dismissed EB-1C Case: Telecommunications/It

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. $ 1 153(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. 
obert P. Wiemann, Chief 
fdministrative Appeals Office 
P 
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 Delaware corporation operating in the State of Florida as a retailer of telecommunications, 
computer, and information technology. It seeks to employ the beneficiary as its president and chief executive 
officer. 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. 4 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 was employed abroad by a qualifying organization in the capacity of a manager 
or executive; and 2) the petitioner failed to establish that it would employ the beneficiary in the United States 
in a qualifying managerial andfor executive capacity, where the duties performed under an approved visa 
petition would be primarily managerial or executive. 
Based upon a comprehensive review of the petitioner's record of proceeding, the AAO concludes that the 
petitioner has overcome the first ground for denial. As such, this decision will focus on the remaining 
ground, whose focus is the beneficiary's proposed employment with the U.S. entity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of her arguments. She 
reviews the beneficiary's various job responsibilities, focusing on his prominent and essential position with 
the U.S. entity and pointing to the beneficiary's various achievements that resulted in the petitioner's financial 
and developmental progress. The AA0 will address counsel's arguments and the petitioner's submissions in a 
full discussion below. 
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 primary issue in this proceeding is whether the petitioner has established that it would employ the 
beneficiary in a managerial or executive capacity under an approved petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 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. fj 1101(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 petitioner submitted a letter dated May 16, 2006, which included the 
following list of tasks and responsibilities: 
Directs, plans, and implements policies and objectives of 'the organization in accordance 
with the board of directors. 
Directs activities of [the] organization to plan procedures, establish responsibilities, and 
coordinate functions among departments and sites. 
Analyzes operations to evaluate performance of [the] company and staff and determine[s] 
areas of cost reduction and program improvement. 
Confers with board members, organization officials, and staff members to establish policies 
and formulate plans. 
Reviews financial statements and sales and activity reports to ensure that [the] 
organization's objectives are achieved. 
Assigns or delegates responsibilities and tasks to subordinates. 
Directs and coordinates activities of business involved with buying and selling investment 
products and financial services. 
Establishes internal control procedures. 
Presides over the [bloard of [dlirectors. 
Directs [the] in-service training of staff. 
The petitioner also provided the following breakdown of the time the beneficiary would spend on various 
tasks and responsibilities: 
1. 
 Developing and implementing new account pursuit strategies for the company's vertical 
markets in accordance with [the] company's strategic marketing plan. The beneficiary may 
spend 20% of his time performing this task. 
2. 
 Identifying new client opportunities and growing the existing account relationships 
commensurate with the company's objectives. The beneficiary may spend 25% of his time 
performing this task. 
3. 
 Establishing effective relationships with clients and prospective clients at the senior 
management and executive level. The beneficiary may spend 25% of his time performing 
this task. 
4. 
 Malung presentations of [the] companies' service offerings to target prospective clients. 
The beneficiary may spend 10% of his time performing this task. 
5. 
 Participating in the preparation of proposals in coordination with other managers and 
clients; taking part in contract negotiations and coordinating its execution. The beneficiary 
may spend 20% of his time performing this task. 
Lastly, the petitioner added that the beneficiary oversees Latin American distributors and affiliated operations 
in Venezuela and Brazil as well as companies that do market research, sales and project execution. It is 
unclear, however, how much of the beneficiary's time would be attributed to this group of responsibilities, 
whether these responsibilities are covered by items listed in Nos. 1-5 above, and whether these 
responsibilities are directly related to the proposed position or whether they are part of the beneficiary's 
continued general oversight of the foreim entity. Additionally, while the uetitioner provided professional 
of worldwide channel distribution, and sales consultant, respectively, the record lacks documentation 
establishing that these individuals were employed by the petitioner when the Form 1-140 was filed. 
Moreover, the petitioner indicated in Part 5, No. 2 of the Form 1-140 that it employed ten individuals. 
However, the ten were not specifically identified. While other resumes were also provided, none were for 
individuals claiming employment directly for the U.S. petitioner. 
On November 20, 2006, the director issued a request for additional evidence (RFE) informing the petitioner 
that the documentation submitted thus far was insufficient to warrant approval of the petition. A portion of 
the RFE focused on the beneficiary's proposed employment and related job duties. Specifically, the petitioner 
was instructed to provide the documentation to assist Citizenship and Immigration Services (CIS) in 
determining whether the beneficiary's employment in the United States would be within a qualifying 
managerial or executive capacity. First, the petitioner was asked to clearly define the beneficiary's specific 
duties and indicate the portion of time attributed to each duty. Second, the petitioner was asked to provide the 
job titles and job descriptions of the beneficiary's subordinates. Finally, in light of the petitioner's reference to 
contractors, the petitioner was instructed to provide documentation establishing its use of contractors and to 
specify the amount of time the beneficiary would spend dealing with those who provide services on a 
contractual basis. 
In response, counsel provided a letter dated February 7, 2007 in which she provided two lists of tasks and 
responsibilities that were similar to those previously provided by the petitioner in the initial support letter. 
With regard to the bullet portion of the job description, counsel added that the beneficiary would be 
responsible for the following: organizing trade missions from the United States to Latin America in order to 
bring customers and investors; developing partnerships with potential vendors, technology providers, and 
financing sources; and reviewing and approving budgets to make sure they match the company's financial 
objectives, cash flow projections, and investment requirements. 
With regard to the percentage breakdown, counsel added that the beneficiary would spend approximately 
20% of his time overseeing regional operations and senior management's execution of projects. Additionally, 
instead of attributing 20% of the beneficiary's time to participating in the preparation of proposals, counsel 
altered that to 10% and added that the remaining 10% of the beneficiary's time would be attributed to 
overseeing Latin American distributors and affiliated operations and overseeing companies that do market 
research, sales, and execute projects. While the petitioner previously included these responsibilities in the 
original job description, it had failed to specify the amount of time the beneficiary would spend on these 
tasks. 
Additionally, counsel added a weekly breakdown, identifying, generally, the beneficiary's daily schedule 
during each of the five working days. The following information was provided: 
Monday: 
Conference call with the senior management of Brazil and Venezuela. 
Client proposals and key project status reviews. 
Conference calls with key account managers, either in company or with vendors and 
suppliers. 
Tuesday: 
Review of sales and cash flow status. 
Coordination with corporate on cash situation and financing requirements. 
Review with the CEO of [the parent company] current projects and investment 
initiatives[.] 
Follow up [on] multiple business development opportunities, either by email or by 
phone. 
Wednesday: 
Develop and review of contracts and authorization processes . . . of projects. 
Follow up [on] multiple business development opportunities, either by email or by 
phone both in Latin America and the United States. 
Thursday: 
Business developments follow[-]up and review of potential acquisition targets. 
Planning and organization of the trade missions. 
Meetings outside of the office with clients, potential investors and[/lor 
subcontractor[s] . . . or U[.]S[.] operational staff meetings. 
Friday: 
Project review for the U[.]S[.] operations. 
Review of tasks and operational activities due for the week. 
Counsel further stated that the beneficiary would spend 45% of his time performing tasks related to sales and 
vendor management and provided a list of vendors whose products and services it is authorized to distribute. 
While counsel also addressed the issue of the beneficiary's subordinates and contractors hired by the foreign 
entity, no information was provided about the petitioner's contractors and the beneficiary's subordinates in his 
proposed position with the U.S. entity. Thus, counsel provided no clarification to explain whom the 
beneficiary supervises, which duties are performed by the beneficiary's subordinates, and which services are 
carried out by contractors. 
Accordingly, in a decision dated April 3, 2007, the director denied the petition, finding that the petitioner 
failed to establish that it would employ the beneficiary in a qualifying managerial or executive capacity. The 
director observed that counsel's statement in response to the RFE merely reiterated information provided 
initially in support of the Form 1-140 and did not supplement the record with additional information about the 
job duties the beneficiary would perform under an approved petition. 
On appeal, counsel submits a brief discussing the beneficiary's proposed employment with the U.S. petitioner. 
Counsel clarifies the petitioner's business goals and states that the beneficiary has played a key role in the 
petitioner's advancement through his marketing and investment policies. However, as repeatedly stressed by 
the director, in examining the executive or managerial capacity of the beneficiary, CIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $204.56)(5). 
In the instant case, a number of descriptions have been submitted by the petitioner and by counsel, both 
focusing on the beneficiary's discretionary authority and extensive professional experience. While some job 
duties are cited in counsel's most recent statements, provided in response to the RFE, the AAO cannot 
overlook the percentage breakdown included among the petitioner's initial submissions. Not only is this 
percentage breakdown different from the one provided by counsel, but it also suggests that the primary 
portion of the beneficiary time would be spent performing operational tasks necessary in the course of the 
petitioner's daily operation. Specifically, the petitioner stated that 20% of the beneficiary's time would be 
spent developing and implementing marketing strategies to target the acquisition of new business. While the 
petitioner failed to specify how the beneficiary would develop and implement these strategies, both 
responsibilities are associated with selling products and services and, therefore, suggest the performance of 
non-qualifying tasks. 
The petitioner also claimed that 25% of the beneficiary's time would be spent identifying new client 
opportunities and cultivating new client relationships, also in an effort to sell the petitioner's products and 
services. Although the petitioner attributed another 25% of the beneficiary's time to establishing effective 
relationships with existing and prospective clients, it is unclear how this responsibility calls for duties that are 
significantly different from those the beneficiary would perform in his effort to identify new client 
opportunities and cultivating existing relationships. While the petitioner may have been able to clarify this 
apparent redundancy by specifying job duties associated with each responsibility, this necessary information 
has not been provided. Moreover, both sets of responsibilities suggest that the beneficiary would perform 
sales-related (and therefore non-qualifying) tasks necessary to sell products and services. 
The remaining 30% of the beneficiary's time is also attributed to tasks that are not clearly qualifying. 
Specifically, making presentations and participating in the preparation of client proposals imply the 
performance of daily operational tasks, which, despite their complex nature, cannot be deemed as qualifying. 
While the AAO acknowledges the weekly schedule provided by counsel in response to the RFE, the list of 
tasks that comprise the beneficiary's daily agenda includes a number of non-qualifying duties and fails to 
convey an understanding of how the beneficiary is relieved from primarily performing non-qualifjmg tasks. 
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 (Cornm. 1988). 
Additionally, the petitioner has provided a confusing overview of its organizational structure, failing to 
explain whom it employed at the time the Form 1-140 was filed, what job duties are assigned to other staff 
members, and how other employees would relieve the beneficiary from primarily performing non-qualifying 
tasks in the course of his daily work. While the organizational chart for the beneficiary's foreign employer 
illustrates the company's overall structure, the beneficiary's specific position within that structure, and his 
managerial position with respect to the professional employees that were his subordinates, the petitioner's 
organizational chart names a total of five people, including the beneficiary, as part of the hierarchy. There is 
no clear indication as to who provides the technical and consulting services, who markets and sells the 
petitioner's products and services, and whom the petitioner uses as external contractors or what services they 
provide. 
Despite the petitioner's claim of having employed ten people at the time it filed the Form 1-140,' the record 
lacks any financial documentation specifically identifying these individuals. In fact, the petitioner only 
provided tax documentation establishing its employment of the beneficiary. There is no documentation 
establishing that the petitioner employed the four remaining people identified in the organizational chart 
submitted with the response to the RFE. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
In general, CIS may not focus on a company's size alone, without taking into account the reasonable needs of 
the organization, as the determining factor in denying a visa to a multinational manager or executive. See 
10 1 (a)(44)(C) of the Act, 8 U.S .C. 3 1 10 1(a)(44)(C). However, it is appropriate for CIS 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. 
Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). The size of a company may be especially relevant when CIS notes discrepancies in the record and 
fails to believe that the facts asserted are true. See Systronics, 153 F. Supp. 2d at 15. In the present matter, the 
petitioner has not demonstrated that is possesses an organizational structure that will support a managerial or 
executive position. 
While the director properly emphasized the importance of a detailed description of the beneficiary's proposed 
employment, this element alone would not suffice without supplemental documentation establishing who, if 
not the beneficiary, carries out the petitioner's non-qualifying daily operational tasks. The petitioner simply 
cannot establish, even in the presence of a detailed job description, that the beneficiary primarily carries out 
tasks of a qualifying nature without providing adequate documentation showing its ablity to relieve the 
beneficiary from having to primarily focus on non-qualifying tasks. This can only be done if the beneficiary's 
tasks are described in the context of an organizational hierarchy that is capable of sustaining an employee in a 
managerial or executive capacity as of the date the Form 1-140 is filed. In the present matter, the petitioner 
has placed great emphasis on the beneficiary's high level within the organization, the complex nature of his 
responsibilities, and his job title. Despite the importance of these three components, they alone do not 
determine whether the beneficiary's proposed employment is within a qualifying capacity. 
I 
 See Part 5, No. 2 of the Form 1-140. 
Accordingly, the AAO concludes that the record as presently constituted is not persuasive in demonstrating 
that the beneficiary would be employed in a primarily managerial or executive capacity. The record does not 
establish that a majority of the beneficiary's duties would be primarily directing the management of the 
organization. Rather, the record indicates that a preponderance of the beneficiary's duties would be directly 
providing the operational services of the business. The petitioner has not provided sufficient information 
about its organizational hierarchy at the time the Form 1-140 was filed and, therefore, has failed to 
demonstrate that the beneficiary would be relieved from primarily performing non-qualifying duties. For this 
reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.