dismissed EB-1C Case: Advertising

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-N-Y-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 25, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an advertising agency, seeks to permanently employ the Beneficiary as a creative 
director under the first preference immigrant classification for multinational executives or managers. 
Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § l 153(b)(l)(C). This 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United 
States to work in an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity; and (2) the Beneficiary has been employed abroad in a managerial 
or executive capacity. 
On appeal, the Petitioner asserts that the denial of the petition conflicts with the outcome of prior 
petitions filed by the same U.S. employer. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the petition, 
has been employed outside the United States for at least one year in a managerial or executive capacity, 
and seeks to enter the United States in order to continue to render managerial or executive services to the 
same employer or to its subsidiary or affiliate. Section 203(b )(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same employer 
or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least one year. See 8 C.F.R. § 204.50)(3). 
Matter ofB-N-Y-
11. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 10l(a)(44)(B) of the 
Act. 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first show 
that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 
940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that 
the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that: (1) the Beneficiary will be employed in a 
managerial or executive capacity; and (2) the Beneficiary has been employed abroad in a managerial 
or executive capacity. The Petitioner claims that the position is both managerial and executive. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 204.5G)(5). Beyond the required description of the 
job duties, we examine the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
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Matter ofB-N-Y-
A Duties 
The Petitioner asserted that the Beneficiary held the same title, and performed the same duties, abroad 
from 2012 to 2015 as he has in the United States since that time. The Petitioner listed those duties, 
with the approximate percentage of time devoted to each: 
• Work closely with our clients to develop creative solutions (60%). 
• Review materials and information provided by the client to determine the most 
effective presentation concept and approach (10% ). 
• Confer with heads of art, copywriting and production departments to discuss client 
requirements, outline basic presentation concepts and direct all creative work 
(10%). 
• Review and evaluate art and copy materials prepared by artists, illustrators, 
copywriters and other members of the creative team throughout the production 
process to ensure compliance with client requirements (10% ). 
• Participate in new business development for the agency, taking the creative lead in 
presentations to try to obtain new assignments from current and prospective clients 
(10%). 
Asked for more details, the Petitioner repeated the above description and added: 
To perform his duties, [the Beneficiary] has senior level client contact which is 
essential for him to determine the most effective presentation concept and approach for 
the planned advertising. Also, throughout the development and implementation of each 
advertising campaign or strategic marketing promotion, [the Beneficiary] has the 
executive and managerial authority to direct changes as needed to comply with client 
requirements. 
The Beneficiary's foreign employer provided a reworded, but fundamentally similar, job description 
and asserted: "the position of Creative Director is an executive and managerial position. As Creative 
Director, [the Beneficiary] was responsible for the quality of all creative work on advertising for client 
accounts assigned to him." This statement, like the earlier description, is a general assertion of 
authority rather than a detailed description of the Beneficiary's actual, specific duties. 
The Petitioner submitted an excerpt from an industry reference work, which included the following 
job description for a creative director: 
Responsible for the quality of all creative work produced by the Company/Agency for 
all general advertising clients, a group of general advertising clients, or one large 
general advertising Client. May direct activities of subordinates to maintain standards 
of creative excellence and insure achievement of goals. Has senior-level Client contact. 
Typically reports to the Chief Creative Director or Chief Creative Officer. 
The Director acknowledged that the Petitioner had presented "a general sense of bene's heightened 
degree of discretionary authority." But the Director denied the petition based on a finding that the 
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Matter ofB-N-Y-
Petitioner relied on broad, general job descriptions that lacked sufficient details about the 
Beneficiary's intended duties. On appeal, the Petitioner acknowledges this finding, but does not cite 
any specific details from prior submissions that would rebut the finding. Instead, the Petitioner notes 
that the Beneficiary "has senior level client contact," and the Petitioner asserts: "Senior-level client 
contact is a privilege granted only to high ranking executives and managers. The client's senior 
marketing officer will not want to meet with subordinates employed by the Petitioner." Apart from 
the lack of corroboration for the second quoted sentence, this assertion does not address the issue at 
the heart of the denial decision because it sheds no further light on what the Beneficiary does with the 
majority of his time. 
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, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 
41 (2d. Cir. 1990). Reciting a beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties. The actual duties themselves will reveal the true nature of the employment. Id. 
Here, the Petitioner has emphasized the claimed level of the Beneficiary's authority, largely at the 
expense of details about the Beneficiary's activities in the course of his daily routine. We acknowledge 
that the Beneficiary spends a minority of his time overseeing, directing, and approving the work of 
others, but to qualify, the work must be primarily managerial or executive. For 60% of the 
Beneficiary's time, we have only the assertion, without elaboration, that the Beneficiary works with 
clients to develop creative solutions. This work presumably does not involve reviewing materials 
from the client; conferring with department heads; outlining concepts; directing creative work; or 
reviewing the work of the creative team, because the Petitioner presented those factors as being 
separate elements of the Beneficiary's duties. 
B. Staffing 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
The statute plainly states that 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." Section 10l(a)(44)(A)(iv) of the Act; 8 C.F.R. § 204.5G)(4)(i). 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. 8 C.F.R. § 204.50)(2). 
A list of "Job Descriptions for Various Advertising Positions" included the following excerpts: 
Global Chief Creative Officer 
The Global Chief Creative Officer provides overall creative leadership for the 
advertising agency's worldwide organization .... 
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Matter ofB-N-Y-
New York Chief Creative Officer 
Overall responsibility and accountability for the management of the creative function 
of the agency's New York office. Participates in setting the agency's goals and policy­
making decisions .... 
Executive Creative Director 
The Executive Creative Director is responsible for the quality of all creative work 
produced by the agency for all general advertising clients .... 
Senior Creative Director/Creative Director 
Responsible for all creative operations for a specific group of accounts to include staff 
supervision and work production .... 
The list indicated that the following positions all report to the senior creative director/creative director: 
Associate Creative Director 
Senior Art Director 
Art Director 
Junior Art Director 
Senior Copywriter 
Copywriter 
Junior Copywriter 
To show the makeup of specific projects, the Petitioner listed the employees in one of its current client 
groups: 
• Global Chief Creative Officer 
• New York Chief Creative Officer 
• Group EVP/Executive Creative Director 
• SCD/ABS Entertainment group (2 names) 
o 2 Creative Directors 
• EVP/ECD Entertainment group (2 names) 
o 6 Creative Directors (including the Beneficiary) 
o Art Director 
o 2 Junior Art Directors 
o Copywriter 
o 2 Junior Copywriters 
The "Creative Department" during the Beneficiary's employment abroad included these titles: 
• 2 Executive Creative Directors 
• 2 Creative Directors (including the Beneficiary) 
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Matter ofB-N-Y-
• 4 Associate Creative Directors 
• 3 Senior Art Directors 
• 2 Art Directors 
• 2 Junior Art Directors 
• 3 Senior Copywriters 
• 2 Copywriters 
• Junior Copywriter 
The composition of the above groups raises questions about the hierarchy of authority. The Petitioner 
stated that art directors and copywriters all report to the creative director, but half of the 12 people 
listed in the EVP/ECD Entertainment Group are creative directors. The Petitioner did not explain how 
six creative directors could all collectively be managing the six lower-level workers, or how the 
Beneficiary, out of the six creative directors, would be primarily managing lower-level staff 
The Petitioner did not establish that the Beneficiary, or any creative director, had authority to hire or 
fire subordinate employees, or to recommend those actions. Because this is a core element of the 
definition of a personnel manager, this omission is significant. 
The term "function manager" applies generally when a beneficiary's managerial capacity derives not 
from supervising or controlling a subordinate staff, but instead from primarily managing an "essential 
function" within the organization. See section 1 0l(a)( 44)(A)(ii) of the Act. If a petitioner claims that 
a beneficiary will manage an essential function, it must clearly describe the duties to be performed in 
managing the essential function. In addition, the petitioner must demonstrate that: 
(1) the function is a clearly defined activity; (2) the function is "essential," i.e., core to 
the organization; (3) the beneficiary will primarily manage, as opposed to perform, the 
function; ( 4) the beneficiary will act at a senior level within the organizational hierarchy 
or with respect to the function managed; and (5) the beneficiary will exercise discretion 
over the function's day-to-day operations. 
Matter of G-Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the foreign entity 
stated: "The creation of advertising campaigns and marketing promotions ... is an essential function 
of our advertising agency. Thus, [the Beneficiary] had executive and managerial authority over this 
essential function." The creation of advertising and promotional campaigns may be an essential 
function for an advertising agency, but the Petitioner has not claimed or established that the 
Beneficiary has overall authority over that function. According to the list of positions, a given creative 
director would be subordinate to up to four layers of superior authority with respect to the company's 
creative function. Rather, the Beneficiary's authority is limited to individual projects within that 
function. No one specific advertising campaign or client account appears to be a self-contained 
essential function for the organization. 
The statutory definition of the term "executive 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, component, or function. A beneficiary must also 
exercise "wide latitude in discretionary decision making" and receive only "general supervision or 
Matter ofB-N-Y-
direction from higher level executives, the board of directors, or stockholders of the organization." 
Section 10l(a)(44)(B) of the Act. 
In this instance, the Petitioner has not established that the Beneficiary is, or has been, an executive. 
Rather, he is one of an unspecified number of creative directors who report to senior creative directors, 
at least one executive creative directors, and local and global creative officers. These multiple superior 
layers within the "creative" function preclude a finding that the Beneficiary is an executive. 
C. Prior Approvals 
The Petitioner submits a copy of a 2013 appellate decision, reversing the denial of an immigrant 
petition filed on behalf of another of the Petitioner's employees. The Petitioner acknowledges that the 
unpublished appellate decision is not binding precedent, but asserts that "the decision gives an 
excellent analysis of how the applicable laws and regulations should be applied to the Petitioner given 
its size and organizational structure." 
At issue are not the Petitioner's size and organizational structure, but rather the qualifications of one 
particular beneficiary in one particular position. The record of proceedings for the approved petition 
is not currently before us, and the submitted decision does not contain enough information to show 
that the facts in the approved petition closely match those in the present case. The 2013 decision, for 
example, did not specify the job title or duties of the beneficiary in that case. 
Likewise, the L-IA nonimmigrant petition filed on behalf of the present Beneficiary is not before us 
for review. An adjudicator's fact-finding authority should not be constrained by any prior petition 
approval, but instead, should be based on the merits of each case. USCIS Policy Memorandum 
PM-602-0151, Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in 
the Adjudication of Petitions for Extension of Nonimmigrant Status 3 (October 23, 2017), 
http://www.uscis.gov/legal-resources/policy-memoranda. The prior approval of a nonimmigrant 
petition is not prima facie evidence of eligibility for an immigrant classification. 
The Petitioner cites 8 C.F.R. § 214.2(1)(6)(E), which states, in part: "Consular officers may grant 'L' 
classification only in clearly approvable applications." The Petitioner states that the Director "has 
refused to follow the determination of the U.S. Consulate in Amsterdam that the Beneficiary qualifies 
as an executive or manager," and that the Director "has not referred to a legal reason for not abiding 
by the determination of the U.S. Consulate in Amsterdam." The present immigrant petition has its 
own separate record of proceeding, with its own burden of proof The Director was not required to 
revisit earlier proceedings. The Director explained the grounds for denying the present petition, as 
required by 8 C.F.R. § 103.3(a)(l)(i); there is no separate requirement for the Director to readjudicate 
prior petitions or explain their different outcomes. The Beneficiary's prior admission as an L-IA 
nonimmigrant did not create a presumption of eligibility for classification as a multinational manager 
or executive. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary will 
be employed in the United States, and has been employed abroad, primarily in a managerial or 
executive capacity. 
Matter ofB-N-Y-
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-N-Y-, ID# 2991441 (AAO Apr. 25, 2019)