sustained EB-1C Case: Retail

(b)(6)
DATE: MAY 2 6 2015 
IN RE: Petitioner: 
Beneficiary: 
FILE#: " 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is a ski-boot retailer headquartered in , Utah. The petitioner seeks to employ the 
beneficiary as manager of operations for its European market. 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)(l)(C), as a multinational executive or 
manager. 
The director denied the petition, concluding that the evidence of record did not establish that the petitioner: 
(1) will employ the beneficiary in a qualifying managerial or executive capacity in the United States; and (2) 
had employed the beneficiary in a qualifying managerial or executive capacity abroad. 
The petitioner filed an appeal asserting that the director's decision was wrong and that the director had not 
sufficiently considered a previously filed and approved decision on the same issues. The director declined to 
treat the appeal as a motion and forwarded the appeal to us for review. On appeal, counsel submits a brief 
disputing the director's adverse findings. 
I. THELAW 
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. 
Additionally, the regulations at 8 C.F.R. § 204.5(j)(3)(i) state that the petitioner must provide the following 
evidence in support of the petition in order to establish eligibility: 
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(A) If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least 
one year in a managerial or executive capacity by a firm or corporation, or other legal 
entity, or by an affiliate or subsidiary of such a firm or corporation or other legal 
entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) The prospective United States employer has been doing business for at least 
one year. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The issues to be addressed are: (1) whether the petitioner established that the beneficiary had been employed 
abroad in a primarily managerial or executive capacity; and (2) whether the petitioner established that the 
beneficiary would be employed in the United States in a primarily 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 m 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 
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(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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, USCIS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. Section lOl(a)( 44)(C) of the Act. 
A. Facts 
The petitioner filed its Form I-140, Immigrant Petition for Alien Worker, on October 9, 2013. The petitioner 
is a "volume ski boot retailer" and "orthotic retailer." The petitioner claims to have 25 retail locations 
throughout the United States, Canada, and Europe and these retail locations have showrooms with an average 
size of 700 square feet and $3,000.00 in sales per square foot. The petitioner employs four senior level 
managers who each manage a different region of the business. The beneficiary was employed abroad as the 
European division manager overseeing six retail stores located throughout Europe. 
The petitioner states that while the beneficiary was employed abroad he reported to the petitioner's president 
as manager of its wholly owned European subsidiary, The beneficiary worked in the 
position since Oct ober 2000. As manager of the petitioner's European operations, the beneficiary was 
required to regularly travel to all European store locations and to the company's corporate headquarters 
located in , Utah approximately six times per year. 
The petitioner provided the beneficiary's detailed duty description abroad which allocated a percentage of 
time to specific tasks necessary to oversee the day-to-day operations including supervising store managers for 
seven European retail locations, hiring and firing employees, and working with corporate headquarters in the 
United States. The beneficiary oversaw growth and development of the European market and served as part 
of the company's senior management team. 
As part of the initial petition and in response to the director's request for evidence (RFE), the petitioner 
provided an organizational chart listing the beneficiary's store managers by name and documents describing 
their duties and qualifications. The petitioner provided documentation describing duties performed by 
Jower-JeveJ store employees who reported to the store managers. The petitioner provided names of 
lower-level employees and provided employee payroll information. 
The petitioner now asserts that it intends to move the beneficiary's position to the United States. The 
beneficiary will continue to perform the same duties that he performed while employed abroad but he will be 
required to be physically based in the United States so that all senior employees would be "gathered under one 
roof" and work primarily in Utah at the petitioner's corporate headquarters. The petitioner provided 
documentation with a detailed description of the beneficiary's duties allocating a percentage of time that the 
beneficiary would dedicate to qualifying managerial tasks and responsibilities. The petitioner stated that the 
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beneficiary would be required to participate in all of its senior level meetings at its corporate offices where all 
of its marketing and expansion strategies are devised and all final decisions are made. The beneficiary would 
be based in the United States allowing him to work more closely with headquarters regarding the company's 
European growth but he would be expected to travel to Europe approximately twice per month. 
The petitioner established that the beneficiary will continue to conduct ongoing performance evaluations of 
the European managers and would continue to be responsible for teaching them how to run the retail stores in 
accordance with established corporate policies and procedures. The petitioner states that the beneficiary 
would report directly to the company president and spend a majority of his time at the corporate offices when 
he was not traveling to Europe to oversee operations there. The petitioner states that the beneficiary will 
"operate at a senior level" and report to the petitioner's president. 
The petitioner established that, while employed in the United States, the beneficiary would continue to 
manage all aspects of the European Operations, including oversight of the retail stores and development of a 
new store in France. The petitioner stated that the beneficiary would supervise the continued 
development of the European market and oversee all future growth in that market. The petitioner described 
the beneficiary's duties establishing his day-to-day oversight of operations and the hiring and firing of 
personnel to staff all locations in his market. 
The director denied the petition on September 4, 2014, concluding that the petitioner did not establish that the 
beneficiary had been employed in a primarily managerial capacity abroad or would be employed in a 
primarily managerial capacity in the United States. The director acknowledged that the beneficiary had store 
managers reporting to him but found that the documentation did not establish that the store managers had 
subordinate employees to establish them as supervisors. The director concluded that the beneficiary was not a 
functional manager based on the same lack of documentation of employees to assist the beneficiary in the 
performance of functions necessary to overall management. 
On appeal, the petitioner asserts that the director erred. The petitioner referred to many individuals employed 
to work at the various retail locations and also noted the continuous rotation of seasonal workers that such an 
industry attracts. The petitioner asserts that the records contains sufficient evidence to establish that the 
beneficiary's role as the European division manager abroad and, now in the United States, qualifies as 
primarily managerial as required for approval of this petition. 
B. Analysis 
Upon review, the petitioner's assertions are persuasive. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. 
Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of 
evidence that the beneficiary is fully qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369, 
376 (AAO 2010). Here, the petitioner has submitted relevant, probative, and credible evidence that leads us 
to conclude that the beneficiary, more likely than not, was employed abroad and will be employed in the 
United States in a primarily managerial capacity. 
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The beneficiary currently manages a key subdivision or component of the petitioning company, namely its 
European subsidiary operations, has the authority to hire and fire personnel, supervises managerial or 
supervisory-level employees, and exercises discretion over the operation of six stores located throughout 
Europe. The record establishes that the beneficiary has managed and will continue to manage the petitioner's 
European operations under the supervision of the president of the U.S. company. 
The petitioner now seeks to have the beneficiary physically present in the U.S. to join the rest of the senior 
leadership at the petitioner's corporate headquarters in Utah. The petitioner is expected to attend executive 
meetings and training sessions which are essential to the performance of his managerial duties, and which will 
allow the beneficiary to contribute along with other managerial staff to the formation of company policies and 
procedures. Although the beneficiary will be permanently based in the United States, he will continue to 
oversee the European operations through regular travel and communication with the European store 
managers. 
III. CONCLUSION 
The petitioner has established by a preponderance of evidence that the beneficiary manages the petitioner's 
European division and operates at a senior level within the organization's hierarchy, and that his primary 
duties, whether he is physically present in the United States or abroad, will continue to be in a managerial 
capacity. The petitioner has also demonstrated that the executive meetings and training sessions to be 
attended by the beneficiary in the United States are integral to the beneficiary's role as manager of the 
European operations. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, the petitioner has sustained that burden. Accordingly, the director's September 4, 2014 decision is 
withdrawn. 
ORDER: The appeal is sustained. The petition is approved.