dismissed EB-1C Case: Automobile Sales

U.S. Citizenship 
and Immigration 
Services 
InRe: 7512066 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 5, 2020 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, a used automobile dealership, seeks to permanently employ the Beneficiary as its 
"Finance Manager" 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 )( 1 )(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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that the Beneficiary was employed abroad in a managerial or executive capacity or 
that a qualifying relationship exists between the Petitioner and the Beneficiary's employer abroad. The 
matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we find that the Petitioner has not 
established that the Beneficiary's employment abroad was in a managerial capacity. 1 Therefore , we 
will dismiss the appeal. Because of the dispositive effect of this finding, we will reserve the remaining 
issue. 
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 I-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 .5(i)(3) . 
1 The Petitioner does not claim that the Beneficiary was employed abroad in an executive capacity . 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The primary issue to be addressed in this decision is whether the Petitioner provided sufiicient evidence 
demonstrating that the Beneficiary was employed abroad in a managerial capacity. 2 
"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. 
The Petitioner must establish that the Beneficiary was employed abroad in a managerial capacity. See 
8 C.F.R. § 204.5(j)(3). Based on the statutory definition of managerial capacity, the Petitioner must first 
show that the Beneficiary performed certain high-level responsibilities. Champion World, Inc. v. INS, 
940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary was primarily engaged in managerial 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. 
Beyond the Beneficiary's job duties, we examine the company's organizational structure, the duties of 
the Beneficiary's subordinate employees, the presence of other employees to relieve the Beneficiary from 
performing operational duties, the nature of the business, and any other factors that will contribute to 
understanding the 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 foreign 
employer's business and staffing levels. 
A Procedural History 
In a supporting cover letter, the Petitioner stated that the Beneficiary worked abroad as the foreign entity's 
human resources manager. The Petitioner offered the following four groups of job duties to describe the 
activities the Beneficiary performed during his employment abroad: 
2 As the Petitioner does not claim that the Beneficiary was employed in an executive capacity, we will not address this 
issue and will limit our discussion to whether the Beneficiary's employment abroad was in a managerial capacity. 
2 
• Formulated policies and procedures regarding employee recruitment, placement, orientation, 
benefits, and labor and industrial relations; 
• Planned, directed, supervised, and coordinated subordinate staff's activities regarding 
employment, compensation, and labor employee relations; 
• Directed the preparation and distribution of information regarding employee benefits, 
compensation, and personnel policies; and 
• Planned, directed, and coordinated human resource management functions, including 
compensation, recruitment, and personnel policies. 
The Petitioner also provided the foreign entity's organizational chart showing the Beneficiary's position 
as directly subordinate to the company's general manager. The chart indicates that the Beneficiary 
oversees a "human resources executive," a legal consultant, and a "warehouse executive," the latter of 
whom is shown as overseeing two production workers, four packaging workers, and one maintenance 
worker. 
In a request for evidence (RFE), the Director informed the Petitioner that it did not provide sufficient 
evidence to establish that the Beneficiary was employed abroad in a managerial capacity. The Petitioner 
was therefore instructed to provide a statement from the foreign employer describing the Beneficiary's 
specific daily job duties, the percentage of time to be allocated to each duty, and an organizational chart 
with employee job titles, brief job descriptions, and educational levels as well as evidence establishing 
any contractors the foreign entity may have hired along with their job duties. 
The Petitioner's response included a statement from the foreign entity containing the Beneficiary's 
foreign job duty breakdown. The statement reiterated the above information and added a percentage of 
time to each of the four groups of duties, indicating that the Beneficiary allocated 25%, 30%, 10%, and 
15% to each of the above groups, respectively. The Petitioner added a fifth group of duties stating that 
the Beneficiary spent the remaining 20% of his time planning, directing, and coordinating "supportive 
services," such as record and file keeping, mail distribution, collecting and issuing invoices, overseeing 
maintenance and custodial operations, coordinating activities among clerical and administrative 
personnel, and organizing "office operations." The Petitioner also provided an updated organizational 
chart, which reflected staffing changes that took place after the Beneficiary's departure. 3 
In the denial, the Director noted that the RFE response referred to the Beneficiary's pos1t10n as 
"administration and human resources manager," instead of human resources manager, as originally 
indicated, and listed job duties that were not part of the initial job description. The Director therefore 
found that a human resources manager's job duties are not representative of the Beneficiary's position as 
administration and human resources manager. The Director also found that the Petitioner did not establish 
that the Beneficiary managed professional subordinates because it did not provide evidence showing that 
a minimum of a bachelor's degree was required to fill the subordinates' respective positions. 
The Petitioner disputes the Director's decision, contending that the Beneficiary assumed a managerial 
position in which he supervised professional subordinates. 
3 As the new organizational cha11 does not address the Beneficiary's former employment with the foreign entity, that chart 
is not relevant to the matter at hand and need to be discussed fu11her. 
3 
B. Analysis 
We find that the Petitioner has not provided sufficient evidence demonstrating that the Beneficiary 
was employed abroad in a managerial capacity. By statute, eligibility for this classification requires 
that the duties of a position be "primarily" managerial in nature when claiming that a beneficiary's 
past or proposed employment is in a managerial capacity. Section 10l(A)(44)(A) of the Act. Here, 
the job descriptions the Petitioner provided indicate that the Beneficiary did not allocate his time 
primarily to tasks of a managerial nature, nor is there evidence demonstrating that the Beneficiary 
primarily managed subordinate employees and authority to hire and fire. 
Despite claiming that the Beneficiary was a personnel manager, the job duty breakdown provided in 
the RFE response indicates that the Beneficiary spent approximately 55% of his time formulating 
policies that pertained to human resource issues, directing the preparation and distribution of employee 
benefits information, and planning and coordinating "supporting services" and coordinating activities 
among clerical and administrative personnel. Although these job duties indicate that the Beneficiary 
worked with employee-related issues, they do not demonstrate that he primarily managed subordinate 
personnel. Further, despite stating that the Beneficiary supervised and coordinated subordinates, the 
Petitioner did not allocate a percentage of time to these individual job duties and instead grouped them 
together with other duties to which the Beneficiary was claimed to have allocated 30% of his time. 
Regardless, the Beneficiary's performance of these supervisory job duties indicates that personnel 
management was, at best, ancillary to his position and did not occupy the primary portion of his time. 
On appeal, the Petitioner contends that the Beneficiary managed the two individuals who provided the 
Beneficiary's employment verification letters and asserts that each employee "has the education capacity 
or sufficient experience to be considered degreed personnel." The Petitioner did not, however, provide 
evidence showing the position requirements of the Beneficiary's subordinates. In evaluating whether a 
beneficiary manages professional employees, we must evaluate whether the subordinate positions 
require a baccalaureate degree as a minimum for entry into the field of endeavor. C/ 8 C.F.R. 
§ 204.5(k)(2) (defining "profession" to mean "any occupation for which a U.S. baccalaureate degree 
or its foreign equivalent is the minimum requirement for entry into the occupation"). Therefore, even 
if the Petitioner were to establish that the Beneficiary's subordinates had bachelor's degrees, it would 
still have to provide evidence showing that such degrees were among the job requirements of the 
respective positions. Here, the Petitioner did not provide such evidence. The Petitioner must support 
its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). 
The Petitioner also contends that as a result of "the wrong advice" given by an unnamed paralegal, the 
Petitioner asks that we "ignore" the statements it submitted in response to the RFE; the Petitioner claims 
that it made a "material error" by changing the Beneficiary's job title and "adding duties not natural and 
not related" to the Beneficiary's position as the foreign entity's human resources manager. The Petitioner 
does not specify which job duties were "not natural and not related" to the Beneficiary's position, nor did 
it provide evidence establishing precisely what job duties the Beneficiary actually carried out. Moreover, 
even if the Petitioner accepted deficient legal advice from a paralegal, there is no remedy available for a 
petitioner who assumes the risk of authorizing an unlicensed attorney or unaccredited representative 
to undertake representations on its behalf See 8 C.F.R. § 292.1; see also Hernandez v. Mukasey, 524 
4 
F.3d 1014 (9th Cir. 2008) ("nonattomey immigration consultants simply lack the expertise and legal 
and professional duties to their clients that are the necessary preconditions for ineffective assistance 
of counsel claims"). We only consider complaints based upon ineffective assistance against accredited 
representatives. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), ajf'd, 857 F.2d 10 (1st Cir. 1988) 
(requiring an appellant to meet certain criteria when filing an appeal based on ineffective assistance 
of counsel). 
Lastly, the Petitioner points to its previously approved L- lA petition, indicating that the instant petition 
should also be approved based on the prior approval. The Director's decision does not indicate whether 
he reviewed the prior approval of the other nonimmigrant petition. If the previous nonimmigrant 
petition was approved based on the same evidence contained in the current record, the approval would 
constitute an error on the part of the Director. We are not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be 
unreasonable for USCIS or any agency to treat acknowledged errors as binding precedent. Sussex 
Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center Director had approved the nonimmigrant 
petitions on behalf of the Beneficiary, we would not be bound to follow the contradictory decision of 
a service center. Louisiana Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
In light of the deficiencies discussed earlier in this decision, we find that the Petitioner did not establish 
that the Beneficiary was employed abroad in a managerial capacity and therefore we cannot approve 
this petition. 
ORDER: The appeal is dismissed. 
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