remanded EB-1C Case: Wholesale Trade

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 195 53684 Office: CALIFORNIA SERVICE CENTER Date: JUN 0 2 2005 
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. 1153(b)(l)(C) 
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. 
Robert F~iemann, Director 
Administrative Appeals Office 
WAC 03 195 53684 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The matter will be remanded for 
further consideration. 
The petitioner was incorporated on January 13, 2000 in the State of California and is engaged in the import 
and wholesale of appliances, restaurant equipment, rice cookers, vacuum bottles, air pots, and other general 
merchandise. It seeks to employ the beneficiary as its presidentlgeneral manager. Accordingly, the petitioner 
endeavors to classify the beneficia~y as an employment-based immigrant pursuant to section 203(b)(l)(C) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational executive or 
manager. The director determined that the petitioner had not established that the beneficiary would be 
employed in a managerial or executive capacity. 
In his decision, the director made the following observations that lead to the denial: 
The petitioning entity does not have a reasonable need for an executive because they are a 
four-employee company and this type of business does not require or have a reasonable need 
for an executive. It is contrary to common business practice and defies standard business 
logic for such a company to have an executive, as such a business does not possess the 
organizational complexity to warrant having such an employee. 
*** 
Also, due to the type of business that the petitioner conducts, it is unreasonable to believe that 
the beneficiary as "President", [sic] with three subordinate employees, would not be assisting 
with the day[-]to[-]day non-supervisory duties. The performance of those menial tasks 
precludes the beneficiary from being considered an "executive." 
These comments are inappropriate. The director should not hold a petitioner to an undefined and unsupported 
view of "common business practice" or "standard business logic." The director should instead focus on 
applying the statute and regulations to the facts presented by the record of proceeding. Although Citizenship 
and Immigration Services (CIS) must consider the reasonable needs of the petitioning business if staffing 
levels are considered as a factor, the director must articulate some legitimate basis for finding a petitioner's 
staff or structure to be unreasonable. See section 10 I (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C). In the 
instant case the director based the denial, in large part, on the size of the petitioner's staff. Such reasoning is 
contrary to established law and fails to indicate which of the beneficiary's tasks the director perceives as 
"menial ." 
The director also concluded that the employees under the beneficiary's supervision cannot be deemed 
managers "because the.y are not managing professional employees." (Emphasis added in original). However, 
the definition of managerial capacity contained in section 101(a)(44)(A) of the Act applies to the beneficiary 
of the present petition and not to his subordillate employees. Based on the director's reasoning, no beneficiary 
would qualify as a manager if the organization's ultimate, lower tier subordinate was not a professional, 
managerial, or supervisory employee, regardless of how many layers of management lay between the 
beneficiary and the non-professional employee. According to the director, each tier of management would be 
disqualified as the first-line supervisor of non-professional staff. 
WAC 03 195 53684 
Page 3 
Second, section 10 1 (a)(44)(A)(ii) of the Act indicates that, if the beneficiary supervises and controls the work 
of other supervisory or managerial employees and is thereby not a first-line supervisor, the sponsored position 
will meet the requirements for this second element of the definition of managerial capacity. In other words, it 
is not required that the beneficiary, or any of his subordinates for that matter, manage professional employees 
in order for the beneficiary to meet the requirements of managerial capacity under the Act. In those cases 
where the beneficiary is a first-line supervisor, however, he or she can still meet the requirements of the 
second element of managerial capacity provided that "the employees supervised are professional." Section 
101(a)(44)(A) of the Act, 8 U.S.C. 3 1 10 l(a)(44)(A). In the present matter, partly due to the director's failure 
to issue a request for evidence, it is unclear from the record whether the beneficiary's subordinates are 
supervisory, managerial, or professional employees. Nevertheless, the beneficiary may not be disqualified 
based on the conclusion that he does not manage professional employees, especially where the sole basis for 
such reasoning is that the second tier of managers supervises the petitioner's non-professional employees. 
Furthermore, the director determined that "the beneficiary's subordinate employees cannot be deemed 
professionals because the position is not so complex as to require an individual with a college degree.'" 
However, the director provides no clear definition of what is deemed to be "complex," a standard that is 
undefined and unsupported by any statutes or regulations. The description of job duties and the complete 
circumstances of the proposed employment must be reviewed to determine the nature of a particular job. In 
the instant case, the director failed to request additional information in order to determine the actual job duties 
and educational requirements of the beneficiary's subordinates or the beneficiary's own specific job duties. 
After a thorough review of the record, it is concluded that the denial is deficient as it is based on the director's 
vague and unsupported definitions of the law and regulations. As the decision is void of a factual analysis of 
the evidence of record, there is no indication that the director actually considered any of the relevant 
documentation submitted in support of the initial petition. Nor did the director make an effort to obtain 
additional evidence or information upon which to draw a proper conclusion. Accordingly, the case will be 
remanded for a new decision, which shall take proper notice of the beneficiary's duties and the duties of his 
subordinates. The director may issue a notice requesting any additional evidence he deems necessary in order 
to determine the petitioner's eligibility for the benefit sought. 
ORDER: The decision of the director dated July 17, 2004 is hereby withdrawn. The matter is 
remanded for further action and consideration consistent with the above discussion 
and entry of a new decision, which, if adverse, shall be certified to the AAO for 
review.