sustained EB-1C Case: Sales And Marketing

(b)(6)
DATE: MAR 1 4. 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinatimml 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: 
.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. 
Thank you, 
• 
. ... .., 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
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DISCUSSION: The preference visa petition was denied by the pirector, Texas Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be sustained. · · 
The petitioner is aNew York limited liability company, and it seeks to employ the beneficiary as 
its sales and marketing manager. Accordingly, the · petitioner endeavors to classify the 
beneficiary as an employment-based inimigrant 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 on December 28, 2011, determining the following grounds of 
ineligibility:. (1) 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; (2) the 
petitioner failed to establish the existence ofa qualifying relationship; and, (3) the petitioner 
failed to establish that the petitioner is doing business. · 
On appea~ counsel disputes the director's findings and provides an· appellate brieflaying out the 
grounds for challenging the denial. 
Section 203(b) ofthe Act states in pertinent part: 
(1) Priority Workers. -- Visas shall frrst 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. -- Ari alien is 
described in this subparagraph i.f 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. 
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A United States employer may file a petition on Form I-140 for classification of an· alien under 
section 203{b)(1)(C) ofthe 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. 
In examinirig 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. § 204.5(j)(5). · Published case law 
clearly supports the pivotal role of a clearly defined job description, as the actual duties 
themselves reveal the true nature of the employnient. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), ajj'd, 905 F.2d 41· (2d: Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). 
USCIS reviews the totality of the record, which includes not only the beneficiary's job 
description, but also takes into accourtt the nature of the petitioner's business, the employment 
and remuneration of employees, as well as the job descriptions of the beneficiary's subordinates 
and any other facts contributing to a complete understanding of a beneficiary's actual role within 
a given entity. 
Upon review of the record, the AAO withdraws the director's. decision and sustains the appeal. The. 
director noted in the decision thafthe petitioner failed to submit sufficient evidence to establish 
that the beneficiary would be employed iri. the United States in a qualifying managerial or 
executive capacity. However; the petitioner provided a detailed job description of the job duties 
performed by the beneficiary with the petitioner, and provided detailed job. descriptions of the 
subordinates supervised by the beneficiary. 
· Furthermore, the petitioner has established that the petitioner has a qualifying relationship with 
the beneficiary's foreign employer. To establish a "qualifying relationship" under the Act and 
the regulations, the petitioner must show· that the beneficiary's foreign employer and the 
proposed U.S. employer are the same employer (i.e. a U.S. entity with.a foreign office) or related 
as a "parent and subsidiary" or as "affiliates." See generally§ 203(b)(l)(C) ofthe Act, 8 U.S.C. 
§ 1153(b)(1)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliaten 
and "subsidiary"). The petitioner provided stock certificates, tax records, articles of organization 
and an operating agreement, and certificates of incorporation to indicate that the foreign 
employer is a subsidiary of the petitioner. 
I 
Finally, the petitioner has established that the petitioner is actually doing business in the United 
States. The regulation at 8 C.F.R. § 204.5(j)(2) states that doing business means "the regular, 
systematic, and continuous provision of goods arid/or services by a firm, corporation,. or other entity 
and does not include the mere presence .of an. agent or office." The petitioner provided Form 1120, 
U.S. Corporation Income Tax Return, for 2007 and 2008 indicating a gross sales of over $57 
million dollars; Forms 941, and Quarterly Wage Reports indicating that the petitioner employs 1 0 
individuals. Thus, the AAO will also withdraw this p<)rtion of the director's decision. 
'_J 
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In visa petition proceedings, the burden of proVing eligibility for the benefit sought. remains 
entirely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. .Here, that burden has been 
met. Accordingly, the appeal will be sustained. 
ORDER: The appeal is sustained.