sustained EB-1C Case: Spirits Import/Export

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
O!ce ofAdmlnzstratzve Appeals MS 2090 
Washington, DC 20529-2090 
icvasiDn of Ccs~:~i ;: ri-:acY 
 U. S. Citizenship 
pm~Hc copy and Immigration 
File: Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 162 51756 
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. fj 1 153(b)(l)(C) 
IN 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. 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: 
 The employment-based immigrant visa petition was denied by the Nebraska 
Service Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be sustained. The AAO will withdraw the decision of the director and approve 
the petition. 
The petitioner was formed in the State of Delaware in 2005l and claims to be engaged in the 
manufacture and import of premium Russian vodka and spirits. It seeks to employ the 
beneficiary as its vice president of marketing 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 petitioner claims to be the affiliate of SV Company, Ltd., located in 
Kiev, Ukraine. 
The director denied the petition, determining that (1) the petitioner had not been doing business 
for the previous year as required; (2) the beneficiary was not employed abroad in a primarily 
managerial or executive capacity; and (3) the beneficiary will not be employed in a primarily 
managerial or executive capacity in the United States. 
On appeal, counsel for the petitioner submits a brief and additional evidence. 
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 
The AAO notes that the petitioner was originally formed under the name "Medoff Company 
(USA), LLC, on July 13, 2005. On February 28, 2006, the petitioner filed a Certificate of 
Amendment to the Certificate of Formation, which changed the company's name to that 
currently used by the petitioner. 
or subsidiary of that 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)(l)(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 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. 
The first issue in this matter is whether the petitioner has been doing business as required by the 
regulations for the previous year. The regulation at 8 C.F.R. tj 204.5(j)(2) defines the term 
"doing business" as "the regular, systematic, and continuous provision of goods and/or services by 
a firm, corporation, or other entity and does not include the mere presence of an agent or office." 
Moreover, the regulation at 8 C.F.R. tj 204.5(j)(3)(i)(D) provides that a petition should include 
evidence that: 
The prospective employer in the United States has been doing business for at least 
one year. 
In this matter, the petitioner claims that it is engaged in the manufacture and import of premium 
Russian vodka and spirits. The director denied the petition, finding that the petitioner had failed 
to satisfy the regulatory requirements for doing business. Specifically, the director concluded 
that based on the evidence submitted, the petitioner was merely an agent. 
The petitioner in this matter was filed on May 16,2007. Therefore, according to the regulations, 
the petitioner was required to submit evidence that it had been doing business as contemplated 
by the regulations from May 16,2006 to May 16,2007. 
In a letter of support dated May 10, 2007, the petitioner indicated that it was in the process of 
securing all necessary U.S. federal and individual state regulatory licenses to import vodka into 
the United States. The petitioner claimed that this was a "lengthy process," and until such 
licenses were obtained, it had designated a company called MHW, Ltd. ("MHW"), based in 
Manhasset, New York, to perform the duties of an importer of SV Supreme vodka ("SV 
Supreme"). The petitioner claimed that this was a common practice for most foreign importers 
and exporters of spirits, and claimed that it had imported over 50,000 bottles of SV Supreme into 
the United States via MHW. The petitioner submitted two invoices from MHW, dated August 4, 
2006, September 29, 2006, and February 5, 2007, billing the petitioner for services such as 
freight and storage charges, as well as additional importer shipping documents, listing MHW as 
the ultimate consignee, from August to November 2006. A letter from the petitioner dated 
February 6, 2007 to the Federal and State Beverage Alcohol Regulators of the United States of 
America, claiming that MHW is authorized to use the petitioner's trade name and import SV 
Supreme into the United States until the necessary licenses are obtained by the petitioner, was 
also submitted. 
In a request for evidence dated July 3, 2007, the director requested evidence from the petitioner 
to show that it met the regulatory requirements for doing business, and was not merely acting as 
an agent. In addition, it specifically requested a copy of the petitioner's signed 2005 federal tax 
return, as well as a copy of the 2006 return, if available. In a response dated September 10, 
2007, counsel for the petitioner claimed that the petitioner and its nine employees and twenty 
outside contractors are currently engaged in market research and analysis in order to ensure that 
its products are strategically placed in U.S. markets. In support of the contention that the 
petitioner is doing business, counsel submits copies of various invoices for sales and marketing 
activities, including press releases, and examples of the petitioner's marketing, advertising, and 
press release efforts. Moreover, it includes a copy of its importer permit issued by the Alcohol 
and Tobacco Tax and Trade Bureau on July 27, 2007, and claims that as a result of its 
procurement of this license, the petitioner is now able to legally import alcoholic beverages 
without the need for MHW as an intermediary. Finally, counsel contended that the petitioner's 
signed tax returns were not yet available. 
The director denied the petition on February 6, 2008, finding that the petitioner had failed to 
satisfy the regulatory requirements for doing business. Specifically, the director concluded that 
based on the evidence submitted, the petitioner was merely an agent. 
On appeal, counsel contends that the director failed to properly analyze the evidence, and 
contends that as a result, the director reached an erroneous conclusion. Specifically, counsel 
contends that the petitioner provided ample evidence that it was doing business during the 
required period, such as copies of wire transfers evidencing the transfer of funds from the parent 
company to the petitioner, and a lease agreement showing the acquisition of a business premises. 
Further, counsel contends that the evidence of the petitioner's sales and marketing activities, as 
well as evidence that it was in the process of producing necessary licenses, was sufficient to 
establish the petitioner was doing business as required. 
On review of the evidence submitted and counsel's assertions on appeal, the AAO finds that the 
petitioner demonstrated that it had been doing business for the year prior to the filing of the 
petition. Accordingly, the director's decision with regard to this issue will be withdrawn. 
In the course of examining whether a petitioning company has been doing business as an import 
and export firm, it is reasonable to request that the company produce copies of documents that 
are required in the daily operation of the enterprise due to routine regulatory oversight. Upon the 
importation of goods into the United States, the Customs Form 7501, Entry Summary, serves to 
classify the goods under the Harmonized Tariff Schedules of the United States and to ascertain 
customs duties and taxes. The Customs Form 301, Customs Bond, serves to secure the payment 
of import duties and taxes upon entry of the goods into the United States. According to 19 
C.F.R. 4 144.12, the Customs Form 7501 shall show the value, classification, and rate of duty for 
the imported goods as approved by the port director at the time the entry summary is filed. The 
Page 5 
regulation at 19 C.F.R. 5 144.13 states that the Customs Form 301 will be filed in the amount 
required by the port director to support the entry documentation. Although customs brokers or 
agents are frequently utilized in the import process, the ultimate consignee should have access to 
these forms since they are liable for all import duties and taxes. Any company that is doing 
business through the regular, systematic, and continuous provision of goods through importation 
may reasonably be expected to submit copies of these forms to show that they are doing business 
as an import firm. 
In this matter, however, the petitioner explicitly claims in its initial letter of support that it was in 
the process of securing all necessary U.S. federal and individual state regulatory licenses to 
import vodka into the United States, and further stated that it had designated MHW to perform 
the duties of an importer of SV Supreme until its licenses were obtained. As discussed above, 
the petitioner has submitted no documentation to demonstrate that it has been conducting import 
services, although it does provide copies of some invoices from MHW. 
On appeal, counsel contends that ample documentation was submitted to demonstrate the 
petitioner was doing business, such as invoices for its sales and marketing research. Upon 
review of this extensive documentation, the AAO concurs with counsel's contentions. These 
documents establish that in the previous year, the petitioner has expended millions of dollars in 
sales and marketing in order to launch its target brand in U.S. markets. While the AAO 
recognizes that these actions do not coincide with their claimed title of "importer," the promotion 
of a product through sales and marketing on such a large scale negates the director's finding that 
the petitioner is merely an agent or a shell company. Based on the nature of the expenditures of 
the petitioner during the previous year, along with evidence that the necessary licenses have 
since been obtained, the AAO is satisfied that the petitioner has been doing business as 
contemplated by the regulations. Accordingly, the director's decision with regard to this issue 
will be withdrawn. 
The second and third issues in this matter; namely, whether the petitioner has established that the 
beneficiary was employed abroad and will be employed in a managerial or executive capacity for 
the United States entity, are closely related in terms of analysis. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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 hnction 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 professionai. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. fj 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in 
which the employee primarily 
(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. 
The AAO will first address the beneficiary's employment abroad. 
In a letter of support dated May 10, 2007, the petitioner claimed that the beneficiary was 
employed by Soyuz Victan Company Limited from January 2004 to April 2007 in the position of 
Export Marketing Director. 
The petitioner stated that the beneficiary's duties included the following: 
Defined strategy for and developed, executed and managed 
comprehensive marketing plans for the export activities of the company 
encompassing integrated marketing initiatives designed to penetrate and 
grow more than 20 targeted export vodka markets. 
Directed all activities with agencies, importers, distributors, management, 
internal departments, and vendors to execute overall export marketing 
efforts in accordance with corporate goals. 
Created, planned and carried out international market research and 
analysis. 
Directed all product development activities[.] 
Organized, led and directed forward-thinking marketing team[.] 
Prepared, managed and directed $14M marketing budget for markets: 
USA, Israel, Germany, UK and China. 
The petitioner claimed that the beneficiary's marketing strategy drove up export sales of the 
petitioner's product by 150%, and that he increased the number of export markets from seven to 
twelve in one year. 
The petitioner also provided an organizational chart for the foreign entity, which indicated that 
the beneficiary, as head of the Export Marketing Department, directly oversaw two marketing 
managers and one PR and exhibitions manager. The chart indicates that the beneficiary reported 
to the foreign entity's vice president. 
In the request for evidence dated July 3, 2007, the director requested additional information 
pertaining to the beneficiary's duties abroad, as well as the percentage of time he devoted to 
these duties. Additionally, the director specifically requested a more detailed organizational 
chart clarifying the beneficiary's position in the organizational hierarchy and briefly explaining 
the duties of all employees. 
In a response dated September 10,2007, counsel for the petitioner provided a brief description of 
the beneficiary's three subordinate em loyees in the export marketing department, namely, 
, and h. Counsel also provided a breakdown of the 
percentage of time the beneficiary devoted to each task area. Specifically, counsel broke down 
the beneficiary's duties as they pertained to the foreign employer's business cycle, and indicated 
that the periods from September to December and May to August typically required the most 
effort with regard to marketing. In relevant part, the petitioner claimed that the beneficiary's 
duties were as follows: 
SEPTEMBER - DECEMBER: 
Direct the planning, preparation, and implementation of marketing strategies for export 
markets of [the foreign employer]. 
Travel to the most important markets (Kazakhstan, Azerbajan, Moldovia, Israel, 
Germany, Lativia) to understand current situation about the SV brands positioning 
there; (20%) 
Order the research information about the export markets from different 
organizations (Euromonitor International, ES WR, etc); (1 5%) 
Analyze the market information and the field information from the market; (20%) 
Review and supervise the marketing plans drafted [by] subordinates. . . . (10%) 
Prepare the marketing plans involved in communicating with advertising agencies 
at all target markets, as well as retail chains, distributors, who as a rule, were at 
the same time the company's importers and partners. (10%) 
Every new year market plan included adapting existing [the foreign entity's][ 
product portfolio to export needs, including translating labels, adapting brand 
names and sizes, and very often, developing new products for export basing on 
the existing internal product portfolio. . . . (1 5%) 
At the same time the execution of the current year's plan never stops: new 
advertisements are being adapted to local languages [to] be shown in local media, 
in-store promotions are being monitored and controlled, POS-material allocated, 
etc. (10%) 
JANUARY - FEBRUARY: 
Direct, oversee and manage the planning and implementation for executing local events 
in target markets: for example, sponsoring football tournament in Israel, involving major 
Ukranian and Russian teams, coverage on national TV, etc. 
JANUARY - MARCH: 
Coordinate, monitor and manage all preparations for the international trade shows 
(Dusseldorf, London, Moscow, Hong-Kong, etc[.]). 
MARCH - MAY: 
Execute the first seasonal wave of media and promo activity (spring wave) at most 
markets. 
MAY - AUGUST: 
Analyze the first year half results, correcting marketing plans for the second half, 
strategically repositioning marketing goals and objectives. Then, in September, the 
planning cycle begins again. 
Direct the updating and revision of the portfolio of brands for each market; (1 0%) 
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Controlling the price structure for each market, updating and regulating FOB 
prices; (1 0%) 
Adapting designs of advertisements for local markets; (1 0%) 
Approving the design, including POS designs and PR-articles with the lawyers 
both inside the company and at the target export market; (1 0%) 
Overseeing the follow-up regarding insertion orders, invoices and the payments 
for marketing activities in all export markets; (10%) 
Harmonizing media-calendars for leveraging cross-market synergies (for 
example, sponsoring sport events in Israel was covered by media in CIS 
markets)[;] (1 0%) 
Approving designs of exhibition booths for international trade shows. (1 0%) 
Approving PR and other copy materials for foreign trade press; (1 0%) 
Supplying internal (Ukranian and Russian) PR-services with the information 
about company's export activities; (1 0%) 
Miscellaneous managerial tasks related to export marketing. (1 0%) 
On February 6, 2008, the director denied the petition. The director noted that it did not appear 
that the beneficiary had been engaged primarily in managerial or executive tasks, and instead 
appeared to have been engaged in performing the marketing functions of the company. The 
director also noted that the claimed organizational hierarchy of the petitioner, with only three 
subordinates, did not support a finding that the beneficiary would be employed in a primarily 
managerial or executive capacity. 
On appeal, counsel for the petitioner refers to the statements set forth in the initial letter of 
support and in response to the request for evidence, and highlights the fact that the beneficiary 
had been "instrumental in developing the firm's marketing strategy" and "oversaw product 
development." 
Upon review of the petition and the evidence of record, the petitioner has established that the 
beneficiary was employed in a managerial capacity abroad. Accordingly, the director's decision 
with regard to this issue will be withdrawn. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first 
to the petitioner's description of the job duties. See 8 C.F.R. 5 204.5(')(5). The petitioner must 
clearly describe the duties to be performed by the beneficiary and indicate whether such duties 
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are either in an executive or managerial capacity pursuant to the definitions at section 10 1 (a)(44) 
of the Act. At a minimum, the petitioner must establish that the beneficiary's responsibilities 
will meet the requirements of one of the statutory definitions. 
The term "function manager" applies generally when a beneficiary does not supervise or control 
the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 
5 1 101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. The 
term "essential" is commonly defined as "inherent" or "indispensable." Webster S II New 
College Dictionary 384 2001. Accordingly, based on the plain meaning of the word "essential," 
the petitioner must establish that the function managed by the beneficiary is inherent and 
indispensable to the petitioner's operations rather than a non-essential or superfluous task. 
Based on the statutory definition of managerial capacity, a petitioner must prove the following 
elements to establish that a beneficiary is primarily serving as a function manager within an 
organization: 
First, the beneficiary must manage an "essential function'' within the organization, 
or a department or subdivision of the organization; 
Second, the beneficiary must function at a "senior level" within the organizational 
hierarchy or with respect to the function managed; and 
Third, the beneficiary must control and "exercise discretion" over the day-to-day 
operations of the function. 
See sections 10 1 (a)(44)(A)(ii), (iii), and (iv) of the Act. 
When examining the executive or managerial capacity of the beneficiary, USCIS will first look 
to the petitioner's description of the job duties. See 8 C.F.R. 5 204.5(j)(5). If a petitioner claims 
that the beneficiary is primarily managing an essential function, the petitioner must furnish a 
written job offer that clearly describes the duties to be performed in that capacity, i.e. identify the 
function with specificity, articulate the essential nature of the function, and establish the 
proportion of the beneficiary's daily duties attributed to managing the essential function. Id If a 
petitioner fails to document what portion of the beneficiary's duties would be managerial 
functions and what proportion would be non-managerial, the AAO cannot determine whether the 
beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. US. 
Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). In addition, the petitioner's description of 
the beneficiary's daily duties must demonstrate that the beneficiary manages the function rather 
than performs the duties related to the function. An employee who primarily performs the tasks 
necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 
593, 604 (Comm. 1988); see also Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 
1991); Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 at "5 (9th Cir, 
Page 11 
1995)(unpublished)(citing to Matter of Church Scientology Int '1 and finding an employee who 
primarily performs operational tasks is not a managerial or executive employee. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the 
petitioner's organizational structure, the duties of the beneficiary's subordinate employees, the 
presence of other employees to relieve beneficiary from performing operational duties, the nature 
of the petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. In the case of a function 
manager, when no subordinates are directly supervised, these other factors may include the 
beneficiary's position within the organizational hierarchy, the depth of the petitioner's 
organizational structure, the scope of the beneficiary's authority and its impact on the petitioner's 
operation, the indirect supervision of employees within the scope of the hnction managed, and 
the value of the budgets, products, or services that the beneficiary manages. 
In this matter, upon review of the totality of the record, the petitioner has established that the 
beneficiary was primarily serving as a function manager abroad. First, the AAO is satisfied that 
the beneficiary's role within the foreign organizations was that of a senior-level manager 
responsible for the management of an "essential function," specifically, the marketing, sales, and 
brand management of a product line that produces millions of dollars of revenue for the 
petitioner annually. The petitioner in this case derives its income from the production, 
marketing, sales and distribution of premium Russian vodka and spirits. Moreover, the petitioner 
is the second largest vodka company in the world. Within the scope of the petitioner's business, 
it is clear that the function of managing the sales, marketing, and brand image of one or more of 
its brands is an "inherent" or "indispensable" function, and therefore, an "essential" function as 
required by the plain language of the statute. 
Second, the petitioner has established that the beneficiary functioned at a senior level within the 
organizational hierarchy abroad and with respect to the function managed. In performing his 
daily activities, the beneficiary has been working closely with other employees primarily at the 
executive and managerial level. In a company with a multi-layered managerial structure, his 
position can clearly be considered senior within the company's complex organizational 
management hierarchy. Further, the petitioner has established that the beneficiary occupies the 
senior position with respect to the updating and revision of the portfolio of brands for each 
market, with accountability for overseeing marketing programs, controlling costs, and 
monitoring production and sales performance for several of the petitioner's key product lines. 
Third, the petitioner has established that the beneficiary "exercised discretion" over the 
day-to-day operations of the function in that he controls a broad range of activities associated 
with management of his assigned product lines. Beyond sales and marketing activities, the 
beneficiary's authority includes the allocation and control of a significant budget and authority to 
influence decisions made by the management of the various brands of vodka and spirit which he 
oversees. 
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Finally, although the director concluded that the beneficiary had been engaged primarily in 
performing the marketing functions of the company, the petitioner has submitted sufficient 
evidence to establish that it maintains a staff of subordinate marketing personnel who would 
perform the routine duties associated with marketing, advertising and selling the brands managed 
by the beneficiary, leaving the beneficiary free to primarily engage in developing policies and 
goals and overseeing execution of long-term strategies. Specifically, the organizational chart 
indicated that the beneficiary indirectly oversees three subordinate employees with managerial 
titles, and claimed that the beneficiary monitors and oversees the marketing plans drafted by his 
subordinates. The AAO is satisfied that the beneficiary primarily manages, rather than performs, 
the function. 
Based on the foregoing discussion, the petitioner has established that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
The last issue on appeal is whether the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity. In the letter of support dated May 10,' 2007, the 
petitioner claimed that the beneficiary would be employed in the United States as its vice 
president of marketing. The petitioner provided the following overview of the beneficiary's 
duties in this capacity: 
Define strategy for and develop, execute and manage comprehensive 
marketing plans for the launch of our premier vodka brand, SV Supreme 
and our other brands in the US. 
Direct all activities with advertising agencies, importers, distributors, 
management, internal sales and marketing departments, and vendors to 
execute overall export marketing efforts in accordance with corporate 
goals. 
Create, plan and carry out domestic US market research and analyses. 
• 
 Direct all product development activities for emerging US market. 
Organize, lead and directed forward-thinking marketing team[.] 
Prepare, manage and direct $1 OM marketing budget for US markets. 
The petitioner also provided an organizational chart for the U.S. entity, which indicated that the 
two subordinate employees: - 
In the request for evidence dated July 3, 2007, the director requested additional information 
pertaining to the beneficiary's duties abroad, as well as the percentage of time he devoted to 
these duties. Additionally, the director specifically requested a more detailed organizational 
chart clarifying the beneficiary's position in the organizational hierarchy and briefly explaining 
the duties of all employees. 
In a response dated September 10,2007, counsel for the petitioner claimed that the beneficiary is 
responsible "for all facets of marketing strategy development and implementation." In addition, 
counsel indicated that the beneficiary directly oversees one sales analyst, but claimed that the 
beneficiary additionally supervised other subordinates who are outside contractors and who 
worked directly on marketing, promotional, and press efforts. 
The petitioner provided an updated and more detailed overview of the beneficiary's duties in the 
U.S. In relevant part, the petitioner claimed that the beneficiary's duties were as follows: 
Development and [I of the marketing strategy and policy (10%) 
Market research (1 0%) 
Present the marketing strategies and plans (10%) 
Control of the new sizes design and production schedules (10%) 
Create and develop the advertising campaign (1 0%) 
Designing and producing the pos and other advertising material (10%) 
Media planning and media buying (1 0%) 
Negotiating with magazines about added value events (1 0%) 
Managing the public relations side of marketing + event management (1 0%) 
Additional responsibilities (1 0%) 
On February 6, 2008, the director denied the petition. The director noted that, similarly to the 
position abroad, the beneficiary would be not be engaged primarily in managerial or executive 
tasks, and instead would be engaged in performing the marketing functions of the company. The 
director also noted that the claimed organizational hierarchy of the petitioner, with only one 
identified subordinate and an organizational chart indicating numerous co-workers of the 
beneficiary with executive titles, did not support a finding that the beneficiary would be 
employed in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner again emphasizes that the beneficiary is involved in all 
facets of the petitioner's marketing strategy development. 
Upon review of the petition and the evidence of record, the petitioner has established that the 
beneficiary was employed in a managerial capacity abroad. Based on a review of the evidence, 
the AAO again concludes that the beneficiary will be employed as a function manager in the 
United States. Accordingly, the director's decision with regard to this issue will be withdrawn. 
Page 14 
As previously discussed, the AAO will look first to the petitioner's description of the job duties 
when examining the executive or managerial capacity of the beneficiary. See 8 C.F.R. 5 
204.5(j)(5). The petitioner must clearly describe the duties to be performed by the beneficiary 
and indicate whether such duties are either in an executive or managerial capacity pursuant to the 
definitions at section 101 (a)(44) of the Act. At a minimum, the petitioner must establish that the 
beneficiary's responsibilities will meet the requirements of one of the statutory definitions. 
The current organizational hierarchy of the petitioner, with a sales analyst and a claim that the 
beneficiary oversees external contractors, renders it reasonable to determine that the beneficiary 
can refrain from performing non-qualifying duties. A critical analysis of the nature of the 
petitioner's business supports the petitioner's assertions that subordinate employees andlor 
contractors relieve the beneficiary from performing non-qualifying duties. For example, the 
petitioner explained in detail in the organizational chart and the response to the request for 
evidence the manner in which the beneficiary accomplishes his external responsibilities through 
the use of external entities. Specifically, the petitioner claims that it uses Brand Action Team 
(BAT) Agency for design services, and the record contains evidence that BAT writes press 
releases and follows up on media stories and delivery of product samples for approximately 
$24,000 per month. 
Additionally, the petitioner claims that "marketing and brand development efforts are core 
business activities of this company and the U.S. office was launched with the expectation that it 
would oversee, direct, and develop all marketing efforts on behalf of the Silk Vodka." 
(Emphasis in original). The record contains evidence that the petitioner has utilized the services 
of Luxe Marketing LLC (Luxe), who provided the services of eighteen marketing managers. 
One invoice contained in the record indicates that Luxe billed the petitioner $300,000 for 
marketing services for the month of October 2007 alone, thereby creating a presumption that 
contrary to the director's conclusions, the marketing tasks are outsourced as claimed by the 
petitioner to an independent agency. 
Finally, the record indicates that the petitioner also retains McCaffery, Gottlieb Lane LLC 
(MGL), an advertising agency which places high profile advertisements for the petitioner's 
products, costing $60,000 - $80,000 on average, in magazines such as Vanity Fair. The record 
indicates that the beneficiary has the authority to approve these large-scale advertisements, 
thereby further supporting a finding that the beneficiary is employed in a qualifying capacity. 
As previously stated, a petitioner must prove the following elements to establish that a 
beneficiary is primarily serving as a function manager within an organization: (1) the beneficiary 
must manage an "essential function" within the organization, or a department or subdivision of 
the organization; (2) the beneficiary must function at a "senior level" within the organizational 
hierarchy or with respect to the function managed; and (3) the beneficiary must control and 
"exercise discretion" over the day-to-day operations of the function. See sections 
10 1 (a)(44)(A)(ii), (iii), and (iv) of the Act. 
Based on the totality of the record, the petitioner has established that the beneficiary will 
primarily serve as a function manager in the United States. First, the AAO is satisfied that the 
beneficiary's role within the petitioning organization will be that of a senior-level manager 
responsible for the management of an "essential function," specifically, the marketing, sales, and 
brand management of a product line that produces millions of dollars of revenue for the 
petitioner annually. The petitioner in this case derives its income from the production, 
marketing, sales, and distribution of premium Russian vodka and spirits, and the beneficiary will 
be responsible for the marketing and brand launch of Silk Vodka, among other products. Within 
the scope of the petitioner's business, it is clear that the function of managing the sales, 
marketing, and brand image of one or more of its brands is an "inherent" or "indispensable" 
function, and therefore, an "essential" function as required by the plain language of the statute. 
Second, the petitioner has established that the beneficiary will function at a senior level within 
the organizational hierarchy and with respect to the function managed. In performing his daily 
activities, the beneficiary has been working closely with outside contractors, such as advertising 
and marketing agencies, who perform services primarily at the executive and managerial level. 
The beneficiary's position can clearly be considered senior within the company's complex 
organizational management hierarchy. Further, the petitioner has established that the beneficiary 
occupies the senior position with respect to the updating and revision of the portfolio of brands 
for each market, with accountability for overseeing marketing programs, controlling costs, and 
monitoring production and sales performance for several of the petitioner's key product lines. 
Third, the petitioner has established that the beneficiary "exercised discretion" over the 
day-to-day operations of the function in that he controls a broad range of activities associated 
with management of his assigned product lines. Beyond sales and marketing activities, the 
beneficiary's authority includes the allocation and control of a significant budget and authority to 
influence decisions made by the management of the various brands of vodka and spirit which he 
oversees. As stated above, the beneficiary has the authority to approve expensive advertising 
campaigns and oversees the marketing efforts of Luxe as it pertains to Silk Vodka. 
Finally, although the director concluded that the beneficiary will be engaged primarily in 
performing the marketing functions of the company, the petitioner has submitted sufficient 
evidence to establish that it maintains a sufficient staff of external entities who perform the 
routine duties associated with marketing, advertising and selling the brands managed by the 
beneficiary, leaving the beneficiary free to primarily engage in developing policies and goals and 
overseeing execution of long-term strategies. Specifically, the record contains evidence of 
substantial services rendered to the petitioner by marketing, advertising and design agencies. 
The AAO, therefore, is satisfied that the beneficiary will primarily manage, rather than perform, 
the function. 
Based on the foregoing discussion, the petitioner has established that the beneficiary will be 
employed in a primarily managerial capacity in the United States. 
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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. Here, the petitioner has 
sustained that burden. For the foregoing reasons, the decision of the director will be withdrawn 
and the petition will be approved. 
ORDER: The appeal is sustained.