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AAO Decisions on EB-1C Multinational Executives Posted as of October 18, 2012

Compiled and with Commentary by Joseph P. Whalen (October 18, 2012)

AAO non-precedential Administrative Decisions on Appeals of or Motion on Denied I-140 Immigrant Petitions for Alien Worker as a Multinational Executive or Manager Pursuant to Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 USC. § 1153(b)(1)(C){Some initial decisions may be certified for review prior to issuance to the petitioner.}

LINK TO DECISION REMARKS/COMMENTS/EXCERPTS Jan032012_01B4203.pdf

SUMMARILY DISMISSED No allegation of any error as to law or fact was made on the I-290B and no brief or additional evidence was submitted after filing even though the I-290B indicated that more information would follow within 30 days. Nothing was received in the two years and three months that case sat around awaiting adjudication. There are far too many pointless and meritless appeals and motions filed by unscrupulous and incompetent practitioners for my liking. I want to see AAO and USCIS “get tough” and discipline these shysters.

Feb092012_01B4203.pdf APPEAL DISMISSED

DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The petitioner subsequently filed a motion to reopen and reconsider, which the director granted thus resulting in a new decision wherein the director affirmed the original denial. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS The petitioner is a New York corporation that is doing business as a trader of gemstones. It seeks to hire the beneficiary as its president. 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)(1)(C), as a multinational executive or manager. The director denied the petition based on two independent findings. The director concluded that the petitioner failed to establish:

(1) that the beneficiary was employed abroad in a qualifying managerial or executive capacity; and (2) that the beneficiary would be employed in the United States in a qualifying managerial or executive capacity.

On appeal, counsel disputes the director's most recent decision regarding the petitioner's motion to reopen and reconsider and submits an appellate brief asserting that the director erroneously considered the petitioner's organizational complexity and staffing size in determining the petitioner's eligibility.

* * * * * 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

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS 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 I-140 for classification of an alien under section 203(b)(1 )(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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the AAO will examine the record to determine whether the beneficiary was employed abroad and whether he would be employed in the United States in a qualifying managerial or executive capacity.

* * * * * In summary, after examining the beneficiary's job description and considering that information in light of the petitioner's organizational composition at the time of filing the petition, the AAO finds that the record lacks evidence to establish that the petitioning entity was capable of employing the beneficiary in a qualifying managerial or executive capacity at the time of filing. While it is foreseeable that the petitioning organization may eventually progress to a

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS stage of development wherein the beneficiary would be employed in a qualifying capacity, the petitioner had not reached such a stage at the time of filing. Despite the beneficiary's position at the top of the petitioner's organizational hierarchy and the built-in discretionary authority that may be inherent to such a role, the petitioner has not established that the primary portion of the beneficiary's time, at the time of filing the petition, would have been primarily allocated to tasks within a qualifying managerial or executive capacity. Therefore, the AAO finds that director properly denied the petition.

* * * * * Although the AAO acknowledges all the claims made by the above three affiants, we find that the statements from the beneficiary's foreign co-workers add little to an understanding of the beneficiary's employment capacity and thus are not sufficient to overcome the director's original findings, which focused primarily on the deficient job description and the lack of specific information detailing the beneficiary's actual day-to-day job duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir.1990).

Feb102012_01B4203.pdf The director denied the petition based on

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS APPEAL DISMISSED the determination that the petitioner

failed to establish that the beneficiary was employed abroad in a managerial or executive capacity. Additionally, while the director did not issue an affirmative finding with regard to the employment capacity of the beneficiary's proposed position with the U.S. entity, he noted that there was a discrepancy between the position description and the petitioner's organizational chart. Namely, the director observed that while the beneficiary's proposed job description includes supervising the marketing department, the petitioner's organizational chart did not actually include either a marketing department or marketing personnel. On appeal, counsel disputes the director's decision in an appellate brief in which he attempts to supplement the deficient job description by providing additional information about the beneficiary's employment abroad. The petitioner also provided supplemental documentation in the form of an employment letter, which addresses the beneficiary's employment abroad, and organizational charts for the U.S. and foreign entities.

Feb102012_02B4203.pdf APPEAL DISMISSED

If you seek a “Marketing Director” it would help if you actually had a Marketing Department. In addition, when you submit Organizational Charts to prove that the beneficiary was employed as a Manager or Executive it would help if the beneficiary was actually listed therein!

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS Feb222012_01B4203.pdf

APPEAL DISMISSED The petitioner is a California company that is a ''wine wholesaler." It seeks to employ the beneficiary as its president. 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)(1)(C), as a multinational executive or manager. The director denied the petition based on the determination that the petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity.

* * * * * A United States employer may file a petition on Form I-140 for classification of an alien under section 203(b)(1)(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 primary issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it would employ the beneficiary in the United States in a qualifying managerial or executive capacity.

* * * * * Both terms are statutorily defined!

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS * * * * *

It is noted that in examining the executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the proposed job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will then consider this information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, and the petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily operational tasks.

* * * * * Neither the job descriptions counsel has provided nor the organizational structure of the petitioner at the time of filing establishes that the beneficiary would be employed in the United States in a qualifying managerial or executive capacity. In fact, a number of the elements counsel included in the most recent job description are incongruent with the petitioner's organizational structure at the time the petition was filed. Despite the fact that the petitioner claimed that it has six subordinate employees to carry out its non-qualifying tasks, the petitioner's Form I-140 indicates that the petitioner had a total of four employees at the time the petition was filed. According to the Form 941, Employer's Quarterly Federal Tax Return for the second quarter of 2009, the petitioner employed three individuals on June 12, 2009, the day after the petition was filed. The salaries paid to the employees indicate that at least one of the employees was paid on a part-time basis. It is not clear how a single full-time subordinate employee and one part-time

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS employee were capable of relieving the beneficiary from having to allocate the primary portion of his time to the performance of non-qualifying tasks at the time the Form I-140 was filed. Additionally, the AAO finds that the beneficiary's job descriptions are deficient in that they fail to provide credible and detailed information about the actual tasks the beneficiary would have been performing at the time of filing. Namely, the petitioner failed to establish what specific tasks the beneficiary would perform in supervising business affairs or what policy decisions the beneficiary would make. The record is similarly lacking in specific information about the job duties involved in securing the growth of the petitioning entity. In the absence of some additional explanation, developing marketing strategy and negotiating deals must both be considered operational duties that cannot be classified as managerial or executive tasks. In addition, the petitioner is a wine wholesaler and it is not clear who is responsible for purchasing orders; managing the import and delivery of wholesale; managing customs clearances; inventory; and negotiating contracts with distributors. As mentioned above, the employer quarterly reports indicate that the petitioner employed a marketing manager but the accountant/administrator seems to be employed on a part-time basis.

* * * * * In the present matter, the evidence furnished strongly indicates that the

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS beneficiary would not be employed primarily in a qualifying managerial or executive capacity. For this reason, the petition may not be approved.

Feb232012_01B4203.pdf APPEAL DISMISSED

The director determined that the petitioner failed to submit sufficient credible documentation to establish that:

(1) a qualifying relationship exists between the petitioner and the beneficiary's claimed foreign employer; (2) the beneficiary was employed by the claimed foreign entity during the requisite three-year time period; (3) the foreign entity was doing business abroad from 2004-2008; and (4) the U.S. entity continues to do business. The director also questioned the petitioner's submission of documents pertaining to MRA Enterprises, Inc., stating that the significance of these documents is unclear.

The AAO notes that an explanation has been provided clarifying [REDACTED’s] relationship to the petitioner. However, as [REDACTED] is not the petitioning entity in the present matter, any documents or information that do not pertain either to the beneficiary's U.S. employer or her alleged employer abroad are not pertinent to the matter at hand and need not be addressed in this proceeding. The AAO further notes that the petitioner has submitted sufficient evidence to address

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS the director's concern regarding the petitioner's business activity beyond the year 2004. As such, the AAO concludes that the adverse finding in No.4 above can now be withdrawn. The remainder of the director's adverse findings will be fully addressed in the discussion below.

* * * * * The first issue to be address in this proceeding is whether the petitioner submitted sufficient credible documentation to establish that it has a qualifying relationship with the entity that employed the beneficiary abroad. 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)(1)(C) of the Act, 8 U.S.C. § 1 153(b)(1)(C); see also 8 C.F.R. § 204.50)(2) (providing definitions of the terms "affiliate" and "subsidiary").

* * * * * ... AAO finds both counsel's assertion and the corroborating minutes of meeting highly suspect and lacking in credibility. ...

* * * * * The second issue to be addressed in this proceeding is the beneficiary's employment abroad. Specifically, the AAO will examine the record to determine whether the beneficiary was employed abroad in accordance with the provisions specified at 8 C.F.R. § 204.5(j)(3)(i)(B), which requires the petitioner to establish that the beneficiary was employed abroad

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LINK TO DECISION REMARKS/COMMENTS/EXCERPTS in a qualifying managerial or executive position for at least one out of the three years prior to his entry to the United States as a nonimmigrant to work for the same employer.

* * * * * First, as a preliminary concern, the AAO notes that precedent case law prohibits a petitioner from making material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Accordingly, the AAO finds that the new information offered by counsel for the first time in the response to the director's NOID is highly suspect, as it is entirely inconsistent with the petitioner's original claims and supporting documents. ........

* * * * * Lastly, the AAO will address the third ground that served as a basis for denial- the petitioner's failure to establish that the foreign entity was doing business abroad from 2004-2008.

* * * * * On appeal, counsel asserts that USCIS overlooked relevant documentation because it was" being too preoccupied with the [REDACTED’s] involvement in this case." However, counsel's assertion is unfounded, as none of the previously submitted documents contained the information that the director requested in the NOID. Counsel's resubmission of evidence that was previously deemed insufficient does not overcome the director's adverse findings.