dismissed EB-1C Case: Wholesale Trade

U.S. Departmenl of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
'\ Wash~ngton, DC 20529 
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U.S. Citizenship 
and Immigration 
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, Office: CALIFORNIA SERVICE CENTER Date: 
i rm 2 2006 
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PE~TION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
l' Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(C) 
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. ON BEHALF OF PETITIONER: -, . - 
INSTRUCTIONS: 
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This is the decision of thejidministrative 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. - 
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Robert P. Wiemann, Director 
Administrative Appeals Office P 
DISCUSSION: The Director, California Service Center, initially approved the employment-based petition. 
Upon subsequent review, the director issued a notice of intent to revoke approval and ultimately revoked 
approval of the petition. The petitioner submitted an appeal to the,*dministrative Appeals Office (AAO) and 
the MO affirmed the director's decision. The petitioner subseiuently submitted a motion to reopen and 
reconsider that was rejected by the AAO as untimely filed. Based on the evidence submitted the MO will 
set aside its decision rejecting the motion and will consider th;-motion dated March 20, 2004. Counsel's 
motion will be dismissed. 
The petitioner is a corporation organized in the state of California inDecember 1998. It imports, exports, and 
wholesales general merchandise. It seeks to employ the beneficiary as its president. Accordingly, the 
petitioner endeavors to classify the beneficiary as an emplop-ent-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(C), as a multinational 
executive or manager. 
The petition was filed May 22, 2000 and was approved on September 12, 2000. Upon further review of the 
record and evidence submitted in conjunction with~the beneficiary's Form 1-485, Application to Register 
Permanent Resident or Adjust Status, the director issued a notice of intent to revoke approval on January 21, 
2003. The director ultimately revoked approval on March 6, 2003, determining, among other things, that the 
petitioner had not established that the beneficiary would be employed in a managerial .or executive capacity 
for the U.S. petitioner. The AAO affirmed the director's decision on this issue on February 20, 2004. The 
petitioner submitted a motion to reopen and reconsider the AAO's decision. The mo~jon"was dated March 20, 
2004 but was date-stamped as received on March 3 1,2004, more than 40 days after'the AAO had rendered its 
decision. On February 7, 2005, the AAO rejected the motion as untimely filed, however, based on the 
evidence received, the AAO will set aside its rejectiod decision and will consider counsel's March 20, 2004 
motion to reopen and reconsider. 
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On motion, counsel for the petitionei'asserts that the petitioner is submitting additional evidence and \' -.,.,. - ,;,*,.:..a- 7 
arguments that establish the beneficiary s~el.igibility for this visa classification.jn an executive and managerial 
capacity. Counsel indicates that-the new evidence consists of: (1) an expert opinion letter from Richard W. -... .=,* ,,.<. .,:: ..& 
Sapp, Ph.D., Associate Dean for Academic Affairs and Director of.Internati~h~1-Programs at Portland State 
University who finds, that the president of the petitioner has bee_n..an-executive in every sense of the word .?is.;;-, *. since the petitioner's inception; (2) additional payroll+.~.re.c.o~ds,and other evidence which shows that the 
petitioner has a stable payment schedule to the beneficiary, thus corroborating its organizational structure; (3) 
a new letter from the petitioner; and, (4) a new letter from the Chairman of the Board of petitioner's parent 
company. 
Counsel clarifies the beneficiary's start date oj employment for the petitioner and argues that the petitioner's 
payroll records substantiate the petitioner's'~organizational~structure. Counsel contends that the AAO should 
accord some probative value to an expert--who opines that: it is common business practice for small 
companies to have an executive; importl<~port activities in a small company are sufficiently complex to 
warrant an executive; the petitioner is justi$gd'in,-designating its senior employ;e as an executive; and, the 
petitioner's presidential position is truly an executive position. Counsel asserts that the AAO improperly 
focused on the beneficiary's marketing qe~p&n~~jJjties and participation in designing the petitioner's computer 
system to the exclusion of the other clearly described executive and managerial duties performed by the 
beneficiary as described in the record. Counsel notes that the petitioner's new March 18, 2004 letter 
submitted on motion shows that the petitioner has increased its goals and its staff as well as providing 
examples of decisions the beneficiary has made in the last six months. Counsel concludes that: "the record, as 
now constituted, establishes that the beneficiary is employed by the petitioner in an executive capacity." 
The regulation at 8 C.F.R. § 103.5(a)(2) states in pertinent part: "A motion to reopen must state the new facts to 
be provided in the reopened proceeding and be supported by affidaiits or other documentary evidence." Based 
on the plain meaning of "new," a newfact is found tobe evidence that was not available and could not have been 
discovered or presented in the previous proceeding. Furthermore, the regulation at 8 C.F.R. § 103.5(a)(2) states, 
in pertinent part: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect application 
of law or [Citizenship and Immigration Service (CIS)] policy. A motion to reconsider a decision 
on an application or petition must, when filed, also establish that the decision was incorrect 
based on the evidence of record at the time,of the initial decision. 
The evidence submitted on motion canno; be considered new evidence nor are the assertions of counsel supported 
by pertinent precedent decisions establishing that the MO's decision was based on an incorrect application of 
law or policy. Accordingly, the motion kill be dismissed. 
For clarifling purposes only, MO will address several of counsel's concerns, however of note, motions for the 
reopening of immigration proceedings are +favored for the same reasons as are petitions for rehearing and 
motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 -U.S. 314, 323 
(1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seelung to reopen a proceeding bears a "heavy burden." 
INS v. Abudu, 485 U.S. at 110. In this matter as stated above, the petitioner has not provided new evidence and 
has not provided pertinent precedent decisions that would establish the MO's decision was based on an incorrect 
application of law or policy. 
The MO acknowledges that its reference to the petitioner's unusual payroll structure has been clarified 
somewhat by counsel's information regardigg the beneficiary's actual start date for the petitioner. However, 
the petitioner's failure to establish the beneficiary's eligibility for this visa classification rests not only on the 
petitioner's organizational structure but the descriptions of the beneficiary's and her subordinate employees' 
duties, as well as the failure to provide a clear understanding of the beneficiary's actual role in the business. 
When examining the executive or managerial capacity of the beneficiary, the MO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 9 204.56)(5). 
Counsel argues on motion that the MO improperly focused on the beneficiary's marketing responsibilities 
and participation in designing the petitioner's computer system to the exclusion of the other clearly described 
executive and managerial duties performed by the beneficiary as described in the record. However, the 
description of the beneficiary's duties in the record, for the most part, contained a generic description 
paraphrasing elements of the definitions of managerial or executive capacity. . As counsel references on 
motion, the record on appeal contained the following description of the beneficiary's duties: 
The beneficiary is in charge of the day-to-day operations of the company. She is also charged 
with the development and implementation of general policies and systems concerning 
operations, finance and personnel management. The beneficiary is also charged with 
reporting to and interfacing with the parent company. The percentage of time spent in each 
area varies on a daily basis depending on current needs. The beneficiary's experience with 
the parent company in marketing, product and client development are the key factors in 
equipping her for the present position. 
The beneficiary will be employed in the capacity of President in the U.S. entity in charge of 
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J the day-to-day operation and management of the company. To be more specific, the 
beneficiary will perform the following duties: formulate and enforce general policies, develop 
and implement operational, financial, and personnel management system, recruit, train, 
direct, and supervise employees, set up company business objective and business plan, direct 
and coordinate different departments' activities, report company's progress and financial 
position to the parent company on regular basis. 
As a President, the beneficiary will exercise discretionary authority over company's financial 
matters such as budget, operational cost, fund management, etc. She will also be vested with 
power to handle personnel matters such as hiring and firing, evaluation, promotion, etc. The 
beneficiary will be chief executive officer of the company stationed in the U.S., accountable 
only to the board of directors of U.S. and the parent company. 
In his [sic] position of President, [the beneficiary] will has [sic] wide latitude and 
. - discretionary decision-making authority in determining the most advantageous courses of 
action to take throughout the upcoming period of company expansion and development. 
In addition, the beneficiary will engage in the following activities designed to strength [sic] 
the competitiveness of the petitioner: 
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A. Directs the management of the marketing department of the U.S. entity. Has authority to 
hire, fire, promotion, [sic] leave authorization and other personnel actions. 
B. Establish the goals and policies of the marketing department, report to and communicate 
with the parent company; and coordinate with the parent company to attain goals of 
parent company. 
C. Exercise wide latitude in discretionary decision-making. 
D. Receive only general ---. supervision or direction from president and board of directors. 
E. Participate in the plan[n]ing and designing of computer system to tailor the needs of the 
U.S. ifitity. 
F. Plan and design in-house training regarding knowledge of the products and services[.] 
G. Plan new ways of operation regarding quality control and sales methods. 
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H. Plan the expansion of the market. 
In the above description, the petitioner paraphrases section 101(a)(44)(A)(iv) of the Act, three times; 
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paraphrases or quotes section 101(a)(44)(A)(iii) of the Acf three times; paraphrases or quotes section 
10 1 (a)(44)(B)(ii) of the Act three' times; paraphrases or qu0te.s section 10 1 (a)(44)(B)(iii) of the Act three 
times; and or quotes section 101(a)(44)(B)(iv) of the Act twice. In addition, the petitioner refers 
to the beneficiary's responsibility to report to the parent companji on three different occasions. Although the 
petitioner's description of the beneficiary's duties is lengthy,. it is also repetitive and does little to convey an 
understanding of the beneficiary's daily duties. 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). Moreover, a beneficiary-may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner chooses to 
represent the beneficiary as both an executive and a m-Cnager, it must establish that the beneficiary meets each 
of the four criteria set forth in the statutory definition for executive and the statutory definition for manager. 
The limited amount of information that is outside a generic description of the beneficiary's duties relates to 
the beneficiary's "direct[ion] of the management of the marketing department;" "establish[ing] the ,goals and 
polices of the marketing depaftment;" "participat[ion] in the plan[n]ing and designing of computer system to 
tailor the needs of the UiS. entity;" "plan[ning] and design[ing] in-house training.regarding knowledge of the 
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products and services;" "plan[ning] new ways of operations regarding quality control and sales methods;" and 
"plan[ning] the expansion of the market." As the AAO referenced in its previous decision, the petitioner has 
not indicated that it has a marketing department nor has it indipated it employs individuals who carry out 
marketing duties, thus the reasonable conclusion is that the beneficiary will be performing the petitioner's 
marketing services. Marketing duties are not typically understooa to comprise managerial or executive duties. 
and an employee who primarily performs the tasks necessary to produce a product or to provide services is. 
not considered to be employed in a managerial or executive capacity. Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). In addition, the petitioner did not specify, clarify, or 
otherwise explain who in its organization or outside parties ;would plan and design the petitioner's computer 
system. Going on record without supporting documentary;evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of SO&, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 19b (Reg. Comm. 1972)). Further, the beneficiary's I. tasks, such as designing in-house:.Faining, planning opef-at~ons regarding quality control and sales methods, 
and planning the expansion of the market, do not fall directly under traditional qualifying duties or are too 
nebulous to be identified as primarily a managerial or executive function. 
The record before the director and the AAO did not coniain a comprehensive description of the beneficiary's 
duties resulting in the appropriate determination that tfie petitioner had not provided sufficient evidence to 
establish that the beneficiary's actual duties would comprise primarily managerial or executive duties. The 
petitioner failed to answer a critical question in this case: What does the beneficiary primarily do on a daily 
basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. at 1 108. 
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The petitioner's March 18,2004 letter submitted on motion does not address the beneficiary's duties when the 
petition was filed, but instead provides information ,regarding the beneficiary's decision-making in the six 
months prior to filing the motion. As the MO previously observed, a petitioner must establish eligibility at 
the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a 
new set of facts. Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Counsel's submission of an advisory opinion does not assist in determining that the beneficiary in this matter will 
perform primarily managerial or executive duties for the petitioner. Counsel's expert in this matter provides a 
conclusory opinion and does not address the deficiencies in the record regarding the petitioner's description of the 
beneficiary's daily duties. The AAO may, in its discretion, use advisory opinion statements submitted as expert 
testimony. However, where an opinion is not in accord with other information or is in any way questionable, the 
AAO is not required to accept or may gve less weight to that evidence. Matter of Caron International, 19 I&N 
Dec. 791 (Cornrn. 1988). In this matter the statement provided by Doctor fichard W. Sapp does not provide new 
evidence and is not sufficient to establish the beneficiary's claimed managerial or executive capacity. Likewise, 
the letter submitted by the petitioner's parent company does not address the deficiencies in the record regarding 
the description of the beneficiary's duties. 
Counsel's claim that: "the record, as now constituted, establishes that the beneficiary is employed by the petitioner 
in an executive capacity" is not persuasive. First, as initially stated, the petitioner has not provided new evidence 
or pertinent precedent decisions establishing that the MO's decision was based on an incorrect application of law 
or policy; thus the motion does not meet the requirements for a motion to reopen or reconsider. Second, although 
the MO could have better explained the deficiencies of the beneficiary's position description, the record 
submitted on appeal did not support a conclusion that the beneficiary's duties would comprise primarily 
managerial or executive duties. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has not sustained that burden. 8 C.F.R. 5 103.5(a)(4) states that "[a] motion that does not meet 
applicable requirements shall be dismissed." Accordingly, the motion will be dismissed, the proceedings will not 
be reopened, and the previous decisions of the director and the MO will not be disturbed. 
ORDER: The motion is dismissed.