dismissed EB-1C Case: Wholesale Trade

U.S. Department of Homeland Security 
20 Mass Ave N.W., Rtn. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FGBLlC COPY 
;r, 
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Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 081 50045 
 DEC 2 3 2008 
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 1153(b)(l)(C) 
IN 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
3 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
5 103.5(a)(I)(i). 
JLL- 
PJohn F. Grissom, Acting Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The matter is now before the Administrative Appeals Office (AAO) 
on appeal. The AAO will dismiss the appeal. 
The petitioner is a New Jersey corporation and claims to be engaged in wholesale trade. It seeks 
to employ the beneficiary as its president pursuant to section 203(b)(l)(C) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. 8 1153(b)(l)(C), as a multinational executive or 
manager. The petitioner claims that it is the subsidiary of Lumian Garment Co., Ltd., located in 
the People's Republic of China. 
The director denied the petition, finding that the petitioner had failed to establish that the 
beneficiary would be employed in the United States in a primarily managerial or executive 
capacity. On appeal, counsel contends that the director disregarded, misread and misinterpreted 
the evidence submitted, and contends that the petitioner has submitted sufficient evidence to 
show that the beneficiary will be employed in a qualifying managerial andlor executive position. 
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 statement that indicates that the alien is 
Page 3 
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. tj 204.5(j)(5). 
The issue in this matter is whether the petitioner has established that the beneficiary will 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. 4 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within 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 I 101(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; 
Page 4 
(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. 
On Form 1-140, filed on December 15, 2006, the petitioner indicated that the beneficiary would 
be employed as its president and general manager, and claimed that it currently employed eight 
persons. In a letter of support dated December 5, 2006, the petitioner provided the following 
overview of the beneficiary's duties: 
Since last January of 2005, [the beneficiary] has served the duties of the President 
of the US entity with L-1A status, his employment status is qualified for the 
position of Multinational Managerial Alien Worker. As President of the US 
entity he has been the one who takes responsibility for overall administration of 
American Company, and his job duties have included organizing, supervising 
dept. managers and lower-level supervisors, making import decisions concerning 
business, personnel, management & administration, finance, etc., hiring and firing 
of company staff, examining & checking agreements & contracts and signing 
agreement & contracts, reading and listening to reports from dept. managers & 
lower-level supervisors, and writing comments, instructions upon these reports, 
analyzing financial papers and allocating funds, planning for company strategies, 
plans, schemes, and deciding company lines, etc. 
In addition, the petitioner submitted a document entitled "Breakdown," which broke down the 
duties of the beneficiary by day. Specifically, the document stated: 
Monday 
1. Listen to reports made by trade officer, check the progress the supply 
department has made, and discuss the problems in organizing, planning and 
performing, if any. (Time devoted: 4 hours) 
2. Read the financial reports (Time devoted: 2 hours) 
Tuesday 
1. Listen to reports made by officer of finance department, examine the progress 
the department has undergone, and search the points for improvements in the 
organization. (Time devoted: 5 hours, approximately) 
Page 5 
2. Study the marketing reports. (Time devoted: 3 hours) 
Wednesday 
1. Give new instructions to the officer of trade department involved in working 
out new plans and targets and the way how to organize, schedule jobs, execute 
designs and realize them, and give criticism or encouragement. (Time 
devoted: 4 hours) 
2. Check the financial policy. (Time devoted: 3 hours). 
Thursday 
1. Issue orders and instructions to the officer of Adm. Department and financial 
department as to the goals, new policies, proposed schedules and the process 
to organize and carry out the work, coming with praise or discussions. (Time 
devoted: 5 hours) 
2. Study the marketing reports and examines the marketing policies. (Time 
devoted: around 3 hours). 
Friday 
1. Study international trade materials and reports. 
 (Time devoted: about 2 
hours). 
2. Consider the foreign trade progress. (Time devoted: around 1 hour). 
3. Instructions made to the officer of trade department and finance department 
involved in foreign trade affairs according to the practical business items 
executed by the vary [sic] department. (Time devoted: 3 and half hours). 
4. Review the overall business situation and check the general principle. (Time 
devoted: 1 hour). 
The petitioner also submitted an organizational chart pertaining to the petitioning entity. The 
chart indicated that the beneficiary, as president, oversees the vice president, who in turn 
manages three managers: the international department manager, the financial department 
manager, and the marketing department manager. According to the chart, the international 
department manager oversees three clerks, the financial department manager oversees two 
accountants, and the marketing department manager oversees three saleshade persons. The 
chart did not identify the names of the employees who filled these 12 positions. As noted above, 
the petitioner indicated on Form 1-140 that it employs eight workers. 
In addition, the petitioner submitted a document entitled "Personnel Structure & Recruitment," 
which named all employees and provided a brief description of their duties. Listed on this chart 
were the following employees: 
Page 6 
Vice President & CFO (Full-time) 
Officer, Trading Department (Full-time) * 
Officer, Finance/Accounting (Full-time) 
Adm. Dept. (Full-time) * 
Specialist & Officer (Full-time) * 
Accounting (Full-time) 
Accounting (Full-time) * 
Clerk (Full-time) 
Clerk (Part-time) 
Clerk (Part-time) 
The petitioner also submitted copies of its Fonns 1-9, Employment Eligibility Verification, for 
the employees with a star (*) next to their name, above, as well as for three other persons not 
Finally, the petitioner submitted copies of its Form 941, Employer's Quarterly Federal Tax 
Return, and its New York Form NYS-45, Quarterly Combined Withholding, Wage Report and 
Unem~lovment Insurance Return, for the first. second and third auarters of 2006. For the first 
L d 
quarter of 2006, the state return indicated that the petitioner employed the beneficiary and 
The second quarter's return listed the petitioner's employees as the beneficiary, 
- The third quarter's return identified four employees, namely, the 
beneficiary, fi 
The director found the initial evidence insufficient to establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. Consequently, a 
request for evidence was issued on September 14, 2007. In the request, the director required the 
petitioner to submit evidence establishing that the beneficiary satisfied the four criteria set forth 
in the regulatory definitions of either managerial or executive capacity, or both. The director 
indicated that in support of the beneficiary's eligibility, the petitioner should include copies of 
position descriptions, job titles, and specific duties for the beneficiary and all employees 
supervised, as well as their level of authority within the organization. 
Page 7 
In a response dated October 16,2007, the petitioner addressed the director's requests. Regarding 
the beneficiary's duties, the petitioner provided the following statement: 
As the president of [the petitioner], [the beneficiary] directs the management of 
our company and makes major decisions for the company. He was also playing 
decision role to set up the goal and policy of our company. Beside the above his 
routine duty also includes: 
1. Supervising the financial affairs, including company loans, payments, salaries 
and taxes. 
2. Supervising the administration affairs, including administration affair and 
human resources including of making decision of hiring or terminating of 
company's employee. 
3. Supervising managers of different department[s]. 
4. Issue the company's check. 
5. [The beneficiary] only response to [sic]. 
The petitioner also submitted an updated breakdown of duties of the beneficiary. 
 This 
breakdown is similar to the initial breakdown submitted in support of the petition. As a result, 
the AAO has highlighted in bold type below the statements that differ from the original 
submission. 
Monday 
1. Listen to reports made by trade officer, check the progress the supply 
department has made, and discuss the problems in organizing, planning and 
performing, if any. (Time devoted: 4 hours) 
2. Read the financial reports (Time devoted: 2 hours) 
Tuesday 
1. Listen to reports made by officer of finance department, examine the progress 
the department has undergone, and search the points for improvements in the 
organization. (Time devoted: 5 hours, approximately) 
2. Study the marketing reports. (Time devoted: 3 hours) 
Wednesday 
1. Give new instructions to the officer of trade department involved in working 
out new plans, targets and ways of organization; scheduling jobs, realizing 
and executing designs, and giving criticism or encouragement. (Time 
devoted: about 4 hours) 
Page 8 
2. Contact Chinese parent company and discuss plan check schedule of all 
projects. (Time devoted: about 3 hours). 
Thursday 
1. Issue orders and instructions to the officer of the Administration Department 
and Financial Department as to the goals, new policies, proposed schedules 
and the process to organize and carry out the work, coming with praise or 
discussions. (Time devoted: 5 hours) 
2. Study the marketing reports and examines the marketing policies. (Time 
devoted: around 3 hours). 
Friday 
1. Study international trade materials and reports. 
 (Time devoted: about 2 
hours). 
2. Consider the foreign trade progress. (Time devoted: around 1 hour). 
3. Instructions made to the officer of trade department and finance department 
involved in foreign trade affairs according to the practical business items 
executed by the vary [sic] department. (Time devoted: 3.5 hours) 
4. Weekly report meeting. Review the overall business situation and check 
the general principle. (Time devoted: 1 hour). 
On February 14, 2008, the director denied the petition. The director found that absent more 
specific evidence pertaining to the beneficiary and his interaction with the petitioner's eight 
claimed employees, the director could not determine that the beneficiary would be employed in a 
primarily managerial or executive capacity. Specifically, the director faulted the petitioner for 
failing to submit an organizational chart. The director concluded that based on this lack of 
evidence, USCIS was precluded from examining the organizational hierarchy of the petitioner, 
who claimed to have four departments. 
On appeal, counsel for the petitioner submits a detailed brief in support of the petition. First, 
counsel points out that contrary to the director's findings, the petitioner did in fact submit an 
organizational chart and personnel overview with the initial petition and thus the petitioner's 
organizational hierarchy was well defined. Counsel continues by alleging that the director 
ignored and misconstrued relevant evidence, and that his findings were arbitrary and capricious. 
Finally, counsel alleges that the petitioner's staff has grown from eight to sixteen employees 
since the filing of the petition, thus evidencing the need for the beneficiary to occupy the 
managerial and executive position of president. 
Preliminarily, the AAO will address the director's comments pertaining to the organizational 
chart. It appears from a review of the file in its entirety, and a review of the director's decision, 
that the organizational chart and personnel overview identified above were overlooked by the 
Page 9 
director when reviewing the petition. The record indicates that prior to the request for evidence, 
however, the petitioner had in fact submitted these documents. The director's error is harmless 
because the AAO conducts a de novo review, evaluating the sufficiency of the evidence in the 
record according to its probative value and credibility as required by the regulation at 8 C.F.R. 
5 245a.2(d)(6). The AAO maintains plenary power to review each appeal on a de novo basis. 5 
U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers 
which it would have in making the initial decision except as it may limit the issues on notice or 
by rule."); see also, Janka v. U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). 
The AAO's de novo authority has been long recognized by the federal courts. See, e.g. Dor v. 
INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). Therefore, the director's comments with regard to 
the organizational chart and personnel structure of the petitioner are withdrawn. 
Upon review of the record, however, the AAO concurs with the director's findings. 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). The definitions of executive 
and managerial capacity each 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 prove that the beneficiary primarily perfonns these specified responsibilities and does not 
spend a majority of his or her time on day-to-day hnctions. Champion World, Inc. v. INS, 940 
F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
With the initial petition and in response to the request for evidence, the petitioner provided a 
day-to-day breakdown of the beneficiary's tasks during a typical work week. Despite the 
director's request for more definitive information in the request for evidence, the petitioner 
responded by submitting a breakdown that was virtually identical to the one submitted with the 
petition and already found to be deficient. Although the petitioner provided an overview of the 
beneficiary's duties in both the initial letter of support dated December 5, 2006, the statements 
provided in that letter are nondescript and merely paraphrase the regulatory definitions. Based 
upon the evidence submitted, it cannot be determined that the beneficiary would be primarily 
engaged in qualifying managerial and executive duties. 
Specifically, in the initial letter of support, the letter in response to the request for evidence, and 
the two breakdowns of the beneficiary's weekly duties, the description provided simply adopts 
many of the key phrases used in the statutory definitions of managerial and executive capacity. 
See sections 101(a)(44)(A) and (B) of the Act. These general statements do little to clarify the 
exact nature of the beneficiary's duties. Conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
Page 10 
detailed description of the beneficiary's daily job duties. For example, the petitioner claims that 
some of the beneficiary's duties include "making import[ant] decisions concerning business, 
personnel, management & administration, finance, etc.," "examining & checking agreements & 
contracts and signing agreement[s] & contracts," and "analyzing financial papers and allocating 
hds." These tasks are nonspecific and fail to specifically highlight the nature of the 
beneficiary's position in the company. Despite providing a day-to-day breakdown of tasks, the 
petitioner has 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. Suva, 724 F. Supp. at 11 08. 
On appeal, counsel for the petitioner contends that the director's failure to consider the 
organizational chart and personnel structure of the petitioner prejudiced the petitioner and 
beneficiary, and claims that a review of the evidence submitted prior to adjudication shows that 
the petitioner has the organizational complexity to employ the beneficiary in a primarily 
managerial or executive position. The AAO disagrees. 
The brief and vague overview of the beneficiary's role in the company, coupled with the 
unresolved issues surrounding the beneficiary's subordinate staff, precludes a determination that 
the beneficiary is relieved fi-om responsibility for many of the day-to-day functions essential to 
the petitioner's business. While the AAO acknowledges that the director's failure to consider the 
organizational chart clearly impacted his denial of the petition, his ultimate conclusion was not 
erroneous. 
The petitioner claims on Form 1-140 to employ 8 persons. According to the organizational chart 
provided, which provides only position titles and no information regarding the employees who 
filled these positions, the beneficiary will supervise twelve positions, namely, the vice-president, 
three department managers, three clerks, two accountants, and three sales persons. However, the 
petitioner has failed to submit evidence establishing that these persons were actually employed 
by the petitioner at the time of filing. 
The most recent evidence contained in the record are the petitioner's Forms 941 and NYS-45 for 
the quarter ending September 30, 2006. In that report, the petitioner claimed to employ the 
beneficiary and only three other persons: Le Chen, Accounting; Catherine Ding, Clerk; and 
Huiping Wu, Officer, Trading Department. The AAO notes that there is no position identified as 
"Officer, Trading Department" on the organizational chart submitted. 
Therefore, despite the petitioner's contentions, it appears that the beneficiary only had three 
people working under him at the time of filing. There is no evidence that the petitioner 
employed any sales or marketing persons to assist in the petitioner's wholesale business or attend 
trade shows, and no administrative employees are identified, such as those who would provide 
secretarial services, answer phones, and perform general office tasks. The petitioner's claim that 
Page 11 
it employed eight persons at the time of filing is not supported by documentary evidence. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Mutter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Mutter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The AAO notes that .the record contains seven Forms 1-9 were submitted as evidence of the 
petitioner's staff. These forms, however, must be accompanied by other evidence to show that 
these employees have commenced work activities. Forms 1-9 verify, at best, that a business has 
made an effort to ascertain whether particular individuals are authorized to work; they do not 
verify that those individuals have actually begun working. See Matter of Ho, 22 I&N Dec. 206, 
212 (Assoc. Comm. 1998). In the absence of such evidence as pay stubs and payroll records, the 
petitioner has not established that the petitioner employs a subordinate staff that would relieve 
the beneficiary from performing non-qualifying duties.' 
While performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify the beneficiary as long as those tasks are not the majority of the 
beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary is 
"primarily" performing managerial or executive duties. Section 101(a)(44) of the Act. Whether 
the beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial. 
In this matter, the AAO would normally look to the organizational structure of the petitioner to 
examine the duties of subordinate staff members in relation to the beneficiary. In this matter, 
however, the organizational hierarchy has not been clearly established in that the positions 
identified on the organizational chart do not correspond with the position titles of the people 
identified on the personnel structure. Moreover, the claimed organizational hierarchy is not fully 
staffed as contended by the petitioner; therefore, duties attributed to the beneficiary which 
involve interaction with the vice president and other managers cannot be verified since there is 
no evidence that the petitioner employs such persons. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
As stated in the statute, the beneficiary must be primarily performing duties that are managerial 
or executive. See sections 101(a)(44)(A) and (B) of the Act. Furthermore, the petitioner bears 
the burden of documenting what portion of the beneficiary's duties will be managerial or 
executive and what proportion will be non-managerial or non-executive. Republic of Transkei v. 
INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Although the petitioner provided an hourly breakdown 
of the petitioner's duties, most of these percentages included interaction by the beneficiary with 
1 
 The AAO notes that only one of these persons, Hui Ping Wu, appears on the petitioner7s 
quarterly wage reports. 
Page 12 
staff members not employed by the petitioner at the time of filing. Given the lack of clear and 
concise evidence, coupled with the unresolved inconsistencies regarding staffing as noted above, 
the record does not demonstrate that the beneficiary will fbnction primarily as a manager and/or 
executive. 
On appeal, counsel contends that the petitioner's business is prosperous and is expanding, and 
that its staff has grown to sixteen people. This contention, however, does not overcome the basis 
for the denial. Furthermore, a petitioner must establish eligibility at the time of filing; a petition 
cannot be approved 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). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 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. 5 1361. Here, that burden has not 
been met. 
ORDER: The appeal is dismissed.