mlanager and [tlechnical [slupport [mlanager together with hiring 
and firing employees and setting salaries. 
On January 13, 2006, the director denied the petition noting that the petitioner's response to the NOID did not 
include a clear definition of the beneficiary's job duties. By contrahi, the director also found that the 
beneficiary's proposed duties include business marketirlg, staff recruitment, and supervision and concluded 
that such duties are non-qualifying. While the AAO concurs with the overall conclusion regarding the 
petitioner's eligibility, the two findings underlying that conclusion are inconsistent with one another. Namely, 
the finding that the beneficiary would primarily perform non-qualifying duties necessarily implies that the 
petitioner has provided a sufficiently detailed description of duties as required by 8 C.F.R. 9 204.50)(5). 
However, the descriptions provided by the petitioner with regard to the beneficiary's proposed job duties 
consist of a compilation of broad job responsibilities. In order to accurately illustrate how those 
responsibilities would be executed, the petitioner must describe the actual duties to be performed. Specifics 
are clearly an important indication of whether a beneficiary's. duties are primarily executive or managerial in 
nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afdi- 905 F.2d 41 (2d. Cir. 1990). Merely stating that 
50% of the beneficiary's time would be spent setting goals and supervising a single subordinate employee 
does not identify the actual duties the beneficiary yould actually perform on a daily basis. Nor did the 
petitioner state how the beneficiary plans to devqlop markets in which to sell the petitioner's products, a 
responsibility to which the beneficiary would allgt another 40% of his time. Thus, the record lacks the 
detailed description of duties which would have epabled the director to render an affirmative finding as to the 
nature of the duties that the beneficiary would primarily perform. As such, the AAO withdraws one of the 
director's erroneous findings and affirms the finding that the record lacks sufficient evidence and information 
to determine what duties the beneficiary would perform on a daily basis. 
Furthermore, the indication that the petitioner would sell products rather than services contradicts the 
petitioner's prior claim with regard to the nature of its operations. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
While counsel is correct in stating that the size of a beneficiary's subordinate staff is not the only factor used 
to determine the petitioner's eligibility, this factor can. and should be considered along with others in order to 
gauge the petitioner's ability to relieve the beneficiary from having to primarily perform non-qualifying 
operational tasks. In the instant matter, the petitioner's organizational chart shows that the U.S. entity is 
comprised of three employees and that each employe represents one tier within the organization's hierarchy. 
However, the fact that one of those employees possesses a managerial title and is depicted as an employee 
with a subordinate does not lead to the conclusion that the beneficiary would primarily perform qualifying 
managerial tasks, none of which have been specifically idqntified. Thus, the petitioner's claim to eligibility 
rests in large part on general statements and an organizational structure that is suggestive of an organization in 
its primary stage of development. As such, it cannot be found that the petitioner has met its burden of 
establishing that the beneficiary will be primarily employed in a managerial or executive capacity. 
With regard to the beneficiary's employment abroad, the director properly concluded that the petitioner failed 
to provide a detailed description of job duties, thereby precluding Citizenship and Immigration Services (CIS) 
from finding that the beneficiary primarily performed duties of a qualifying nature. 
\ 
On appeal, counsel discusses the foreign entity's organizational ~tructure, which is considerably more 
complex than that of the petitioner itself. Counsel points out the supervisory personnel that comprised the list 
of the beneficiary's subordinates. However, despite the staffing hierarchy which has been illustrated in the 
foreign entity's organizational chart, the record does not identify any specific duties performed. The MO 
cannot make assumptions regarding the beneficiary's employment capacity merely based on the foreign 
organization's hierarchy, which illustrates staffing levels that can potentially relieve the beneficiary from 
having to perform non-qualifying tasks. The actual duties theniselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108. A beneficiary may not be found to be 
acting in a managerial or executive capacity merely on the basis .of the number of employees he or she has 
supervised or directed. See 5 101(a)(44)(C) of the Act, 8 U.S.C. tj 1101(a)(44)(C). 
Accordingly, the petitioner's failure to provide a detailed description of duties that would be performed in the 
United States and those performed during the beneficiary's employment abroad, preclude the AAO from 
concluding that the beneficiary has been and would be employed 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), affd, 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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.