dismissed EB-1C Case: Wholesale Trade

u.s.Citizenship
and Immigration
Services
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rrn. 3000
Washington, DC 20529
PUBLICcopy
FILE:
SRC 06 13451227
Office: TEXAS SERVICE CENTER Date:FEB 0 1 2008
INRE:
PETITION:
Petitioner:
Beneficiary:
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.
2
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~be .'~. iemann, 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 Florida corporation claiming to operate as a wholesale merchant operation. It seeks to
employ the beneficiary as its managing director. 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)(l)(C), as a multinational executive or manager. The director
determined that the petitioner failed to establish that it would employ the beneficiary in a managerial or
executive capacity and denied the petition.
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments.
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 beneficiary would primarily perform qualifying
managerial or executive job duties during his proposed employment with the U.S. petitioner.
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 III which the
employee primarily--
Page 3
(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 ifno 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. § 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 organi:zation.
In support of the Form I-140, the petitioner submitted a letter dated March 20, 2006, which contained the
following description of the beneficiary's proposed u.S. employment:
[The beneficiary] will primarily continue to manage [the petitioner]'s operations, and critical
components thereof .... [He] will continue to supervise the work of [the petitioner)'s other
professional employees, while also managing [its] essential functions. As [m]anaging
[d]irector, [the beneficiary] will continue to have full authority to hire and fire [the
petitioner]'s employees, and to make those recommendations he may deem prudent regarding
human resource matters. [He] will continue to function at [the petitioner]'s most senior
managerial and executive level.
Accordingly, [the beneficiary] will continue to exercise discretion over [the petitioner]'s day­
to-day operations by directing and managing [its] major divisions and activities. . .. As
such, he will continue to establish [the petitioner]'s financial objectives, and continue to
develop and incorporate [its] operational policies and business goals. To achieve these goals,
[the beneficiary] will continue to exercise wide latitude in discretionary decision-making,
thereby receiving only general supervision, at most, from [the petitioner]'s board of directors.
The petitioner also provided a statement dated March 20, 2006 in which the petitioner's operations
administrator asserted that the beneficiary would be employed as a manager and an executive. The letter
contained the following additional infonnation:
[The beneficiary's] position . . . is executive and managerial in nature, with the following
primary duties and responsibilities: managing the organization in the United States on a
long-tenn basis in accordance with directives received from the company's board of directors.
The [m]anaging [d]irector function is a senior level position within [the petitioner]'s hierarchy
and with regard to the functions that [the beneficiary] will manage on a pennanent basis such
as: financial, investments, marketing, leasing, developments, and major purchases within the
organization. [The beneficiary] will also oversee all the investments of the American
corporation and other financial and managerial related functions. [He] will manage and
oversee the work of [the petitioner]'s other managerial and supervisory personnel, and will
have the authority to recommend the hiring and firing, promotions or leave authorizations of
the staff, and will exercise discretion over the day-to-day operations.
On October 11, 2006, the director issued a request for additional evidence (RFE) instructing the petitioner to
provide its organizational chart with the names, job titles, and specific job duties of the beneficiary and the
employees he would manage.
In response, the petitioner provided an organizational chart showing the board of directors at the top of the
hierarchy and the beneficiary at the next level, directly below the board of directors. The three positions
listed as the beneficiary's subordinates are a logistics manager, a sales manager, and an attorney. The chart
also indicates that the petitioner will hire sales people on a contract basis and that it will use independent
carriers and freight forwarders. The petitioner also provided the following undated description of the
beneficiary's proposed employment:
[The beneficiary] will primarily continue to manage [the petitioner]'s operations, and critical
components thereof, on a pennanent basis. [He] will continue to supervise the work of [the
petitioner]'s other professional employees, while also managing [the petitioner]'s essential
functions. [The beneficiary] will continue to have full authority to hire and fire [the
petitioner]'s employees, and to make those recommendations he may deem prudent regarding
human resource matters. [He] will continue to function at [the petitioner]'s most senior
managerial and executive level.
Accordingly, [the beneficiary] will continue to exercise discretion over [the petitioner]'s day­
to-day operations by directing and managing [the petitioner]'s major divisions and activities
on a pennanent basis. As such, he will continue to establish [the petitioner]'s financial
objectives, and continue to develop and incorporate [the petitioner]'s operational policies and
business goals. To achieve these goals, [the beneficiary) win continue to exercise wide
latitude in discretionary decision-making ....
Page 5
As to specifics, in the area of human resources management, [the beneficiary] exercises
authority in regard to hiring, firing, training, delegation of assignments according to
capabilities, preferences and technical goals, discipline, promotions, and remuneration. He
conducts performance reviews and ensures that his staff followed corporate procedures.
Furthermore, [the beneficiary] is responsible for managing and directing all development
activities of the corporations as they pertain to our national and international operations. [The
beneficiary] routinely meets with managers and employees to ensure that our corporate
philosophy is understood and is being delivered accurately. He represents the unique
concerns and requirements of our operations and provides significant contributions in the
formulation of strategic product plans to ensure that the business and strategic policies are
effectively incorporated into our business activities.
[The beneficiary] also establishes and promotes the standardization of services and operations
based upon our corporate model. He meets regularly with mangers and employees to review
current policies and procedures and develop appropriate plans necessary to ensure
consistency of development practice in accordance with corporate standards. [The
beneficiary] enhances the level of direct development expertise available in all our markets.
He formulates strategies and plans to improve the communication between the U.S. based
company and our foreign affiliate, to establish and promote standardization in the delivery of
our goods and services.
In [s]hort, [the beneficiary] has autonomous control over, and exercises wide latitude and
discretionary decision-making in, establishing the most advantageous courses of action for
the successful management and direction of our national and international development
activities.
On April 24, 2007, the director denied the petition concluding that the evidence and information submitted by
the petitioner fails to establish that the beneficiary would be employed in a qualifying managerial or executive
capacity. The director noted that the petitioner failed to provide descriptions of job duties for the beneficiary's
subordinates, even though this information was specifically requested in the RFE. The director further noted
that the petitioner has failed to establish that it is sufficiently staffed in order to relieve the beneficiary from
having to primarily perform non-qualifying tasks.
On appeal, counsel maintains the claim that the beneficiary would be employed in a qualifying managerial
and executive capacity. It is noted, therefore, that when a petitioner chooses to represent the beneficiary as
both an executive and a manager, it must establish that the beneficiary meets each of the four criteria set forth
in the respective statutory definitions of both capacities. See sections 101(a)(44)(A) and (B) of the Act.
While there is some overlap in the individual components of these terms, they are not synonymous. In the
present matter, the petitioner repeatedly refers to the beneficiary's employment capacity as both executive and
managerial, but fails to exhibit an overall understanding of the fact that these terms are not interchangeable.
While counsel seemingly attempts to distinguish between a manager and an executive by specifically
expanding on the beneficiary's executive capacity, he offers no information to explain which portion of the
beneficiary's proposed employment falls within the statutory definition of managerial capacity.
Regardless, the AAO finds counsel's arguments lacking in a more critical area. Namely, counsel fails to
supplement the deficient job description provided by the petitioner. As properly noted by the director, in
examining the executive or managerial capacity of the beneficiary, Citizenship and Immigration Services
(CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5G)(5). In the instant
matter, the petitioner repeatedly offers general statements that cover broad areas of responsibility, but fail to
precisely define any specific duties to be performed by the petitioner. It is noted that specifics are clearly an
important indication of whether a beneficiary's duties are primarily executive or managerial in nature;
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co.,
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). While the petitioner
generally indicates that the beneficiary's discretionary auth6rity fits part of the definitions of managerial and
executive capacity, these definitions are meant to serve only as guidelines to be applied to a specific list of
duties. The actual duties themselves reveal the true nature of the emplOYment.Fedin Bros. Co., Ltd. v. Sava,
724 F. Supp. at 1108. Where, as in the instant case, the petitioner fails to name specific duties to be
performed by the beneficiary, a determination cannot be made with regard to the beneficiary's prospective
employment capacity. For example, the petitioner stated that the beneficiary would manage the various
components of the organization. However, the petitioner failed to explain the specific tasks the beneficiary
would perform on a daily basis in connection with managing the company's finances and major purchases.
Although the petitioner also stated that the beneficiary would manage the company's investments and
developments, no information was offered to explain the types of investments and developments referenced.
Additionally, while the petitioner also stated that the beneficiary would manage the marketing, it provided no
explanation as to who would actually perform this key function and the non-qualifying tasks associated with
it. On appeal, counsel merely repeats portions of the petitioner's statements adding no further information to
the broad language already on record.
Counsel also introduces the professional OpInIOn of who supported the
petitioner's claim in a letter dated June 15, 2007, finding that the beneficiary would be employed as an executive
or manager "based upon generally accepted management principles."l However, despite any expertis~
may pos~erstanding generally accepted management principles, no evidence has been provided to
establish_s expertise in immigration law and specifically sections 101(a)(44)(A) and (B) of the Act,
which discuss the relevant statutory definitions of managerial and executive capacity, respectively. In fact,
repeated joint references to the terms manager or executive further suggests an overall lack of
understanding of the distinctions between the two statutory definitions.
Lastly, several references are made by counsel and by the petitioner to the beneficiary's personnel
management responsibility. However, based on the claimed organizational hierarchy in place at the time the
. Form 1-140 was filed and in light of the insufficient documentation submitted thereafter, it appears that only a
small portion of the beneficiary's time would be attributed to managing personnel. 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)). While the existence or lack of personnel alone does not
dispose of the issue in the present matter, the fact that the petitioner's sales-based entity appears to be entirely
lacking in a sales staff gives rise to doubt as to whether the petitioner requires and is able to sustain the
beneficiary in a primarily managerial or executive 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
I Discussed at pages 1-3 or_letter.
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 Scientol~gy
International, 19 I&N Dec. 593, 604 (Comm. 1988). In the present matter, the petitioner has failed to explain
and provide. evidence to establish that someone other than the beneficiary would perform the non-qualifying
tasks associated with its essential functions. While a portion of the beneficiary's time may indeed be devoted
to qualifying managerial or executive level tasks, the evidence of record strongly suggests that the majority of
the beneficiary's time would be spent performing the non-qualifying tasks that are necessary for the
petitioner's daily operation. As such, the AAO cannot conclude that the beneficiary would primarily perform
managerial or executive duties.
Furthermore, the record does not support a finding of ~ligibility based on additional grounds that were not
previously addressed in the director's decision.
First, 8 C.F.R. § 204.5G)(3)(i)(B) 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. In the instant matter, the description
of job duties initially provided lacked the necessary information to enable the director to determine whether
the beneficiary was employed abroad in a qualifying capacity. The director specifically addressed this
deficiency in the RFE by instructing the petitioner to provide the foreign entity's organizational chart
accompanied by the names, job titles, and specific job duties of the beneficiary and his direct subordinates.
While'the petitioner provided the requested organizational chart with the names and job titles of the foreign
entity's employees, this information was not accompanied by the requested description ofjob duties. As such,
the AAO cannot conclude that the beneficiary was employed abroad in a qualifying managerial or executive
capacity.
Second, 8 C.F.R. § 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying
relationship with the beneficiary's foreign employer. In the present matter, the petitioner claims to be an
affiliate of the foreign entity, which is described as a sole proprietorship owned by the beneficiary. Although
the petitioner claims that it too is wholly owned by the beneficiary, the only documentation submitted to
support that claim is a single photocopied stock certificate showing that 100 shares of the petitioner's stock '
were issued to the beneficiary. As the petitioner has not provided documentation establishing the amount of
stock it is authorized to issue, the AAO cannot conclude that the beneficiary is the petitioner's sole owner. As
previously stated, going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
Third, 8 C.F.R. § 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing business for
at least one year prior to filing the Form 1-140. The regulation at 8 C.P.R. § 204.5(j)(2) states that doing
business means "the regular, systematic, and continuous provision of goods and/or services by a firm,
corporation, or other entity and does not include the mere presence of an agent or office." The petitioner's
submission of tax documentation and bank statements does not establish "the regular, systematic, and
continuous" wholesale of merchandise, which is the claimed nature of the petitioner's business. While the
petitioner was able to provide purchase and/or sales receipts showing that the foreign entity was conducting
business, similar documentation was not provided to show continuous business transactions conducted by the
U.S. entity. As such, the petition cannot be approved for this additional reason.
Page 8
Fourth, the documentation submitted to show the foreign entity's business transactions predates the filing of the
Form 1-140. In light of the beneficiary's sole ownership of the foreign entity and his current absence from his
foreign employment, the fact that the petitioner has not provided documentation showing the foreign entity
continuing to engage in "the regular, systematic, and continuous" provision of goods and/or services, the AAO
cannot conclude that the foreign entity is currently doing business. It follows, therefore, that the AAO cannot
conclude that the petitioner is a multinational entity that conducts business in two or more countries, one of
which is the United States, via an affiliate or subsidiary. See 8 C.F.R. § 204.50)(2).
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 Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this
petition cannot be approved.
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683.
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.