dismissed EB-1C Case: Airline

U.S. Citizenship 
and Immigration 
Services 
MATTER OF PTL-M-A-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an Indonesian airline company, seeks to permanently employ the Beneficiary as its 
"Senior Manager, Airline Acceptance and Delivery" under the first preference immigrant 
classification for multinational executives or managers. See Immigration and Nationality Act (the 
Act) section 203(b)(l)(C), 8 U.S.C. § 1153(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 Petitioner did not 
demonstrate that it qualifies as a "United States employer." The Director stated that "[t]he petitioner 
must be a U.S. citizen , corporation, partnership, or other legal entity to file an immigrant visa petition 
under this category" and found that the petitioning entity is an "unincorporated branch office of a 
foreign employer" that "is not competent to offer permanent employment to a beneficiary [ under this 
classification]." 
On appeal, the Petitioner disputes the Director's findings, contending that it is a U.S . employer because 
it has been doing business in the United States through a "liaison office." 
Upon de nova review, we conclude that the Petitioner has not demonstrated that it was qualified to file 
the petition as it is not a U.S. employer. 1 
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 be filed by a United States employer and 
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 
1 We note that the nonimmigrant L-lA classification does not prohibit filings by non-U.S. entities. 
Matter of PTL-M-A-
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. § 204.5(i)(3). 
II. U.S. EMPLOYER 
The issue to be addressed in this decision is whether the record contains sufficient evidence 
establishing that the petitioning entity is a United States employer. 
The applicable regulations at 8 C.F.R. § 204.S(c) and 8 C.F.R. § 204.S(j)(l) state the following, 
respectively: 
Any United States employer desiring and intending to employ an alien may file a 
petition for classification of the alien [ as a multinational executive or manager] .... 
A United States employer may file a petition on Form I-140 for classification of an 
alien ... as a multinational executive or manager." 
(Emphasis added). 
The plain language of the regulation requires that the filing party be a United States employer, not a 
foreign employer. The principle that the U.S. employer is both the filer of the petition and the 
prospective employer is reiterated in other portions of the regulations that state that "an authorized 
official of the petitioning United States employer" must furnish a statement establishing that "[t]he 
prospective employer in the United States is the same employer .... " 8 C.F.R. §§ 204.5(j)(3)(i) and 
(3)(i)(C). (Emphasis added). 
As "United States employer" is not defined in the regulations for purposes of this classification, we 
reviewed the definition of that term at 8 C.F.R. § 214.2(h)(4)(ii) for guidance which states the 
following: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
As in the above definition, the Form I-140 filing instructions also require that the filing party must 
provide an IRS tax identification number, thereby indicating that a petitioner seeking this permanent 
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Matter of PTL-M-A-
benefit, which may lead to U.S. citizenship, must, at the very least, show that it is registered to do 
business in the United States. Given that the regulations pertaining to the Form I-140 use, but do not 
provide a definition for, the term "United States employer," it is reasonable to look to the definition 
of that term in the regulations at 8 C.F.R. § 214.2(h)(4)(ii) and apply it to the matter at hand to 
determine whether the Petitioner fits these basic filing requirements. 
Further, in employment-based preference visa petition proceedings, a petitioner with no location or 
status in the United States is not a U.S. employer as it cannot offer permanent employment in the 
United States to a beneficiary. Only a U.S.-based branch office, affiliate, or subsidiary of a foreign 
organization may file such a petition. Matter of A. Dow Steam Specialties, Ltd., 19 I&N Dec. 389 
(Comm'r 1986). 
In this case, the filing party is the Beneficiary's foreign employer, which is headquartered in Indonesia. 
The Director denied the petition stating that the "petitioner must be a U.S. citizen, corporation, 
partnership, or other legal entity to file an immigrant visa petition under this category." The Petitioner 
argues that the "regulations expressly permit the U.S. employer to be the 'same employer' by which 
the beneficiary was employed overseas, so long as the U.S. employer has been 'doing business' for at 
least one year." We disagree that the regulations permit a foreign employer to be considered the 
United States employer and we find it reasonable to interpret "United States employer" to mean an 
entity that is physically present and registered to do business in the United States. 
Because the petitioning entity that filed the instant Form I-140 and which seeks to assume the role as 
the Beneficiary's prospective employer is a foreign entity, and there is no evidence in the record that 
the foreign entity is registered to do business in the United States, that entity is not a "United States 
employer." Therefore, we affirm the Director's conclusion that the petitioning entity in this instance 
is not a U.S. employer with standing to file the Form I-140 petition.2 
III. MANAGERIAL CAPACITY IN THE UNITED STATES 
In addition, while not previously addressed in the Director's decision, the Petitioner has not established 
that the Beneficiary would be employed in the United States in a managerial capacity, as claimed. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead 
2 We note that even if the petitioning entity did not have to establish that it is an entity in the United States that is registered 
to do business here, this petition would not warrant approval because the record lacks sufficient evidence to show that the 
foreign entity is doing business in the United States. The term "doing business" is defined 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." 8 C.F.R. ~ 204.5(i)(2) ( emphasis added). 
Counsel focuses on the fact that the Beneficiary provides various services in the United States for the benefit of the 
petitioning entity. However, statements in the record confirm that the foreign entity has no contract for an office space, 
does not file a U.S. tax return, and is not registered to do business in the United States. The evidence actually appears to 
indicate that the Beneficiary is present in the United States as an agent of his foreign employer and the foreign entity is not 
"doing business" as defined in the regulations. 
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Matter of PTL-M-A-
is primarily responsible for managing an "essential function" within the organization. See section 
10l(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If 
a petitioner claims that a beneficiary will manage an essential function, a petitioner must furnish a 
written job offer that clearly describes the duties to be performed in managing the essential function, 
or more specifically, identify the function with specificity, articulate the essential nature of the 
function, and establish the proportion of a beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. § 204.5(j)( 5). In addition, a petitioner's description of a beneficiary's 
daily duties must demonstrate that the beneficiary will manage the function rather than perform duties 
related to the function. See Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
In this matter, the Petitioner stated that the Beneficiary is one of two employees in the United States 
and claimed that he would assume the role of a function manager, which would involve supervision 
and management of the inspection and delivery process for Boeing aircraft. However, the Petitioner 
provided a job description indicating that the Beneficiary would perform many of the non-managerial 
job duties that comprise the function the Beneficiary is supposed to manage. Namely, the Petitioner 
stated that the Beneficiary's U.S. job duties would include the following: inspecting new airplanes; 
inspecting "airplane mechanical, avionics and structural systems"; providing engineering services, 
such as "research, studies, consultations, investigations, and preparation of performance standards on 
all aircraft systems"; "[s]tudy and analyze all pertinent correspondences, manuals, and publications 
issued by aircraft and component manufacturers;" "[s]tudy, analyze, and issue corresponding 
engineering publications"; perform technical aircraft evaluations; study applicable maintenance 
policies; and provide technical support and consultation necessary for installations and modifications 
of various aircraft systems. 
The Petitioner has not indicated nor submitted evidence demonstrating that the Beneficiary would be 
relieved from having to perform the non-managerial functions listed above. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not considered 
to be "primarily" employed in a managerial capacity. See, e.g., section 101(a)(44)(A) of the Act 
(requiring that one "primarily" perform the enumerated managerial duties); Matter of Church 
Scientology Int'!., 19 I&N Dec. 593, 604 (Comm'r 1988). The record does not establish that the 
Beneficiary would manage, rather than perform the underlying duties of: an essential function. For 
this additional reason, the petition cannot be approved. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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 PTL-M-A-, ID# 5467136 (AAO Sept. 20, 2019) 
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