dismissed EB-1C Case: Window Treatments

DATE: DEC 19 2012 
INRE: Petitioner: 
Beneficiary : 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. CitiLenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Innnigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § I I 53(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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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 that is engaged in "window treatments," and 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)(l)(C) of the Immigration and Nationality 
Act (the Act), 8 U.S.c. § llS3(b)(1 )(C), as a multinational executive or manager. 
On July 8, 2011, the director denied the petition concluding that the petitioner failed to establish that 
the beneficiary'S proposed employment with the U.S. entity would be within a qualifYing managerial 
or executive capacity. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. 
Section 203(b) ofthe Act states in pertinent part: 
(I) 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 I 
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 issue that will be addressed in this proceeding calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the petitioner submitted 
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sufficient evidence to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section I 01 (a)(44)(A) of the Act, 8 U.S.c. § IIOI(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 ofthe 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 ofthe 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 IOI(a)(44)(B) of the Act, 8 U.S.c. § I 101 (a)(44)(B), provides: 
The tenn "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 ofthe 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 ofthe organization. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5U)(5). Published case law clearly 
supports the pivotal role of a clearly defmed job description, as the actual duties themselves reveal the 
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true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 11 03, 1108 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.50)(5). That being said, however, 
USCIS reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the petitioner's business, the employment and remuneration 
of employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the beneficiary performs the high-level responsibilities that are specified in the defmitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30,1991). 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a 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. § 214.2(l)(3)(ii). The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneticiary and indicate whether such duties are either in 
an executive or managerial capacity. Id. 
Due to the overly general and vague list of job duties, the AAO is unable to gain a meaningful 
understanding of how much time the beneficiary will spend performing qualifying tasks versus those 
that would be deemed non-qualifying. 
For instance, in describing the beneficiary's position in the United States, the petitioner stated that the 
beneficiary will spend 50 percent of his time "devising and implementing Business expansion." The 
petitioner explained that the beneficiary "discusses his vision and proposed projected path to achieve 
said goals and then gives the respective manager the responsibility to perform the ground work and 
report back to him with the viability and progress thereof" It is unclear which specific tasks actually 
fall within this broad category and whether the supervisory tasks the beneficiary will perform are of a 
qualifying nature. The record is similarly lacking in specific information about the job duties 
involved in securing the growth of the petitioning entity. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soifici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
The job description also includes several non-qualifying duties such as "sets forth the marketing 
campaign for each quarter." In addition, the beneficiary "meets with vendors to discuss new market 
opportunities," and "negotiates with the vendors the pricing structure offered to [the petitioner] and 
he negotiates aggressively to ensure the best opportunity for the company to promote its economic 
viability." The petitioner does not provide evidence that the petitioner employs individuals to assist 
with the marketing programs and it appears that the beneficiary will have to participate in 
negotiations, contracts and purchasing operations. Thus, it appears that the beneficiary is performing 
the duties inherent in operating a business such as sales, marketing, finances and inventory. An 
employee who "primarily" performs the tasks necessary to produce a product or provide a service is 
not considered to be "primarily" employed in a managerial or executive capacity. See sections 
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I 01 (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). 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifYing tasks the 
beneficiary would perform are only incidental to his 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 10I(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). 
In the present matter, the petitioner has failed to establish that at the time of filing the petition it was 
able to employ the beneficiary in a qualifYing capacity. 
The petitioner also provided an organizational chart which indicated the beneficiary as CEO who 
supervises the sales manager and human resource marketing manager. The Sales manager supervises 
the sales and installation employee and the sales representative and supervisor of subcontractors who 
in turn supervises three subcontractor installers. The Human Resource and Marketing Manager 
supervises the individual responsible for outside sales and developing business with designers. 
Although the petitioner provided an organizational chart, the petitioner did not provide a description 
of the duties perfonned by each subordinate employee. Thus, it is not clear that the duties performed 
by the subordinates would relieve the beneficiary from perfonning non-qualifYing duties. 
In addition, the petitioner submitted the quarterly wage report for the first quarter of 2011 which 
indicated that the petitioner employed five employees rather than the nine employees listed on the 
organizational chart. Even if some of the employees listed on the organizational chart are 
subcontractors, the petitioner failed to establish this relationship with a contract or a copy of Fonn 
1099 for these individuals. Thus, without evidence of sales representatives hired by the petitioner, it 
is possible that the beneficiary and other employees would be responsible for sales and marketing 
operations rather than fulfilling the duties of their current positions as listed on the organizational 
chart. 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. 582, 591-92 (BIA 1988). 
As discussed above, the petitioner has not identified employees within the petitioner's organization, 
subordinate to the beneficiary, who would relieve the beneficiary from perfonning routine duties 
inherent to operating the business such as finding vendors and finalizing contracts with vendors. 
On appeal, counsel stated that the beneficiary "manages an essential function." The tenn "function 
manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10I(a)(44)(A)(ii) of the Act, 8 V.S.c. § II 01 (a)(44)(A)(ii). The tenn 
"essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
is managing an essential function, the petitioner must furnish a written job offer that clearly describes 
the duties to be perfonned in managing the essential function, i. e. identifY the function with 
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specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). 
In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the 
beneficiary manages the function rather than performs the duties related to the function. 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. Boyang, Ltd. v. I.NS., 67 F.3d 
305 (Table), 1995 WL 576839 (9th Cir, I 995)(citing Matter o.fChurch Scientology International, 19 
I&N Dec. at 604. The petitioner has not provided evidence that the beneficiary manages an essential 
function. As noted above, the petitioner provided a brief and vague job description that did not 
discuss how the beneficiary is managing an essential function. Only on appeal did counsel for the 
petitioner claim that the beneficiary is managing an essential function. As noted above, the 
beneficiary's job description does not establish that the beneficiary is primarily performing in a 
managerial capacity. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's 
actual duties and role in a business. 
As discussed above, the petitioner has not adequately identified employees within the petitioner's 
organization, subordinate to the beneficiary, who would relieve the beneficiary from performing 
routine duties inherent to operating the business. The fact that the beneficiary has been given a 
managerial job title and general oversight authority over the business is insufficient to elevate his 
position to that of a "function manager" as contemplated by the governing statute and regulations. As 
discussed above, the petitioner has not established that the beneficiary's duties are primarily 
managerial in nature, and thus he cannot be considered a "function manager." 
Other than stating that the proposed position will be responsible for managing an essential function, 
counsel provides no explanation or evidence in support of his claim that the beneficiary would qualify 
as a function manager pursuant to section 10l(a)(44)(A)(ii) of the Act. The unsupported statements 
of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183,188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503 (BIA 1980). 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
would be employed in the United States in a qualitying managerial or executive capacity. Therefore, 
the instant petition cannot be approved. 
Beyond the decision of the director, the petitioner did not sufficiently establish that the beneficiary 
was employed abroad in a qualitying managerial or executive position for at least one out ofthe three 
years prior to his entry to the United States as a nonimmigrant to work for the same employer. The 
information provided about the beneficiary's employment abroad consists of general statements that 
fail to clearly delineate the beneficiary's specific job duties. Without this relevant and crucial 
information, the AAO cannot conclude that the beneficiary was employed abroad in a qualitying 
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managerial or executive capacity. 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), afrd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
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 Sollane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004)(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. 
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.