dismissed EB-1C Case: Automotive

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-E- INC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 27,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an automobile parts and service business, seeks to permanently employ the Beneficiary 
as its president under the first preference immigrant classification for multinational executives or 
managers. See Immigration and Nationality Act (the Act) section 203(b )( 1 )(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 Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the U nitcd States in a 
managerial or executive capacity. We summarily dismissed the Petitioner's appeal from the 
Director's decision, but subsequently reopened the proceeding in order to adjudicate the appeal on 
its merits. The Petitioner has since supplemented the record with a brief: which we have taken into 
consideration. 
On appeal, the Petitioner asserts that the Beneficiary qualifies as both a manager and an executive. 
The Petitioner also asks that we take into account the Beneficiary's experience. the contributions the 
Petitioner makes to its community, and facts that meet various eligibility criteria such as the 
company's continued business operations. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa 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. 
A United States employer may file a Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. This 
classification does not require a labor certification. 
Matter ofJ-E- Inc 
The petition 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 atliliate 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(j)(3). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary m a 
managerial or executive capacity. 
A managerial capacity is an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization, 
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) ofthe Act, 8 U.S.C. § IIOI(a)(44)(A). A personnel 
manager supervises and controls the work of other supervisory, professionaL or managerial 
employees; the duties of a first-line supervisor are not considered managerial unless the employees 
supervised are professional. !d. A personnel manager must also have the authority to execute or 
recommend personnel actions such as hiring, tiring, and promotions. A function manager need not 
directly supervise other employees, but must manage an essential function within the organization, 
or a department or subdivision of the organization, and function at a senior level within the 
organizational hierarchy or with respect to the function managed. !d. 
An executive capacity is 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 
I OI(a)(44)(B) of the Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section I 0 I (a)( 44 )(C) of the Act. 
A. Duties 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
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Matter oj.J-E- Inc 
The Petitioner stated that the Beneficiary ''has the sole discretion over the day to day operations of 
the company'' and "is responsible for the management of [the petitioning company] including the 
essential functions of the organization listed below;· with the approximate percentage of time 
devoted to each responsibility: 
• Manage department managers of Sales & Administration and Technical 
Operations: assign their managerial responsibilities; confer with them regarding 
operational status and recommendations; coordinate managerial activities, resolve 
operational problems. (35%) 
• Direct and coordinate financial and annual budget activities to fund operations, 
maximize investments. (1 0%) 
• 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 changes including directing customer relationship. (20%) 
• Direct, plan, or implement policies, objectives, or activities of organizational [sic] 
or businesses to ensure continuing operations, to maximize returns on 
investments, or to increase sales of motors and motor parts. ( 1 0%) 
• 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%) 
• Direct human resources activities. (5%) 
The Director denied the petition, stating that the Beneficiary's job description is overly broad and 
lacks details. On appeal, the Petitioner states: ''there was a breakdown in duties to include 
percentage of time spent on each detail: how that can remotely be considered 'broad' is indeed 
puzzling." 
Detail, in a job description, goes beyond time percentages in the job description. Words and phrases 
such as "a company or its stafT' and "organization[s] or businesses'' are general references rather 
than a description of one particular position at a known company. Most of the language in the 
submitted job description paraphrased or directly quoted tasks listed for ''Chief Executives" in 
O*NET, a database of job information sponsored by the U.S. Department of Labor. 1 For example, 
O*NET states that chief executives "[d]irect, plan, or implement policies, objectives. or activities of 
organizations or businesses to ensure continuing operations, to maximize returns on investments, or 
to increase productivity." The Petitioner changed "productivity'' to ''sales of motors and motor 
parts," but lett the broad reference to "organizations or businesses." 
The Petitioner must provide specific information about the particular position, rather than restate the 
basic requirements in the statute and regulations. See Fedin Bro.\'. Co .. Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). For the same reason, the 
requirement to provide a detailed job description would be meaningless if a petitioner could meet 
1 
See http://www.onetonline.org/link/summary/ I 1-1011.00 (printout added to record September 6, 20 17). 
3 
Matter of.J-E- Inc 
that requirement simply by quoting, with slight modifications. a genenc definition from a 
government-sponsored publication. 
The Petitioner has not provided enough information about the Beneficiary's duties to establish that 
those duties are primarily those of a manager or executive. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including 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. 
A beneficiary's control over the business does not necessarily establish eligibility for classification 
as an intracompany transferee in a managerial or executive capacity within the meaning of section 
101(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" of an executive or managerial nature. Sections 101(A)(44)(A) and (B) ofthe 
Act. While the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and 
possesses the requisite level of authority with respect to discretionary decision-making. the 
Petitioner has not established that the Beneficiary's actual duties. as of the date of tiling. would be 
primarily managerial or executive in nature. 
We also consider the proposed position in light of the nature of the Petitioner's business, its 
organizational structure, and the availability of staff to carry out the Petitioner's daily operational 
tasks. Federal courts have generally agreed that. in reviewing the relevance of the number of 
employees a Petitioner has, USC IS "may properly consider an organization's small size as one factor 
in assessing whether its operations are substantial enough to support a manager." 2 Furthermore. 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 and the absence of employees who would 
perform the non-managerial or non-executive operations of the company. See. e.g. S);sfronics Corp. 
v. INS, 153 F. Supp. 2d 7,15 (D.D.C. 2001). 
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. Personnel managers must 
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 
2 Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. r. Sava, 905 F.2d at 42; Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). 
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Matter (?f.!-E- Inc 
managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees 
supervised are professional." Section 101(a)(44)(A)(iv) ofthe Act; 8 C.F.R. § 204.5(j)(4)(i). 
At the time of tiling in February 2014, the Beneficiary had three subordinates. Their job 
descriptions and tax documents included the following information: 
Workshop & Warehouse Manager (also called Mechanic Manager & Lead Mechanic) 
Earned $23,140 in 2014 
• Supervise Mechanic duties 
• Diagnostics 
• Repairs on vehicles 
• Mechanical work 
• Reports sales to Functional Manager 
• Operates Forklift 
Mechanic 
Earned $20,902 in 2014 
• Diagnostics 
• Mechanical work 
Part-time mechanic 
Earned $8940 in 2014, all during the first quarter 
• Mechanic work on heavy work load days 
The above job descriptions indicate that the Beneficiary's subordinates relieve him from performing 
operational tasks relating to automobile repair and servicing, but not other tasks relating to running 
the business, such as purchasing, marketing, and facility maintenance. The Petitioner has not shown 
who acts as a cashier, accepting payment for services rendered. 
The Petitioner's organizational chart also showed the Beneficiary's spouse as the ''Administration, 
Sales & Marketing Manager," but her name is not on payroll documents from 2014, indicating that 
she left the company before the tiling date. The Petitioner did not specify the former duties of that 
position or identify who performed them after the Beneficiary's spouse left the company. None of 
the job descriptions submitted for the Beneficiary or his subordinates include marketing or 
administrative duties. The Petitioner stated that the workshop and warehouse manager "reports 
sales," but it is not clear what this entails or how much of his time the task occupies. 
To determine whether the 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. 3 The Director found that the Beneficiary performs ''the duties of a first-line supervisor 
3 
Cf 8 C.F.R. § 204.5(k)(2) (defining ''profession"' to mean "any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation"'). Section I 0 I (a)(32) of the 
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Matter of J-E- Inc 
over non-professional employees," which do not qualify as managerial. On appeal, the Petitioner 
asserts that its mechanics '"were hired for their experience, knowledge and abilities" rather than for 
their academic credentials. The Petitioner asks '·for consideration that hands on and real world 
experience can, and should, be valued," and cites case law which, according to the Petitioner. shows 
that "persons may be recognized as members of a professional class without the normally required 
academic degree - specifically whether no such degree program may exist." None of the cited case 
law recognizes automobile repair or any related field as a protession. 4 We note that the statute 
distinguishes between "professionals" and "skilled workers.'' See section 203(b )(3) of the Act. The 
distinction exists not to denigrate skilled work, but to recognize that there are significant differences 
in the ways one prepares for employment in the two types of occupation. 
The Petitioner has not shown that any of his subordinates are supervisory or managerial employees. 
One employee has a managerial title and is nominally a supervisor, but from the duties described, 
that employee appears to be primarily a mechanic, with at least one non-supervisory duty (operating 
a forklift) not shared with any other employee. It is not evident that he spends most, or even much, 
of his time supervising one or two subordinates. 
The Petitioner asserts that the Beneficiary is a function manager because he manages "an essential 
function - namely the procurement of merchandise, the negotiation of contracts and services and the 
supervision of provision of services from the team.'' A function manager's managerial role arises 
not from supervising or controlling the work of managerial, supervisory, or professional staff but 
instead from responsibility for managing an '"essential function" within the organization. See section 
10l(a)(44)(A)(ii) ofthe Act. The statute and regulations do not define the term ""essential function." 
If a petitioner claims that a beneficiary will manage an essential function. that petitioner must clearly 
describe the duties to be performed in managing the essential function, i.e., identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties dedicated 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 the duties related to the function. 
With respect to "the procurement of merchandise," the Petitioner has listed its suppliers. but the 
record does not show who handles the actual purchasing of supplies and inventory; it does not 
Act states that "'[t]he term profession shall include but not be limited to architects, engineers, lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
4 Specifically, the Petitioner cites: Matter ()(Yaakov, 13 I&N Dec. 203 (Reg'I Comm'r 1969); Matter ofArjani, 12 I&N 
Dec. 649 (Reg'! Comm'r 1966); Matter of Bienkowski, 12 I&N Dec. 17 (D.D. 1996); and Matter o{Dernani. II I&N 
Dec. 800 (Acting D.O. 1966). The beneficiary in Yaakov was a librarian with 312 years of college education; Arjani 
concerned an accountant with a bachelor's degree and postgraduate education; Bienkowski related to an economist with 
"'extensive employment experience''; and the beneficiary in Devnani was an organic chemist with ''extensive specialized 
experience." The cited cases show that, in some unusual instances, a person can work in a profession without first 
earning the normally required degree; but none of the cited cases expanded the definition of ''profession" to encompass 
occupations such as automobile repair that normally do not require a bachelor's degree. 
Matter of.J-E- Inc 
appear in any employee's job description. The Petitioner does not address this gap in the record or 
establish that the Beneficiary does not need to perform this task himself. 
The Petitioner has documented its employment of a small number of subordinate employees who 
work as automobile mechanics, but with the exception of an accountant who prepares the company" s 
tax returns, the Petitioner has not shown who relieves the Beneficiary from having to perform 
routine administrative functions that are neither managerial nor executive. 
The job description, as submitted, includes references to ''department managers of Sales 
& Administration and Technical Operations.'' The Director noted that no such departments appear 
to exist in the petitioning organization; the employee tasked with sales and administration left the 
company before the petition's filing date. The Petitioner does not address this finding on appeal. 
The Petitioner asserts that "ALL managers" sometimes perform non-managerial tasks. The statute 
takes this into account, requiring that a beneficiary's duties be primarily rather than exclusively 
managerial. Even so, the burden is on the Petitioner to demonstrate that the Beneficiary spends the 
majority of his time on managerial tasks. The Petitioner has not provided enough information to 
meet that burden, and the Petitioner has not shown who performs routine business functions other 
than automobile service and repair. 
Because the Petitioner has not established that the Beneficiary primarily manages (rather than 
performs) a specified essential function of the company, the Petitioner has not shown that the 
Beneficiary is a function manager. 
In the initial appellate brief, the Petitioner stated: "We are extremely disturbed at the reference to 
[the Beneficiary] not qualifying as an 'executive' - specifically as no mention of an executive 
position has been made in the record of filings. Perhaps the officer has gotten the petition 
confused." In a supplementary brief, however, the Petitioner states: ''we are persistent on this 
petition primarily because [the Beneficiary] also would meet the [definition] of Executive Capacity." 
The Petitioner does not elaborate on this assertion, except to paraphrase the definition by stating that 
the Beneficiary directs the company, establishes its goals and policies, and exercises wide latitude in 
discretionary decision making. 
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. Inherent to the definition, the 
organization must have a subordinate level of managerial employees for a beneficiary to direct and a 
beneficiary must primarily focus on the broad goals and policies of the organization rather than the 
day-to-day operations of the enterprise. An individual is not deemed an executive under the statute 
simply by virtue of an executive title or by "directing'' the enterprise as an owner or sole managerial 
employee. 
Matter of J-E- Inc 
The Beneficiary's control over the entity which he wholly owns is undisputed. But the Petitioner 
has not provided sufficiently detailed, reliable information to show that the Beneficiary" s work 
consists primarily of managerial or executive duties. 
The Petitioner asserts that USCIS previously approved petlttons granting the Beneficiary L-1 A 
nonimmigrant status as an intercompany transferee. Each petition tiling is a separate proceeding 
with a separate record; the nonimmigrant petitions are not part of the record now before us. In 
making a determination of statutory eligibility, USCIS is limited to the information contained in that 
individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). That said, if the previous 
nonimmigrant petitions were approved based on the same unsupported assertions that are in the 
current record, the approvals would constitute material 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. See Matter ol Church Scientology !nt '/. 
19 I&N Dec. at 597. USCIS is not required to treat acknowledged errors as binding 
precedent. Sussex Eng 'g Ltd. v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987). Furthermore, 
we are not bound to follow a contradictory decision of a service center. See La. Philharmonic 
Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
We further note that when the beneficiary of an L-1 A nonimmigrant petition is an owner or major 
stockholder of the company, the petition must include evidence that the beneficiary's U.S. services 
will be temporary, after which the organization will transfer the Beneficiary abroad. See 8 C.F.R. 
§ 214.2(1)(3)(vii). The Beneficiary is the sole owner of the petitioning U.S. company. and claims to 
be the sole owner of the foreign entity. The L-1 A classification is not intended to be a means for the 
owners of businesses to permanently transfer themselves to the United States. If the Beneficiary had 
intended to immigrate all along, then the earlier approvals were contrary to the regulations and 
therefore erroneous. 
III. QUALIFYING RELATIONSHIP 
The above discussion of the ownership of the U.S. and foreign companies leads us to an issue which 
the Petitioner must address if it seeks to tile a new petition. 
Each 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 section 203(b)(l)(C) of the Act; 8 C.F.R. 
§ 204.5(j)(3)(i)(C). This qualifying relationship must exist at the time of filing the petition. and 
throughout the adjudication of the proceeding. See 8 C.F.R. § 1 03.2(b )(1 ). Also, by regulation, 
"doing business" means the regular, systematic. and continuous provision of goods. services. or 
both, and does not include the mere presence of an agent or ot1ice. 8 C.F.R. § 204.5(j)(2). 
Therefore, evidence of a company's existence as a legal entity is not on its own sufficient to show 
that the company is doing business. 
.
Matter of J-E- Inc 
To show that the foreign company remains in business, the Petitioner submitted copies of invoices, 
payroll documents, and bank statements, but the most recent of these materials date from September 
2012. The record, therefore, does not show that the company was still doing business when the 
petition was filed in February 2014. 
Furthermore, South Africa's Companies and Intellectual Property Commission lists the foreign 
company as "deregistered. "5 This information indicates that the foreign company is no longer in 
business, and therefore , the Petitioner is no longer part of a multinational organization. Without a 
resolution of this issue, USC IS cannot properly approve any petition requiring an ongoing qualifying 
relationship between the two companies. 
IV. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in a managerial or executive 
capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of J-E- Inc, ID# 530011 (AAO Sept. 27, 2017) 
5 Publication No. , Notice No. 48-B, available at http ://www.cipc .co.za/files/ Crystal _ Reports _­
_ GGderegistrations _Pub No_ _Notice No_ 48-B _Pub Date _ 16-12-20 16 _Part I_ Close_ Corporations. pdf (excerpt s 
added to record September 6, 20 17). 
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