dismissed EB-1C Case: Wholesale And Retail Sales

(b)(6)
DATE: 
· NOV 21 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department .of Homei!Jnd Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
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 ~rsuant to 
Section 203(b)(l)(C) of the Irtmiigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case: 
This is a non~precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through norhprecedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion 
to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 
days of the date of this decision.. Please .-eview the Form I~290B instructions at 
http:/lwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See 
also 8 C.F.R. § 103.5. Do not file a ptotion clirectly with the AAO. 
Tba,nk you, 
. Lh/ 
f-RonR~ 
Chief, Administrative Appeals Office 
· www.uscis.gov 
(b)(6)
\ 
Page2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petition~r is a New York corporation engaged in wholesale and retail sales that seeks to employ 
the beneficiary as its general manager. Accordingly, the petitioner endeavors to classify the 
beneficiary as art employment-based inunigrant pursuant to section 203(b)(l)(C) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
On June 18, 2013, the director denied the petition concluding that the petitioner failed to establish 
that the beneficiary's proposed employment would be Within a qualifying managerial or exec;utive 
capacity. 
On appeal, counsel disputes the director's findings artd provides an appellate brief laying out the 
grounds for challenging the denial. Counsel contends that the beneficiary manages an essential 
function of the petitioning company. 
I. THELAW 
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 ~lassification and admission into the' 
United Statesunder 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 
ma.n~J.gers 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 certificat.ion is 
requited for this classification. The prospective employer in the United St~tes must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
(b)(6)
Page3 
in a managerial or executive capacity. Such a statement must cleariy describe the duties to be 
perforn1ed by the alien. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides:_ 
, The term "managerial capacity" means an assignment within ~ organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, fu.nction, 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 a.re d,irectly supervised,, bas 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 prof~ssional. · 
Section 10l(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 i.n Which the 
employee ptimaril y---
(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. 
(b)(6)
Page4 
II. THE ISSUE ON APPEAL 
The sole issue addressed by thedirector is whether the petitioner established that it will employ the 
be11eficiary in a qualifying manageril}l or executive capacity .. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotl!l role of a clearly defined job descrjption, as the actu.al 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), aff'd, 905 F.2d 41 (2d, Cir. 1990); see also 8 C.P.R. § 204.5(j)(5). In addition, US.CIS 
reviews the totality of the record, which includes not only the beneficiary's job description, but also 
. the nature of the petitioner's business, the employment and remuneration of employees, as well as the 
job descriptions or the beneficiary's subordinates, if any, and any other facts contributing to a 
compl~te u!lderstap.ding of a beneficiary's actual role within a given entity. 
The definitions of executive and managerial capacity have two parts. First, the peti~ioner must show 
that the beneficiary performs the high-level responsibilities that are specified in the defi.nitiOJ).s. 
Second,. t4e petitioner must prove that the beneficiary primarily perfottils these specified 
responsibilities and do.es not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 15:33 ('fable), 1991 WL 144470 (9th Cir. July 30, 1991). 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a manageriaJ or executive capacity. 
At the time of filing; the petitioner provided a general description of the beneficiary's responsibilities 
along with an estimate of the number of hours he would allocate to each broad area of responsibility 
on a weekly b,asis. bue to the overly general information, the AAO is unl!ble to gain a meaningful 
understanding of how much time the beneficiary will spend performing qualifying tasks versus those 
that would.be deemed non-qualifying. For instance, the petitioner indicated that the beneficiary will 
spend twelve to fourteen hours per week iri ·''developing sales and marketing policies including 
pricing and product. selection based on input received from the supervisors an<i staff." IIl addition, the 
btmeficiary will spend four to six hours to "review artd assess information systems, public relations 
and advertising needs, and to approve updated and modifications." However, the organizational chart 
did not identify any employees who actually produce the advertising and promotion programs; thus, 
indicating that the beneficiary may have been the one to carry out these operational functions, which 
are clearly outside the parameters of what would be deemed as being within a managerial ot 
executive capacity. 
The beneficiary's sole subordinate within the petitioning company' is a sales and service tepteseiltative 
Who earns $12,000 per year. The petitioner stated that this employee ''communicates directly with 
customers and potential· customers, provides information on prices alld products available, adv.ises on 
delivery schedules, places and tracks orders with suppliers and coordinates fulfillment of orders to 
customers, thus performing the basic sales, service and fulfillment functio11s in the company." 
(b)(6)
Page 5 
( .. 
The petitioner indicated th<!t the beneficiary will spend ten to twelve hours per week engaged in the 
"review, planning and approval of arrangements and contracts for purchases and supply and shipping, 
insurance and customs services for the diamond and jewelry trade, to establish and maintain proper 
and efficient business operations." Preparing contr(!cts and handling aspects of shipping and customs 
for the company ate ilon~qualifying duties. Since these duties were not listed in the subordinate 
- .. - . - - . . {\ . -· 
employee's job duties, it appears that the beneficiary is the sole employee in charge of the above 
dQ(ies. 
The petitioner also stated that the beneficiary allocates eight to ten hours per week to ''review of 
financial, budget; credit and collection information and reports from our ac:;:cquQtapts, cmd establ_isbi.ng 
credit policies and determining financial needs and strategies of the vatiou:s businesses." As the 
petitioner, which had .over $3.5 million in sales in 2012, does not employ any subordinate staff 
responsible for finance or accounting matters, and it did not provide · evidence tb.<1t it employs 
acc<;>u.ntants, it appears tbat the beneficiary is the ~ole employee handling the company's day.,to-day 
financial operations such as invoices, budgets, and bookkeeping. 
finally, the beuefici::try will spend. si;~t. hours a week to prepare "personnel performance reviews, 
compensation and benefits decisions." ·Mote . specifically, a review of the petitioner's personnel 
structure indicates that the petitioner may not have the necessary human resources to relieve tbe 
beneficiary from having to ' primarily carry out its non-qualifying tc;l.sk.~. While the AAO 
acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executiVe-level tas.ks, the petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to his proposed position . . An employee who "primarily" perfonn~ 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) ofthe Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties}; see also 
Matter of Church Scientology b:zternqtional, 19 I&N Dec. at 604. In the present matter, the petitioner 
ha~ failed to e~tablish that at the time of filing the petition it was able to employ the beneficiary in a 
q!lalifyiilg capacity. · 
In a 
request for ev:~qence (RFE), the director a~vised the petitioner th;:tt the job <;lesctiptiori provided at 
the time of fUiug wa.s vague and did not provide sufficient inforrilation regarding the beneficiary's 
actual day,.to.,.day..duties. The director requested a definitive description of the, beneficiary's position, 
including all specific daily duties· and the percentage of time he would allocate to each tas.k. In 
response, the petitioner re-submitted the same duty description tbat had already been reviewed by the 
director and fo11nd to be insufficient to establish tbe beneficiary's eligibility for the benefit sought. 
Any failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for 
denying the petition. 8 C.P.R.§ 103.2(b)(14). · · · 
. The petitioner also stated that it is the sole shareholder of two other enterprises wh.ich operate a 
convenience store and ~ Subway franchise, respectively. The petit.ioner explained that the 
beneficiary will oversee the two subsidiary companies· and supervise seven additional employees. 
However, the petitioner must still establish that it can support the beneficiary in a qualifying 
managerial or executive Ci,ipacity. The petitioner operates a wholesale diamond business with over 
(b)(6)
Page6 
$3.5 million iii sales and only oiie subordinate employee. As discussed, the petitioner has not 
provided a duty description sufficient to establish that the beneficiary performs primarily managerial 
or ex~c11tive duties, ~d the record does not establish that the his sole subordinate relieves the 
beneficiary from performing operational and administrative tasks associated ·with the petitioner's 
diamond trading business. 
Evert if the AAO considered the beneficiary's supervision of subordinate employees in the subsi<iiary 
companies, the general information provided regarding the beneficiary's ·duties suggests that he 
allocates the majority of his time to the petitioner's bu.siness, and not to the oversight of the retail 
stores. The petitioner has not provided the beneficiary's speeific duties performed with respect to the 
Subway franchise or convenience store. · Moreover, the record does not support a fi11ding that the 
subsidiary companies employ full-time managers, The convenience store paid only $28,600 in wages 
in 2012 .• while the compa,ny operating the Subway franchise paid $46,800. The petitioner has not 
explained how retail business.es which are open for seven days per week are able to operate with only 
thtee to four employees. Further, the evidence shows that two of the fou.r employees of the Subway 
earn less than $8,000 per yea.r, while all three employees ofthe convenience store. earn no more than 
$10,000. Tbe evidence m11st substantiate that the duties of the beneficiary and 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 a,nd will not e.stablish that an organization is 
Sl1fficfently complex to s11pport an executive or· manager position. An individual whose primary 
duties ate those of a first-line supervisor will not be considered to be acting in a managerial capacity 
merely by virtue of his or her supervisory duties unless the employees superVised are professional. 
Section 10l(a)(44)(A)(iv) of the Act. 
,. 
In the present matter, the totality of the record does not Sl!pport a conclusion that the beneficiary's 
claimed subordinates in the subsidiary compafl.ies are superVisors, managers, or professionals. 
lpstead, the record indicates that subordinates . perfotril the aetual day-to-day tasks of operatio,g a retail 
store and a Subway shop. The petitioner has not provided evide11ce of an organizational structure 
sufficient to elevate the beneficiary to a supervisory position that is higher than a first-line supervisor· 
of non-professional employees. Pll;rsuant to section 101(a)(44)(A)(iv) of the Act, the beneficiary's 
position does not ql!alify as primarily managerial under the statutory definitions. 
Finally, the AAO acknowledges counsel's contention on appeal that the beneficiary's position is an 
essential function within the petitioner's orga11ization. The tetrtl "function manager'' applles 
generally when a beneficiary does not supervise or control the work of a subordinate staffbut instead 
is primarily responsible for managing an "essential function'' within the organiz.ation. See section 
101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential fliiictiort" is not 
defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the 
essential nature of the function, and establish the proportion of the beneficiary's daily dl!ties attributed 
to managiilg the essential function. See 8 C.F.R. § 204.50)(5). In addition, the . petitioner's 
description of Ute beneficiary's daily duties must demonstrate that the beneficiary manages the 
fu.nction rather than performs the duties related to the function. An employee who "primarily'' 
(b)(6)
Page7 
· performs the t<l.sks 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 enunierated managerial or executive duties); see 
also Matt{!r of Church Scientology Int'l., 19 I&NDec. 593, 604 (Comm'r 1988). 
In this matter, the petitioner has not provided evidence that the beneficiary ·manages an essential 
function.. As noted ·above, the petitioner· provided a brief and vague job description that did not 
articulate how the beneficiary is managing an essential function. In the RFE, tbe director provided 
the petitioner with an opportunity to "specify what essential function within the organization" the 
beneficiary will manage, if applicable, and the petitioner's response did not include acla1m that the 
beneficiary manages an essential function. Only on appeal did counsel for the petitioner claim that 
the beneficiary manages an essential fllilction by managing the "business enterprise as a whole 
inc:luding the subsidiaries." As noted above, the beneficiary's job description does not establish that 
the benefici().fy is pri:rn~ily performing in a. managerial capacity. 
Beyond the· required description of the job duties, US CIS reviews the totality of the record when 
examining tbe daimed. managerial or executive capacity of a beneficiary, incl1.1ding the petit_ioner's 
organizational .structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and 
any other factors that will contribute to a complete understanding of a beneficiary's 
· actual duties and role in a business. In the c().se of a function manager, where no subordinates are 
directly supervised, these other factors may include the beneficiary's position within the 
organizational hierarchy, the depth of the petitioner's operations, the indirect supervision of 
employees with_in the scope of the fimction managed, and the value of the budgets, products, or 
services that the beneficiary rnanages. 
As disct~,ssed above, the petitioner has not identified sufficient employees within the petitioner's 
organization who would relieve the beneficiary from performing routine duties inherent to operating 
the petitioner's diamond trading business. Further, the record does not establish that the claimed 
subsidiary companies are adequately staffed. The fact that the beneficiary h().s been given a 
managerial job title and general oversight authority over the business is insuJficiei1t to elevate his 
position to that of a "function man<1ger" as contemplated by the governing statute and regulations. 
The petitioner has not established that the beneficiary's duties ate primarily managerial in nature, and 
/ thus he cannot be considered a "function manager." 
Other tban stating that the proposed position will be responsible for managing an unidentified 
essential function, counsel provides no explanation or evidence in sUpport of his claim that the. 
beneficiary would qualify as a function manager pursuant to section 101(a)(44)(A)(ii) of the Act. The 
unsupported statements of counsel on appeal or in a motior{ are not evidence and thus are not entitled 
to any evidentiary wejght. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
A company's size alone, without taking into account the reasonable needs of the org(ll1ization; may 
not be the determining factor in denying a visa to a multinational manager or executive. See § 
(b)(6)
Page 8 
101(a)(44)(C) of the Act, 8 U.S.C. § 110l(a)(44)(C). However, it is appropriate for USCIS 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 apd continuous manner. See, e.g. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systroriics Cotp. v. INS, 153 F. Supp. 2d 7, 15 (D.D;C. 2001). The size of a company may be 
especially relevant when USCIS notes discrepancies in the record and fails to believe that the facts 
~sserted are true. See Systronics, 153 F. Supp. 2d at 15, 
Based on the petitioner's representations, it does not appear that the reasonable needs of the 
petitioning company might plausibly be met by the services of the beneficiary as general manager and 
one subordinate employee. Regardless, the reas.onable 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 execut!ve capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. 
As discussed above, the petitioner has not eStablished this essential element of eligibility. 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity and based 
on this finding, the instant petition cannot be approved. 
III. CONCLUSION 
The appeal will be dismissed for the 
above stated reasons, with each coQsidered as an independent 
and alternate basis for the decision. fu visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 lJ.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.