dismissed EB-1C Case: Automobile Parts And Service

(b)(6)
DATE: JUN 0 6 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
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. § 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. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
'~ f Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.usds.gov 
(b)(6)
Page 2 
DISCUSSION: The Director , Texas Service Center , ("the director") denied the preference visa 
petition. The matter is now before the Admini strative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The U.S. petitioner was incorporated in the State of Texas on May 27, 1994. The petitioner states on 
the Form I-140, Immigrant Petition for Alien Worker, that its type of business is "automobile parts 
and service" and that it employs four personnel. The petitioner reported a gross annual income of 
$317,952 when the petition was filed. 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)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(1)(C), as a multinational executive or manager. 
On November 8, 2012, the director denied the petition determining that the petitioner failed to 
establish that it will employ the beneficiary 
in a managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel asserts that the director's basis for denial of the 
petition was enoneous and contends that the evidence of record is sufficient to satisfy the petitioner's 
burden of proof. 
I. The Law 
To establish eligibility for the employment-based immigrant visa classification, the petitioner must 
meet the criteria outlined in section 203(b) of the Act. 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 . 
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 language of the statute is specific in limiting this provision to only those 
(b)(6)
Page 3 
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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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 function 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 professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(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. 
(b)(6)
Page4 
II. The Issue on Appeal 
The issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that 
the beneficiary will be employed in a primarily managerial or executive capacity. 
In an undated letter submitted in supp01t of the petition, the petitioner indicated that it imports, sells, 
and refurbishes high quality engines for foreign vehicles. The petitioner stated that it caters to auto 
trade customers as the preferred engine supplier for major auto dealerships in the greater San Antonio 
area as well as throughout the state and as far as Canada. The petitioner noted that it also provides 
services to retail customers including professional engine and transmission installation and major, 
minor, and general repairs. With regard to the proffered position, the petitioner stated "[i]n connection 
with [the petitioner's] continuing business and procurement activities, the company requires the 
managerial services [of the beneficiary] on a full-time, permanent basis." The petitioner indicated 
that the beneficiary as president will perform the following: 
• Primarily manage operations and procurement function of the company using his 
contacts internationally to obtain the necessary inventory to run the business; 
• Establish annual organization goals and the strategic business plans to achieve 
those goals; 
• Oversee the application of the company's business plans; 
• Directly supervise and control the work of subordinate supervisors/managers in the 
companyas well [as] staff; 
• Function at a senior level and exercise 
discretionary authority over the day-to-day 
operations of same including personnel actions such as hiring and firing. 
[Bullet points added.] 
The petitioner stated that the above responsibilities are essential to the petitioner's ongoing business 
activities. The petitioner further delineated the beneficiary's job duties as: 
• Direct and coordinate financial and annual budget activities to fund operations, 
maximize investments. (10%) 
• Confer with managers to, coordinate activities, or resolve problems including 
managing departmental managers/supervisors of Sales and Administration and 
Technical Operations. (15%) 
• Analyze operations to evaluate performance of a company or its staff in meeting 
objectives or to determine areas of potential cost reduction, program improvement, 
or policy change including directing customer relationships. (20%) 
• Direct, plan, or implement policies, objectives, or activities of organizations or 
businesses to ensure continuing operations, to maximize returns on investments, or 
to increase sales of motors and motor parts. (10%) 
• Negotiate or approve contracts or agreements with suppliers, distributors, and 
customers including international contracts for engine components in South Africa 
and abroad 
for the purpose of procuring foreign engines and parts. (20%) 
• Review reports/suggestions submitted by management to recommend approval or 
to suggest changes. (10%) 
(b)(6)
Page 5 
• Appoint managers and assign or delegate responsibilities to them. (10%) 
• Direct human resources activities. (5%) 
The record also included the petitioner's organizational chart depicting the beneficiary as president 
over the sales/administration branch and the operations branch of the organization. The sales and 
administration branch included one employee identified as the administrative, sales, and marketing 
manager in a position over the organization's accounting and tax consultant. The operations branch 
included two identified employees, a workshop and warehouse manager who is depicted as over the 
head technician. Although the organizational chart indicated that additional office staff will be 
appointed and references the employment of auto technicians, the record did not include information 
supporting the petitioner's current employment of additional personnel. 
Upon review of the limited evidence in the record, the director issued a request for evidence (RFE) 
instructing the petitioner to submit additional evidence establishing that it will employ the beneficiary 
in a managerial or executive capacity. 
In response the petitioner claimed that the beneficiary will primarily perform duties in a managerial 
capacity. The petitioner indicated that the beneficiary will supervise managers and staff, and will 
have authority to hire and fire or recommend and exercise discretion over the day-to-day operations 
of their activities. The petitioner further noted that the beneficiary will manage the essential 
commercial accounts of the company, will manage critical customer relationships, and will function 
at a senior level with respect to the client development functions. The petitioner also stated that the 
beneficiary will exercise discretionary authority over the day-to-day operations of the same functions, 
including providing input on personnel actions. The petitioner also referenced a letter signed by a 
representative of the Small Business Development Center which offered the opinion that the Better 
Business Bureau had given the petitioner an A+ rating solely due to the beneficiary's business 
acumen. The petitioner asserted that it has sufficient staff to perform its day-to-day operations and 
that the beneficiary is not serving in the capacity of a mechanic or sales person, but rather is directing 
and running the corporation. 
The record also included the petitioner's Internal Revenue Service (IRS) Form 941, Employer's 
Quarterly Federal Tax Return, for the fourth quarter of 2011 showing the petitioner employed three 
personnel during the quarter. The three employees were identified as the beneficiary, the 
workshop/warehouse manager, and the head technician. 
Upon review of the totality of the record, the director denied the pet1t10n concluding that the 
petitioner failed to establish that the beneficiary will be employed in a primarily managerial or 
executive capacity. 
On appeal, counsel for the petitioner asserts that the evidence submitted overwhelmingly supports the 
conclusion that the beneficiary's responsibilities satisfy the criteria of a functional manager. 
III. Analysis 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary will 
be employed in a primarily managerial or executive capacity. In examining the executive or 
(b)(6)
Page 6 
managerial capacity of the beneficiary , United States Citizenship and Immigration Services (USCIS) 
will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(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 employment. Fedin Bros. Co., Ltd. v. Sava , 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.50)(5). That 
being said, however, USCIS reviews the totality of the record, which includes not only the 
beneficiary's job description, but also takes into account the nature of the petitioner's business, the 
employment and remuneration of employees, as well as the job descriptions of the beneficiary's 
subordinates, if any, and any other facts contributing to a complete understanding of a beneficiary's 
actual role within a given entity. 
As the director observed, the definitions of executive and managerial capacity have two parts. First, 
the petitioner must show that the beneficiary performs the high-level responsibilities that are specified 
in the definitions. Second, the petitioner must prove that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority of his or her time on day-to-day functions. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). The 
petitioner 
in this matter identifies the proffered position as primarily a managerial position. However, 
as the petitioner labels the proffered position "president" we also consider whether the duties and 
responsibilities of the proffered position demonstrate employment in an executive capacity. 
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. Section 101(a)(44)(B) of the Act, 
8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization . Inherent to the definition, 
the organization must have a subordinate level of managerial employees for the beneficiary to direct 
and the beneficiary must primarily focus on the broad goals and policies of the organization rather 
than the day-to ~ day operations of the enterprise . 
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, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). 
Personnel managers are required to primarily supervise and control the work of other supervisory, 
professional, or managerial employees . Contrary to the common understanding of the word 
"manager," 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 101(a)(44)(A)(iv) of the Act. 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. Section 101(a)(44)(A)(iii) 
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 is primarily responsible for managing an "essential function" 
within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The 
term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that 
clearly describes the duties to be performed in managing the essential function, i.e. identify the 
(b)(6)
Page 7 
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. See 8 C.F.R. § 204.5U)(5). 
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 "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Boyang, Ltd. v. I .N.S., 67 F.3d 305 (Table) , 1995 WL 576839 (9th Cir, 
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988)). 
The petitioner initially provided a broad overview of the beneficiary's duties. The petitioner stated 
that the beneficiary will establish goals and the business plans to achieve the goals, oversee the 
application of the business plans, and function at a senior level and exercise discretionary authority 
over the day-to-day operations. However, these broadly-cast business objectives fail to inform as to 
the beneficiary's actual duties within the organization. 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, 
supra. 
The few tasks more concretely described by the petitioner suggest that the beneficiary is actively 
participating in the performance of non-qualifying duties. Duties such as using contacts to obtain 
inventory and negotiating or approving contracts with suppliers, distributors, and customers to 
procure foreign engines and parts are the duties of an individual performing the petitioner's 
procurement function. Other tasks relate to the duties of a first-line supervisor over non-professional 
employees and thus are non-qualifying duties. In this matter, the record does not support the 
petitioner's claim that it employs individuals in managerial or supervisory roles. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici , 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of Cal(fornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Although the director requested brief positions descriptions for all employees subordinate to the 
beneficiary, the petitioner did not describe the duties of the workshop/warehouse manager. As such, 
we cannot conclude that this individual primarily supervises or manages the "head technician." In 
addition, the record does not demonstrate that such a position is a professional position. The 
petitioner has not provided documentary evidence that it continues to employ the individual in the 
position of administrative/sales/marketing manager, as this individual does not appear on the 
petitioner's latest filed IRS Form 941. Moreover, the petitioner has not described the duties of the 
administrative/sales/marketing manager; thus, the record does not support a finding that this 
individual, even if employed, primarily performs supervisory or managerial tasks or that the position 
itself requires an individual with a bachelor's degree to perform the tasks. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ 103.2(b)(14). 
Accordingly , the petitiOner has not provided sufficient evidence to demonstrate that it has a 
subordinate level of managerial employees for the beneficiary to direct, thus allowing the beneficiary 
to focus primarily on the broad goals and policies of the organization rather than the day-to-day 
(b)(6)
Page 8 
operations of the business. Similarly, the record does not demonstrate that the beneficiary will 
primarily supervise and control the work of supervisory, professional, or managerial employees. 
Therefore, the record does not include sufficient evidence to establish that the beneficiary primarily 
performs in the capacity of an executive or of a personnel manager as those terms are defined in the 
statute. 
The petitioner, in response to the director's RFE, claimed that the beneficiary will primarily perform 
duties in a managerial capacity. Although the petitioner reiterated that the beneficiary will supervise 
managers and staff and will have the attendant responsibilities of a personnel manager, the petitioner 
also indicated that the beneficiary will manage the petitioner's essential functions. The petitioner 
identified the essential functions as the commercial accounts of the company, its critical customer 
relationships and client development. 
We note that in the petitioner's description of the beneficiary's duties, the petitioner indicated that the 
beneficiary will spend ten percent of his time directing and coordinating the financial and annual 
budget activities to fund operations and maximize investments. The petitioner also indicated that the 
beneficiary would spend 20 percent of his time negotiating or approving contracts with suppliers, 
distributors and customers procuring foreign engines and parts. However, other than an outside 
accountant who prepared the petitioner's tax returns the petitioner did not provide evidence that it 
employed anyone to perform the financial duties of the petitioner. Thus, there is insufficient evidence 
to demonstrate that the outside accountant relieved the beneficiary from performing the operational 
tasks associated with budgetary and everyday banking and financial tasks. Likewise , the petitioner 
did not identify anyone who would perform the duties associated with developing and maintaining 
client relationships other than the beneficiary . We recognize that the beneficiary is not serving in the 
capacity of a mechanic but the record does not support the petitioner's claim that the beneficiary is not 
involved in sales, procurement, and the day-to-day operational tasks necessary to procure and sell 
engines and parts. The beneficiary's business acumen in performing the essential tasks to operate the 
business, while undoubtedly valuable to the company, is not synonymous with an individual 
managing an essential function(s). 
A company's size alone, without taking into account the reasonable needs of the organization, may 
not be the determining factor in denying a visa to a multinational manager or executive. See § 
101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial or 
non-executive operations of the company, or a "shell company" that does not conduct business in a 
regular and continuous manner. See, e.g. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Upon review of the totality of the record including the petitioner's organizational structure, the duties 
of the beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary 
from performing operational duties, and the nature of the petitioner's business, the petitioner has not 
established that the beneficiary's actual duties incorporate primarily executive or managerial 
functions. Although the petitioner may have plans to further expand its business, the record before 
the director failed to establish that the company currently has a reasonable need for the beneficiary to 
perform duties that are primarily in a managerial or executive capacity as those terms are defined in 
(b)(6)
Page 9 
the statute. A visa petition may not be approved based on speculation of future eligibility or after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. eomm'r 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (eomm'r 
1971). 
The AAO acknowledges that USeiS previously approved an L-1A nonimmigrant petition filed on 
behalf of the beneficiary, a classification which also requires the petitioner to establish the 
beneficiary's duties comprise primarily managerial or executive tasks. It must be noted, however, that 
many I -140 immigrant petitions are denied after users approves prior nonimmigrant I -129 L-1 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.e. 2003); IKEA US v. 
US ·Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, supra. 
Examining the consequences of an approved petition, there is a significant difference between a 
nonimmigrant L-1A visa classification, which allows an alien to enter the United States temporarily, 
and an immigrant E-13 visa petition, which permits an alien to apply for permanent residence in the 
United States and, if granted, ultimately apply for naturalization as a United States citizen. Cf §§ 204 
and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see also§ 316 of the Act, 8 U.S.C. § 1427. Because 
users spends less time reviewing r-129 nonimmigrant petitions than I-140 immigrant petitions, 
some nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d at 29-30; see also 8 e.F.R. § 214.2(1)(14)(i)(requiring no supporting documentation to 
file a petition to extend an L-1A petition's validity). 
Moreover, in making a determination of statutory eligibility, users is limited to the information 
contained in that individual record of proceeding. See 8 e.F.R. § 103.2(b)(16)(ii). In the present 
matter, the director reviewed the record of proceeding and concluded that the petitioner had not 
established the beneficiary would be employed in a primarily managerial or executive position. In 
both the request for evidence and the final denial, the director articulated the objective statutory and 
regulatory requirements and applied them to the case at hand. If the previous nonimmigrant 
petition(s) was approved based on the same evidence as submitted in this matter, the previous 
approval(s) would constitute gross error on the part of the director. Despite any number of previously 
approved petitions, users does not have any authority to confer an immigration benefit when the 
petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act. 
IV. Conclusion 
The petition will be denied and the appeal dismissed for the above stated reason. 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 not met that burden. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.