dismissed EB-1C Case: Wholesale

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privaoy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
b (, f 
EAC 05 063 50086 
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 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
9 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of New York that is 
engaged in the import and wholesale of handbags. The petitioner seeks to employ the beneficiary as its chief 
executive officer and president. 
The director denied the petition on July 24, 2006. The director determined that the petitioner had not 
established that the beneficiary would be employed in a primarily managerial or executive capacity for the 
United States company. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
mischaracterized the nature of the petitioner's business, erroneously noted discrepancies with respect to the 
number of employees working for the U.S. company, and placed undue emphasis on the company's staffing 
levels. Counsel asserts that the beneficiary will be employed in a managerial capacity. Counsel submits a 
brief in support of the appeal. 
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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 
Page 3 
statement that 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. See 8 C.F.R. 
5 204.56)(5). 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed in a managerial or executive capacity for the United States entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the terrn "managerial capacity" as an 
assignment withn 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 1101(a)(44)(B), defines the term "executive capacity" as 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. 
The immigrant petition was filed on December 20, 2004. The petitioner stated on Form 1-140 that the 
beneficiary would be employed as chief executive officer and president of the eleven-person company. The 
Page 4 
petitioner submitted a supporting letter dated November 23, 2004, in which it described the beneficiary's 
employment as CEO and president as follows: 
[H]e will be responsible for overseeing all U.S. operations, setting organizational goals and 
policies, hiring personnel, coordinating with our overseas parent company and making other 
fundamental business decisions. He will direct manageriallprofessional employees 
responsible for accounting, merchandising and other key corporate functions. He will liaise 
with our overseas management on all major corporate matters and ensure the coordination of 
operations between us and our overseas headquarters. 
The petitioner submitted its New York Form NYS-45, Quarterly Combined Withholding, Wage Reporting 
and Unemployment Insurance Return for the third quarter of 2004, which indicated a total of eleven workers. 
The petitioner also submitted an organizational chart which depicts the beneficiary as CEO and president over 
two vice presidents and a general manager, who in turn supervises an IT specialist, an import/customs 
employee, three sales and marketing employees, a warehouse worker, and an employee responsible for 
accounts payablelreceivable and credit/collection. All of the employees identified on the organizational chart 
appear on the petitioner's quarterly wage report as of September 30,2004. 
The director issued a request for evidence on October 4, 2005, in part, instructing the petitioner to submit 
additional evidence to establish that the beneficiary would be employed by the United States entity in a 
managerial or executive capacity. Specifically, the director requested: (1) a detailed description of the 
beneficiary's executivelmanagerial duties to include a breakdown of the number of hours to be devoted to 
each duty on a weekly basis; (2) a copy of the company's 2004 Forms W-2 and W-3, and evidence of the 2005 
payroll roster; (3) copies of IRS Forms 941, Employer's Quarterly Federal Tax Return, for the fourth quarter 
of 2004 and first quarter of 2005; and (4) evidence documenting the number of contractors used by the 
company, and duties performed, if applicable. The director also asked specific questions regarding the 
number of supervisors managed by the beneficiary, the job titles and job duties of all employees managed, the 
amount of time the beneficiary allocates to managerial/executive duties, and the degree of discretionary 
authority the beneficiary exercises over the day-to-day operations of the company. 
In a response received on December 30, 2005, the petitioner provided the following description of the 
beneficiary's duties: 
50% of the time - at the New York office 
1) 
 Setting company policies and direction for the company's development including 
products expansiodmarketing and personnel structure. 
2) 
 Manage human resources and make determination on staff recruitments especially staff 
manpower. 
3) 
 Attending meetings and obtain reports from department managers. Periodically discuss 
various situations arising from day-to-day work with salespersons, showroom 
employees, and warehouse management and solve all related issues. 
4) 
 Oversee account with major customers - discuss products, market and customer services 
with major customers and make decision on major contracts. 
Page 5 
5) 
 Oversee the efforts of research on fashion trend through internet, fashion magazine and 
other sources to decide new product development. 
6) 
 Oversee and manage general company affairs including accounting, marketing/promotion, legal, 
government, customs, etc. 
15% of the time - traveling to different cities throughout the U.S. 
1) Conducting market research - Travel to US major wholesale markets such as Chicago, Los 
Angeles, Dallas, Houston, and Miami.. . etc. to get more knowledge about the handbag market, 
our product's share in the markets, as well as fashion market trend. 
2) Meeting wholesalers - travel to meet wholesale customers to get feed back about our products, 
customer services, and product pricing, etc. 
3) Attending trade shows - Attend major trade shows such as ASDIAMD Trade Show in Las Vegas 
to get more customers and promote our products. 
35% of the time - at the main office in China 
1) Attending meetingslreport to management - Discuss material resources, product line, cost and 
profit, and quality control etc. with purchasing, design and production department. 
2) Placing orders and scheduling production for the new season 
Discuss and select styles and colors for coming season based on US market and customer needs. 
Place orders in term[s] of quantity of each style and make production and shipment schedule. 
3) Search and collect new material samples that may [be] suitable for US market and provide them 
to US customers to get feed back 
The petitioner also submitted its quarterly wage report for the fourth quarter of 2004, which listed a total of 
ten employees as of the date the petition was filed. The petitioner attached an organizational chart which was 
similar to the chart provided in support of the petition, but listed a different individual as "warehouse," and 
showed only two employees in the saleslmarketing department. 
The director denied the petition on July 24, 2006, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. The director noted some 
discrepancies between the petitioner's quarterly wage reports and organizational chart, and found that only the 
beneficiary earned a salary that is "commensurate with a full-time managerial or executive position in a major 
metropolitan retail market." The director emphasized that the petitioner had failed to provide the requested 
evidence regarding the job duties performed by the beneficiary's subordinates, and found that the beneficiary's 
job description was too vague to establish that he would be employed in a qualifying managerial or executive 
capacity in the context of the petitioner's current staffing arrangement. 
The director further noted that the petitioner reported gross sales in excess of $5,000,000, while the evidence 
submitted only confirmed the employment of one part-time sales person at the time of filing. The director 
therefore concluded that it "seems likely that the beneficiary has been and will be primarily engaged in 
providing sales and services to your organization's clients," or otherwise providing the goods and services of 
the U.S. company. 
Page 6 
On appeal, counsel for the petitioner asserts that the director mischaracterized the evidence submitted and 
misapplied legal standards. Counsel emphasizes that the petitioner is the leaseholder of several facilities 
including a showroom and several warehouses, and not merely a "storefront" as noted by the director. 
Counsel states that the petitioner typically employs ten employees, "some of whom leave or are newly hired at 
various times, causing the director to characterize these changes as discrepancies." Counsel suggests that 
these perceived discrepancies caused the director to "summarily dismiss" the evidence submitted. 
Counsel further notes that the petitioner did submit an extensive job description in response to the request for 
evidence, and that the director erroneously dismissed the description as "vague." Finally, counsel contends 
that the director appeared to base the decision solely on the employees' job descriptions. Counsel alleges that 
"no regard has been paid to the fact that the beneficiary is in charge of an enterprise with substantial staff, 
business and facilities." Counsel concludes that it would be a "patent absurdity" for a business of the 
petitioner's magnitude to operate without anyone deemed to be a manager. 
Upon review of the record in ths matter and for the reasons discussed herein, the petitioner has not established 
that the beneficiary would be employed in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 204.5Cj)(5). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
The AAO acknowledges that the petitioner did in fact submit a fairly detailed position description in response 
to the director's request for evidence and it is not clear from the director's decision whether such description 
was fully reviewed. The petitioner provided a list of fifteen duties divided among three broad responsibilities, 
and indicated the percentage of time the beneficiary devoted to each area of responsibility. However, upon 
review, the job description fails to establish that the beneficiary's duties are primarily managerial or executive 
in nature. 
The petitioner indicates that the beneficiary devotes 15 percent of his time to "conducting market research," 
meeting wholesale customers to get feedback about products, pricing and customer services, and attending 
trade shows "to get more customers and promote our products." The petitioner has not articulated why these 
market research and promotional duties should be considered managerial or executive in nature. In addition, 
the petitioner indicates that the beneficiary spends 35 percent of his time in China to "discuss and select styles 
and colors," place orders, and make shipment schedules, and to search for and collect new material samples. 
Based on the petitioner's representations, the beneficiary is directly responsible for performing operational 
duties related to product design and procurement of inventory, and it has not been established that any lower- 
level staff would relieve the beneficiary from performing these non-qualifying duties. Overall, these 
responsibilities, which account for half of the beneficiary's time, have not been shown to be comprised of 
primarily managerial or executive duties. 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 Int 'l., 19 I&N Dec. 593, 
604 (Comm. 1988). 
The petitioner indicates that the remainder of the beneficiary's time is related to managing the petitioner's 
New York office. The petitioner highlights the beneficiary's responsibility for setting company policies and 
direction and managing human resources, duties which would typically fall under the statutory definitions of 
managerial or executive capacity. However, some of the beneficiary's stated responsibilities related to the 
management of the New York office cannot be readily classified as qualifying duties based on the evidence of 
record. For example, the petitioner indicates that the beneficiary oversees accounts with major customers, 
including discussion of products, market and customer service issues. The petitioner has not adequately 
clarified the distinction between the beneficiary's responsibility for overseeing the accounts of "major 
customers" and more routine customer sales and service tasks, and it is therefore difficult to determine 
whether this duty should be considered managerial or executive in nature. Further, the petitioner states that 
the beneficiary "oversees the research on fashion trend[s] through internet, fashion magazine, and other 
sources." The petitioner does not clarify whether the beneficiary supervises lower-level employees who 
perform these research-oriented tasks, or whether the beneficiary himself is required to research market and 
fashion trends. Based on these deficiencies, the AAO cannot determine that the beneficiary devotes a full 50 
percent of his time to performing managerial or executive duties associated with oversight of the New York 
office. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940, F.2d 1533 (Table) 
1991 WL 144470 (9th Cir. July 30, 1991). Whether the beneficiary is a managerial or executive employee 
turns on whether the petitioner has sustained its burden of providing that his duties are "primarily" managerial 
or executive. See sections 101(a)(44)(A) and (B) of the Act. The word "primarily" is defined as "at first," 
principally,' or "chiefly." Webster's II New College Dictionary 877 (2001). Where an individual is 
"principally" or "chiefly" performing the tasks necessary to produce a product or to provide a service, or other 
non-qualifying operational or administrative tasks that individual cannot also be "principally" or "chiefly" 
perform managerial or executive duties. In the instant matter, the petitioner has failed to show that non- 
qualifying duties will not constitute the majority of the beneficiary's time. 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather the 
AAO must determine based on a totality of the record whether the description of the beneficiary's duties 
represents a credible perspective of the beneficiary's role within the organizational hierarchy. Therefore, 
when examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those 
of his or her subordinate employees, the nature of the petitioner's business, the employment and remuneration 
of employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy. 
In this matter, the petitioner's description of the beneficiary's job duties does not clearly establish his 
employment in a managerial or executive capacity, and the petitioner's initial evidence, which included an 
organizational chart with incomplete job titles for its employees, was insufficient to provide a clear picture of 
the personnel structure of the U.S. company. Accordingly, the director reasonably requested additional 
evidence regarding the number of subordinate supervisors under the beneficiary's management, the job titles 
and job duties of the employees managed, and, if applicable, evidence of the petitioner's use of outside 
contractors. In response, the petitioner submitted an updated organizational chart which again failed to clearly 
identify the job titles of many of the employees. The petitioner did not address the director's request for job 
descriptions for the beneficiary's subordinates, nor acknowledge whether the petitioner utilizes any outside 
contractors. 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. 5 5 103.2(b)(8) and (12). The evidence requested by the director was critical, as the petitioner did not 
appear to have lower-level employees assigned to perform duties related to procurement, ordering and 
production coordination, and product and market research, and the beneficiary's description of the 
beneficiary's duties suggests that he directly performs these tasks. The 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). 
While counsel correctly suggests on appeal that the job descriptions of the lower-level employees cannot be 
used as the sole focus in determining the beneficiary's employment in a managerial or executive capacity, this 
argument does not excuse the petitioner from responding to the director's request. 
 The fact that the 
beneficiary manages a business, regardless of its size, does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
section 101(a)(15)(L) of the Act. 
 See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Therefore, counsel's 
argument that "the beneficiary is in charge of an enterprise with substantial staffing, business and facilities," 
is insufficient to establish the beneficiary's employment in a qualifying capacity. 
 The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Here, the actual duties performed by the beneficiary, are 
not clearly primarily managerial or executive in nature, and a meaningful review of the totality of the 
circumstances regarding the beneficiary's employment has been impeded by the petitioner's failure to provide 
requested evidence regarding its personnel structure. 
 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)). 
Although the beneficiary is not required to supervise personnel, if it is claimed that his managerial duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 5 10 1 (a)(44)(A)(ii) of the Act. 
As noted above, although requested by the director, the petitioner did not provide the job titles for all of the 
petitioner's employees, or the job descriptions for any of the beneficiary's employees. Any 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). The AAO cannot draw any conclusions regarding the employment capacity of the 
beneficiary's subordinates without this evidence. Therefore, the petitioner has not shown that the beneficiary's 
subordinate employees are supervisory, professional, or managerial, as required by section 10 1 (a)(44)(A)(ii) 
of the Act. 
Page 9 
Counsel correctly observes that a company's size alone, without talung into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 5 101(a)(44)(C) of the Act, 8 U.S.C. fj 1 101(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. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). 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. Id. 
In addition, as noted above, the petitioner must substantiate that the duties of the beneficiary and those of his 
or her subordinates correspond to their placement in an organization's structural hierarchy; artificial tiers of 
subordinate employees and inflated job titles are not probative and will not establish that an organization is 
sufficiently complex to support an executive or manager position. Here, the petitioner employed ten 
employees at the time of filing, and assigned managerial or executive job titles to four of them; however the 
AAO notes that one of the individuals identified as "vice president," and the "general management" employee 
are among the lowest-paid employees of the petitioner's workforce. The AAO also questions the petitioner's 
claim that it employs two vice presidents, but only one warehouse worker, given counsel's statement on 
appeal that the company operates "several warehouses," and considering the absence of evidence that the 
company utilizes outside contractors to perform warehousing or other duties. Further, the petitioner's 
"saleslmarketing" department appears to have been staffed by two part-time and one full-time worker as of 
the date of filing. Considering the petitioner's annual sales of $5 million, it has not been established that the 
company's sales and marketing needs could plausibly be met by these three employees. Each of the 
petitioner's remaining "departments" appears to be staffed by only one worker, notwithstanding the 
petitioner's reference to "department managers." Finally, as mentioned above, the petitioner does not have a 
purchasing or procurement department, and has in fact indicated that the beneficiary directly performs tasks 
associated with purchasing inventory. The petitioner's organizational chart alone is therefore insufficient to 
establish the beneficiary's employment in a managerial or executive capacity. 
Based on the limited evidence regarding the petitioner's personnel structure, it cannot be determined whether 
the beneficiary's subordinates would reasonably relieve him from performing non-qualifying duties associated 
with the petitioner's day-to-day operations, particularly with respect to the sales, marketing, product and 
market research and procurement functions. Regardless, the reasonable needs of the petitioner serve only as a 
factor in evaluating the lack of staff in the context of reviewing the claimed managerial or executive duties. 
The petitioner must still establish that the beneficiary is to be employed in the United States in a primarily 
managerial or executive capacity, pursuant to sections 101(a)(44)(A) or (B) of the Act. As discussed above, 
the petitioner has not established this essential element of eligibility. 
The petitioner has not submitted evidence on appeal to overcome the director's determination with respect to 
this issue. Accordingly, the appeal will be dismissed. 
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. Here, that burden has not been met. 
ORDER: The appeal is dismissed.