dismissed EB-1C Case: Wholesale/Retail

'Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
PlffiLICCOPY 
U.S. Department of Homeland Security 
U, S. Citizenship and Immigration SelVices 
Office of Administrative Appeals MS 2090 
Washington, DC 20529·2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: NOV I 6 2010 
INRE: 
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. § 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. 
The fee for a Form I-290B is currently $585, but will increase to $630 on November 23,2010. Any appeal or 
motion filed on or after November 23,2010 must be filed with the $630 fee. 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. 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 Texas corporation engaged in the import, distribution, wholesale, and retail of various 
household products. The petitioner seeks to employ the beneficiary as its president. 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 it has a qualifying relationship with the beneficiary's foreign employer; 
and 2) the petitioner failed to establish that it would employ the beneficiary in a managerial or executive 
capacity. 
On appeal, counsel disputes the first ground for denial, pointing out that the petitioner is a wholly owned 
subsidiary of a foreign entity and that the foreign entity's ownership is therefore not germane to determining 
whether the petitioner and the beneficiary'S foreign employer have a qualifying relationship. Counsel also 
disputes the second ground for denial, pointing to the beneficiary's high level of responsibilities and oversight. 
After reviewing the record, the AAO finds that the director's first basis for denial was issued in error as it was 
based on the assumption that the petitioner and the beneficiary'S foreign employer are affiliate entities. The 
petitioner's claim and supporting evidence indicate that the petitioner is wholly owned by the beneficiary'S 
foreign employer and that the latter entity's ownership is therefore not germane to the issue of a qualifying 
relationship. Accordingly, the AAO hereby withdraws the director's first ground as a basis for denial. 
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)(I)(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 
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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 AAO will now tum to the second ground for denial-the beneficiary's employment capacity in his 
proposed position with the U.S. entity. 
Section 1 01 (a)(44)(A) of the Act, 8 U.S.C. § 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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 lOl(a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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. 
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In support of the Form 1-140, the petitioner submitted a letter dated October 12,2006, which included several 
lists of the beneficiary's responsibilities as the company's president. As the director restated key portions of 
the initial job description, the AAO need to repeat this information in the current decision. 
On June 18, 2007, the director issued a request for evidence (RFE) instructing the petitioner to provide a 
depiction of its organizational hierarchy by submitting an organizational chart identifying all employees by 
name and job title and describing their respective duties. The petitioner was also asked to provide a 
comprehensive description of the beneficiary's proposed employment, including a list of his proposed day-to­
day job duties and an estimate of the percentage oftime he would allocate to each listed duty. 
The petitioner's response included an organizational chart, which illustrated the organizational hierarchy of 
two offices--one in Houston, TX and another in New York, NY-both shown as being headed by a common 
president and vice president. The Houston office is shown to include a warehouse manager, a position that 
had not been filled, and an office manager overseeing an office assistant. The New York office was shown as 
consisting of an office manager, overseeing a bookkeeper and a sales position, and a warehouse manager, 
overseeing a truck driver and an undetermined number of warehouse workers. Although the petitioner 
provided a payroll list dated July 19, 2006 naming a total of 57 employees, there was no clarification as to 
how these employees fit with the organizational chart, which did not list any employee names. 
With regard to the beneficiary's proposed employment, the petitioner provided a letter dated August 30, 2007 
in which the petitioner stated that the beneficiary would be employed in an executive and managerial 
capacity. In describing the beneficiary's executive capacity, the petitioner stated that the beneficiary would 
allocate 30% of his time directing the company's managerial staff, including the vice president, office 
managers, and the warehouse manager. He would hold meetings with these individuals either in person or via 
teleconference to discuss management and operational problems. The petitioner stated that another 30% of 
the beneficiary's time would be allocated to planning, formulating, and establishing company policies and 
objectives and ways for attaining the objectives. The petitioner stated that the creation of the New York 
office was a representation of a policy and objective. Next, the petitioner stated that the beneficiary would 
allocate 20% of the beneficiary's time to staying informed of economic changes in international trade and 
market trends, analyzing goals and making investment plans, and exploring new business opportunities with 
new products and services. The petitioner addressed the final criterion in the definition for executive capacity 
by stating that the beneficiary receives only general supervision from the board of directors. 
In describing the beneficiary's managerial capacity, the petitioner stated that 15% of the beneficiary's time 
would be allocated to overseeing and directing the company's daily operations while another 20% of his time 
would include having meetings and teleconferences to stay informed of daily activities and company 
performance. Next, the petitioner stated that the beneficiary supervises and controls the company's vice 
president and managers, instructing the managers in dispute resolution and conformance to sales contracts in 
order to remedy problems without litigation or breaches of contract. The petitioner then moved on to discuss 
the third and fourth criteria in the definition for managerial capacity, stating that the beneficiary has discretion 
over all personnel matters and daily operations, including daily company expenditures. 
In a decision dated April 16, 2009 the director denied the petition concluding that the petitioner failed to 
establish that the beneficiary would be employed in a managerial or executive capacity, noting that the job 
description offered in response to the RFE was overly vague and did not contain the requested details in terms 
of listing the beneficiary's specific daily tasks. Although the director also determined that the beneficiary's 
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responsibilities are primarily comprised of non-qualifying tasks, this statement does not comport with the 
director's first observation-that the beneficiary's job description consists of generalities that fail to denote 
actual daily job duties-which the AAO finds to be valid. Affirmatively concluding that the beneficiary 
performs non-qualifying tasks implies that the director was actually able to ascertain what specific tasks the 
beneficiary would be performing. The petitioner did not provide a comprehensive description of the 
beneficiary'S specific daily job duties. As such, the director's finding that the beneficiary would primarily 
perform non-qualifying tasks was not based on evidence in the record and is hereby withdrawn. 
Notwithstanding this flaw in the director's analysis, the director properly concluded that the petitioner's 
description of the proposed employment failed to establish that the beneficiary would be employed within a 
qualifying 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. 
§ 204.50)(5). Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient, as 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). In the present matter, 
despite the issuance of an RFE, which expressly notified the petitioner of the information that the director was 
seeking, the petitioner responded with a job description that did little more than paraphrase the statutory 
definitions for managerial and executive capacity. While the petitioner's statements indicate that the 
beneficiary meets with his staff and has discretion over personnel and general operational matters, 
discretionary authority, without an adequate description of job duties, does not establish that the primary 
portion of the beneficiary'S time would be allocated to qualifying managerial or executive tasks. 
The AAO further notes that the petitioner provided a percentage breakdown that adds up to 115% and creates 
a factual impossibility that precludes a true assessment of the beneficiary's time allocations. In addition to a 
detailed description of job duties, assigning an approximate percentage of time to each of the beneficiary'S 
proposed tasks is crucial, as this information enables U.S. Citizenship and Immigration Services (USCIS) to 
determine the proportion of time the beneficiary would spend performing qualifying tasks versus the non­
qualifying ones. While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her 
time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to hislher proposed position. 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 (Comm. 1988). Here, the petitioner failed to provide a 
percentage breakdown that could be viewed as an accurate representation of the beneficiary's time 
distribution among his various tasks and responsibilities. 
In addition, the AAO will consider the petitioner's job description in light of the petitioner's organizational 
hierarchy, the beneficiary'S position therein, and the petitioner's overall ability to relieve the beneficiary from 
having to primarily perform the daily operational tasks. A petitioner is generally able to facilitate such an 
analysis by providing an organizational chart, which would establish the beneficiary'S position with respect to 
other employees in the organization, and payroll documents, which would enable the director to gauge whom 
the petitioner employed at the time of filing the petition and whether the staffing at the time of filing was 
sufficient to relieve the beneficiary from having to primarily perform non-qualifying tasks. In the present 
matter, the petitioner failed to comply with the RFE's instructions with regard to the content of the 
organizational chart. Specifically, the petitioner failed either to name any of the individuals who occupied the 
Page 6 
noted position titles or to provide job descriptions for any position other than that of the beneficiary. In 
addition to this lack of adequate infonnation, the organizational chart attributes more than half of the 
petitioner's personnel to the New York office, which is entirely separate from the petitioner based on the 
documents showing that each entity was incorporated as a separate corporation. While these entities may 
share similar management and ownership, the fact that they were separately incorporated indicates that they 
are not two offices that are part of one entity and therefore cannot share or commingle their personnel. Any 
work perfonned by employees of the New York entity would not be considered work perfonned by 
employees of the petitioner. In light of the infonnation provided in the petitioner's organizational chart, the 
petitioner itself was outfitted with an office manager and an office assistant. While the chart indicates that the 
petitioner intends to hire a warehouse manager at some future date, eligibility must be established at the time 
of filing the petition, not at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
Moreover, as the positions of president and vice president are shown as heading both entities, it is not entirely 
clear which entity actually employs the vice president, who is shown as the beneficiary's direct subordinate 
and who would presumably assist in relieving the beneficiary from having to perfonn certain non-qualifying 
tasks. There is also a lack of clarity with regard to the amount of time the beneficiary would spend 
perfonning work for the petitioner versus the time he would spend carrying out tasks for the benefit of the 
New York company. As the Houston entity is the petitioner that would employ the beneficiary in the present 
matter, the beneficiary's job description must provide an accurate depiction of the tasks the beneficiary would 
perfonn for his proposed employer. Any tasks he would perfonn for the separate New York entity would not 
come under the heading of the beneficiary's proposed duties with the u.s. petitioner and therefore could not 
be considered for the purpose of detennining the petitioner's eligibility in the present matter. 
On appeal, counsel asserts that "the particularities of [the] beneficiary's high level responsibilities" are 
presented in the record and also refers to the beneficiary's high level of discretion and oversight. However, as 
previously explained, USCIS cannot conclude that the beneficiary would be employed within a qualifying 
managerial or executive capacity without an adequate description of the beneficiary's proposed job duties. 
The petitioner was made well aware of the need for this infonnation through the director's issuance of an 
RFE. However, the information provided failed to delineate specific tasks or to assign accurate time 
allocations as requested. The fact that an individual manages a small business does not necessarily establish 
eligibility for immigrant classification in a managerial or executive capacity within the meaning of section 
101 (a)( 44) of the Act. The record does not establish that the primary portion of the beneficiary's time would 
be primarily attributed to directing the management of the organization. Nor does the record establish that the 
beneficiary would be primarily engaged in supervising a subordinate staff of professional, managerial, or 
supervisory employees or managing an essential function. Based on the evidence furnished, it cannot be 
found that the beneficiary would be employed primarily in a qualifying managerial or executive capacity. For 
this reason, the petition may not be approved. 
Additionally, while not specifically addressed in the director's decision, the AAO finds that the petitioner 
failed to provide sufficient evidence to establish that the beneficiary meets the criteria described at 8 C.F.R. 
§ 204.5G)(3)(i)(B), which requires the petitioner to 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. Although the director specifically addressed 
this issue in the RFE by instructing the petitioner to provide a detailed description of the beneficiary's 
overseas job duties, the petitioner failed to provide the requested infonnation. As previously noted, the actual 
I • •• 
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duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. at 
1108. A failure to provide requested evidence is grounds for denial ofthe petition. 8 C.F.R. § 103.2(b)(14). 
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.