dismissed EB-1C Case: Textiles

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: MAY 1 7 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) ofthe Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 New York corporation that seeks to employ the beneficiary as its director of operations. 
Accordingly, the petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant 
to section 203 (b)(1 )(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1 )(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 would be employed in the United States in a managerial or executive capacity; 
and 2) the petitioner failed to establish that it has the ability to pay the beneficiary'S proffered wage. 
On appeal, counsel disputes the denial and the underlying reasons therefore. Counsel submits a supplemental 
brief addressing each of the grounds that served as a basis for denial. After thoroughly reviewing the record, 
the AAO finds that the director's conclusion regarding the petitioner's ability to pay was issued in error and 
hereby withdraws this finding as a basis for denial. Therefore, the remainder of this decision will focus 
primarily on a discussion of the beneficiary'S proposed employment with the U.S. petitioner. 
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. 
Page 3 
The primary issue in this proceeding calls for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the petitioner submitted sufficient evidence to establish 
that the beneficiary 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. § 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 10 I (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 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, of the petitioning entity, submitted a letter dated 
~O, 2007 in which he discussed the beneficiary's proposed employment with the U.S. entity. _ 
_ tated that the beneficiary has the required managerial and technical expertise "to set up and run our 
customer service department to assist with our deliveries." He further stated that the beneficiary would have 
the authority to hire and train employees, make personnel decisions, create polices to further company goals, 
and assess marketing strategies and implement any necessary changes. Also provided in support of the 
petition was a list of the four employees whom the petitioner employed at the time the Form 1-140 was filed. 
The employees included the company CEO, a designer, a sales person, and an office assistant. 
On February 23, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, in part, a detailed description of the beneficiary's proposed position. The petitioner was asked to list 
the beneficiary's daily job duties, indicate what percentage of time would be allocated to each duty, disclose 
the number of subordinates who would report to the beneficiary, and provide each subordinate's job title, job 
duties, and educational level. 
The response included a letter dated March 17, 2009 fr~ who stated that the beneficiary's 
proposed position involves directing company employees ~o design, sales, and daily operations as 
well as managing the design area and servicing customers._ repeated statements made earlier with 
regard to the beneficiary's proposed employment and further added that the beneficiary would allocate 80% 
of his time to visiting customers and making necessary product changes to meet customer needs and 20% to 
shopping the market and conducting research based on customer needs. urther indicated that the 
beneficiary would negotiate delivery and pricing with yam companies and generally added that the 
beneficiary would work both in an executive and a managerial capacity. 
The response also included the petitioner's organizational chart, which depicted _t the top of the 
petitioner's organizational hierarchy followed by the vice president of sales and the beneficiary as operations 
director. The chart depicts the design director as the beneficiary's direct subordinate and the employee at the 
lowest level within the organizational hierarchy. 
On May 18,2009, the director issued a decision denying the petitioner's Form 1-140. The director noted that 
the petitioner provided an overly broad description of the beneficiary's proposed employment and thus failed 
to convey an understanding of what the beneficiary would actually be doing on a daily basis. The director 
concluded that the petitioner failed to submit sufficient evidence to establish that the beneficiary would be 
employed in a qualifying managerial or executive capacity. 
On appeal, counsel contends that the director's findings are baseless and asserts that the number of employees 
the beneficiary would supervise is an issue that is irrelevant to the petitioner's eligibility. Counsel points out 
that the petitioning entity had been operating for several years prior to the beneficiary's arrival, claiming that 
this factor is sufficient to establish that the beneficiary would not need to perform the petitioner's 
administrative tasks. Counsel also emphasizes the beneficiary's discretionary authority with regard to 
personnel matters and sales policies. 
The AAO finds that counsel's arguments are not persuasive in overcoming the denial. 
Despite counsel's assertion that the beneficiary would not need to perform the petitioner's administrative 
functions, the AAO points out that the list of non-qualifying tasks is not merely limited to tasks of an 
administrative nature. Rather, any task that is necessary to produce a product or to provide services would be 
deemed as a non-qualifying task. Thus, any 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 
Page 5 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593,604 (Comm. 1988). While the AAO acknowledges that no beneficiary is required to allocate 100% 
of his time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks 
the beneficiary would perform are only incidental to his/her proposed position. In the present matter, despite 
the overly vague job description provided in response to the RFE, _ provided enough information 
to indicate that the beneficiary would allocate key portions of his time to matters involving customer service, 
including traveling to see individual customers and performing market research in an effort to address 
customers' individual concerns. _also indicated that the beneficiary would negotiate pricing and 
delivery with yam companies. While these tasks may be essential for the petitioner's operation and overall 
financial success, they are nevertheless tasks that are necessary to provide services to the petitioner's clientele 
and thus cannot be deemed as tasks that are within a qualifying managerial or executive capacity. 
The AAO does not dispute that the beneficiary may have a certain degree of discretionary authority over 
matters concerning the sales of the petitioner's products. However, in order to establish that the beneficiary 
would be employed in a qualifying capacity, the petitioner must provide sufficient evidence to show that the 
primary portion of the beneficiary's time would be allocated to tasks of a qualifying nature. Here, while only 
a few tasks were specifically mentioned, the record strongly indicates that the beneficiary would allocate most 
of his time to tasks of a non-qualifying nature. The fact that the beneficiary may be performing such tasks to 
best meet the petitioner's operational needs is of little relevance, as the petitioner's needs do not supersede its 
statutory burden, which requires the petitioner to establish that the beneficiary would allocate the primary 
portion of his time to performing tasks within a qualifying managerial or executive capacity. Merely claiming 
that the proposed position meets both statutory definitions is meaningless when the evidence of record does 
not corroborate the claims being made. 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 summary, the AAO finds that the petitioner has not provided sufficient evidence to establish that the 
beneficiary would be relieved from having to primarily perform the petitioner's daily operational tasks. 
Rather, the record strongly indicates that the petitioner's organizational needs would require the beneficiary to 
allocate a prominent portion of his time to sales-related tasks, which are deemed to be outside the realm of 
what is considered to be within a qualifying managerial or executive capacity regardless of the beneficiary's 
discretionary authority over the sales function. Therefore, the AAO finds that the petitioner has failed to 
establish that the beneficiary would be employed in a qualifying capacity and the instant petition cannot be 
approved. 
Additionally, while not previously addressed in the director's decision, the AAO finds that the petitioner has 
failed to provide sufficient documentation to establish that it meets the initial filing requirement discussed at 
8 C.F.R. § 204.5(j)(3)(i)(B), which states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifying managerial or executive position for at least one out of the three years prior to his entry 
to the United States as a nonimmigrant to work for the same employer. The job description provided in 
response to the RFE was overly vague in that it failed to specify the actual job duties associated with 
managing the company, overseeing orders, and setting production quality. These broad terms simply fail to 
establish the beneficiary's specific daily tasks and thus preclude the AAO from being able to assess the 
beneficiary's foreign employment and determine whether the beneficiary was employed in a qualifying 
managerial or executive capacity. 
. , 
Page 6 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. 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); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
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.