sustained EB-1C Case: Personnel Recruitment

(b)(6)
DATE: 
AUG 2 9 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immi grat ion Servi ces 
Administrative Appea ls Office (AAO) 
20 Massachu setts Ave. N.W., MS 2090 
Was hington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multination al Executive or Manager Pursuant to 
Section 203(b)(l )(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)( I )(C) 
ON BEHALF OF PETITIONER : 
INSTRUCTIONS: 
Enclosed please find the decision of the Admini strative Appeals Office (AAO) in your case. This is a 
non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-pr ecede nt decisions . 
Thank you, 
/}~. 
4 ~-/ -~~L-._ !'- Ro nberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa pet1t10n was denied by the Director, Texas Service Center. The 
petitioner subsequently filed a motion to reopen and reconsider. The director dismissed the motion and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will be 
withdrawn and the appeal will be sustained. 
The petitioner is a multinational corporation operating in the United States as a personnel recruitment agency. 
It seeks to employ the beneficiary as its Operations Director. 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. § 1153(b)(1 )(C), as a multinational executive or 
manager. 
In dismissing the petitioner's motion, the director determined that the petitioner failed to establish that: I) the 
beneficiary was employed abroad in a qualifying managerial or executive capacity; 2) the beneficiary would 
be employed in the United States in a qualifying managerial or executive capacity; and 3) the petitioner had 
been doing business for one year prior to filing the instant petition. Although the director's original decision 
included two additional grounds for denial - the petitioner's failure to establish that it had the ability to pay 
the beneficiary's proffered wage and failure to establish that its foreign affiliate continued to do business- the 
director determined that the petitioner overcame these grounds and limited the dismissal of the motion to the 
three grounds enumerated above. 
On appeal, counsel submits an appellate brief disputing each of the grounds that served as an alternate basis 
for denial. 
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 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. 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
A United States employer may file a petition on Form I-140 for classification of an alien under section 
203(b)(l )(C) of the Act as a multinational executive or manager. No labor certific ation is requir ed 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 state ment must clearly describe the duties to be performed by the alien. 
The AAO will first address the director's adverse finding with regard to the beneficiary's proposed 
employment with the U.S. entity and his prior employment abroad with the petitioner ' s foreign affiliate . 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section l0l(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, profe ssio nal, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that a "first line supervi sor is not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees superv ised are professional." Section 
10 I (a)( 44 )(A)(iv) of the Act. If a beneficiary directly supervises other employees, the beneficiary must also 
have the authority to hire and fire those employees, or recommend those actions , and take other personnel 
actions. Section 10l(a)(44)(A)(iii) of the Act. 
Additionally, the stat utory definition of the term "executiv e capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the organization , and 
that person's authority to direct the organization . Section JOI(a)(44)(B) of the Act, 8 U.S.C. 
§ ll0l(a)(44)(B). Under the stat ute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and polici es" of that organization. Inherent to the definition, the organization must have a 
subordinate level of employees for the beneficiary to direct and the beneficiary must primarily focus on the 
broad goals and policies of the organization rather than the day-to-operation s of the enterprise . An individual 
will not be deemed an executive under the statute simply because they have an exe cutive title or beca use they 
"direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exerci se "wide 
latitud e in discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of director s, or stockholders of the organization." I d. 
In general, when examining the executive or managerial capacity of the beneficiary, the AAO reviews the 
totality of the record and does not limit its review to the descriptions of the beneficiary' s respective positions. 
Therefore, while the director was correct in placing significant emphasis on the description of the 
beneficiary's employment with the U.S . and foreign entities, further analysis of other e lements is required. 
Specifically, the job descriptions should be assessed in light of the respective entities' organizational 
structures, the beneficiary's positions within eac h entity and with respect to other employees in the respective 
hierarc hies, and the job duties petformed by each entity's staff member s to determine whether the beneficiary 
would be relieved from performing primarily non-qualifying tasks. 
After reviewing all of these factors, the AAO finds that the petitioner has established that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity and that he would be employ ed in the 
Un ited States in a qualifying managerial or executive capacity . 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
Contrary to the director's finding, the petitioner's submission of evidence showing an expansion of its staff is 
not an indication that the petitioner intends to alter the facts upon which its original I-140 filing was based. 
As indicated by counsel in his brief, the new evidence, while not relevant to the issue of whether the 
petitioner was eligible at the time of filing, was merely submitted to show growth and development of the 
petitioner's organizational hierarchy, which is relevant for the purpose of showing the petitioner's ability to 
maintain its eligibility going beyond the date the petition was filed. 
As the statutory definition discusses managerial and executive capacity in the context of "primarily," the 
petitioner 
need only establish that the beneficiary devoted and will devote more than half of his time to 
qualifying duties. See sections 10l(a)(44)(A) and (B) of the Act. The petitioner has met that burden. 
Accordingly, the petitioner has established by a preponderance of the evidence that the beneficiary has been 
employed abroad and would be employed in the United States in a qualifying mamigerial or executive 
capacity. Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
The remaining issue is whether the petitioner established that it had been doing business for at least one year 
at the time the petition was filed on December 19, 2011. While the director properly noted that the petitioner 
did not provide invoices to account for each and every month of the 12-month period in question, the AAO 
finds that based on the totality of the evidence, the petitioner has met its burden of proof. Notably, the 
petitioner reported over $161,000 in gross sales in 2010 and $365,000 in sales in 2011, figures which, when 
considered with the submitted invoices and contracts, support a finding that the petitioner had been doing 
business throughout the preceding year. 
In visa petition proceedings, it is the petition~r's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013) . 
Here, that burden has been met. 
ORDER: The appeal is sustained.