dismissed EB-1C Case: Wine Wholesale

identifying data deleted to 
preven.t dearly unwarr~nted 
invasion of personal prtvacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: 
FEB 22 2012 
OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(1)(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, with a fee of$630. 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. 
Thank you, 
• 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 California company that is a ''wine wholesaler." It 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 the determination that the petitioner failed to establish 
that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's findings and contends that the beneficiary is in an 
executive capacity as president and he supervises six subordinate employees. Counsel also states 
that "although the Wholesalers and Sales Representatives are independent contractors and not on 
Petitioner's payroll, [the beneficiary] must continue to oversee and control their activities to 
make sure Petitioner's products are properly being itemized and transported." Counsel also 
states that the beneficiary will be responsible for performing executive functions such as 
directing the "company's sales; production and distribution of all orders; monitoring the sales 
and inventory level; supervising the funding for the Petitioner to replenish the inventory depleted 
by its sales; and in overseeing the coordination of all business matters between the U.S., Parent 
Company, and other company subsidiaries." 
Section 203(b) ofthe 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 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 
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or subsidiary ofthat 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)(1)(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 ajob 
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 petitioner submitted sufficient evidence to 
establish that it would employ the beneficiary in the United States in a qualifying managerial or 
executive capacity. 
Section 10l(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 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) ofthe 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--
Page 4 
(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. 
In support of the Form 1-140, the petitioner submitted a support letter dated June 5, 2009, in 
which it stated that the beneficiary's job responsibilities in his proposed employment with the 
petitioning entity would include the following: 
For the above reason, we require a President, [the beneficiary] herein, to continue 
to engage primarily in business development efforts, such as establishing 
management-level relationships with U.S. retail businesses (also in the Korean­
American community), establish partnership relationships with established U.S. 
distributors and wholesalers, and coordinate with our Parent Company and other 
subsidiary offices to ensure cohesive planning and to tightly manage our U.S. 
operations to ensure that our global business plans are achieved. 
In addition, the petitioner listed the beneficiary's subordinates and a brief description oftheir job 
duties. According to the support letter, the beneficiary supervised two marketing managers, one 
accountant/administrator and the wholesalers and distributors (independent contractors). The 
AAO further notes that at Part 5, Item 2 of the Form 1-140, the petitioner indicated that it had 
four employees at the time of filing. 
The petitioner also provided a job description in an attempt to establish that the beneficiary 
meets the statutory criteria. The petitioner states that 50% of the beneficiary's time will be 
allocated to "directing the overall management of the Company;" and another 25% of the time 
will be allocated to "direct our corporate strategies and controls all interoffice duties of the 
Company," and the fmal 25% of the beneficiary's time will be spent on "high-level business 
development. " 
It is noted that in examining the executive or managerial capacity of the beneficiary, the AAO 
will look first to the petitioner's description of the proposed job duties. See 8 C.F.R. § 
204.5(j)(5). The AAO will then consider this information 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. 
Page 5 
On appeal, counsel for the petitioner states that the beneficiary supervises six subordinate 
employees. Counsel contends that the petitioner should not be "penalized for the current success 
of the company." However, the AAO must review the petition based on the information 
submitted at the time of filing, and not based on the growth ofthe company throughout the years. 
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 offacts. Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). A petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
/zummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Neither the job descriptions counsel has provided nor the organizational structure of the 
petitioner at the time of filing establishes that the beneficiary would be employed in the United 
States in a qualifying managerial or executive capacity. In fact, a number of the elements 
counsel included in the most recent job description are incongruent with the petitioner's 
organizational structure at the time the petition was filed. Despite the fact that the petitioner 
claimed that it has six subordinate employees to carry out its non-qualifying tasks, the 
petitioner's Form 1-140 indicates that the petitioner had a total of four employees at the time the 
petition was filed. According to the Form 941, Employer's Quarterly Federal Tax Return for the 
second quarter of2009, the petitioner employed three individuals on June 12,2009, the day after 
the petition was filed. The salaries paid to the employees indicate that at least one of the 
employees was paid on a part-time basis. It is not clear how a single full-time subordinate 
employee and one part-time employee were capable of relieving the beneficiary from having to 
allocate the primary portion of his time to the performance of non-qualifying tasks at the time the 
Form 1-140 was filed. 
Additionally, the AAO finds that the beneficiary's job descriptions are deficient in that they fail 
to provide credible and detailed information about the actual tasks the beneficiary would have 
been performing at the time of filing. Namely, the petitioner failed to establish what specific 
tasks the beneficiary would perform in supervising business affairs or what policy decisions the 
beneficiary would make. The record is similarly lacking in specific information about the job 
duties involved in securing the growth of the petitioning entity. In the absence of some 
additional explanation, developing marketing strategy and negotiating deals must both be 
considered operational duties that cannot be classified as managerial or executive tasks. 
In addition, the petitioner is a wine wholesaler and it is not clear who is responsible for 
purchasing orders; managing the import and delivery of wholesale; managing customs 
clearances; inventory; and negotiating contracts with distributors. As mentioned above, the 
employer quarterly reports indicate that the petitioner employed a marketing manager but the 
accountant/administrator seems to be employed on a part-time basis. 
Moreover, the petitioner indicated that it has independent contractors who are wholesalers and 
sales representatives who are "responsible for selling and distributing the Company's products to 
other outlets." The petitioner· did not provide any contracts between the petitioner and the 
wholesalers. Thus, it is unclear what role the wholesalers and sales representatives play in the 
Page 6 
operations of the petitioner. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 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 AAO finds that the director was correct in concluding that the petitioner failed to provide an 
adequate description of the beneficiary's job duties. Moreover, given the lack of full-time 
personnel in the petitioner's organization at the time of filing the petition, the AAO questions 
how the petitioner would have been able to relieve the beneficiary from having to allocate the 
primary portion of his time to performing non-qualifying tasks. The petitioner's own account 
indicates that the petitioner hired additional employees after the petition was filed. The burden is 
on the petitioner to establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(1). A petition 
cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a 
new set of facts. Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Thus, even if the 
petitioner were to argue that the additional personnel relieved the beneficiary from having to 
primarily perform non-qualifying tasks, such information would be irrelevant for the purpose of 
determining the petitioner's eligibility at the time of filing the petition. 
The record as presently constituted is not persuasive in demonstrating that the beneficiary would 
be employed in a primarily managerial or executive capacity. The fact that an individual 
manages a small business does not necessarily establish eligibility for immigrant classification 
under the defmitions of managerial or executive capacity within the meaning of section 
10l(a)(44) of the Act. The record does not establish that a majority of the beneficiary's duties 
will be primarily directing the management of the organization or overseeing the organization's 
managerial, professional, or supervisory personnel. Rather, the record indicates that at the time 
of filing the petition, a preponderance of the beneficiary's duties would have been to directly 
provide the services of the business, regardless of whether such services were qualifying or not. 
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 
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). In the present matter, the evidence furnished strongly indicates 
that the beneficiary would not be employed primarily in a qualifying managerial or executive 
capacity. For this reason, the petition may not be approved. 
The record does not support a finding of eligibility based on an additional ground that was not 
previously addressed in the director's decision. First, 8 C.F.R. § 204.5(j)(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. The information provided about the beneficiary's 
employment abroad consists of general statements that fail to clearly describe the beneficiary's 
Page 7 
specific job duties. Without this information, the AAO cannot conclude that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity. 
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. Ca1. 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). Based on the 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 denia1. 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 met that burden. 
ORDER: The appeal is dismissed.