dismissed EB-1C Case: Automotive Manufacturing

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PUBLICCOpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
SRC 07 024 51146
Office: TEXAS SERVICE CENTER Date: OCT 10 2001
INRE: Petitioner:
Beneficiary:
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:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
fRotfb
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Texas Service Cent~r, denied the employment-based visa petition. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed the immigrant visa petition to classify the beneficiary as a multinational manager or
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c.
§ 1153(b)(1)(C). The petitioner is a corporation organized under the laws of the State of Delaware that is
engaged in the manufacturing, testing, and quality control of military automotive power train parts and is
operating as the United States manufacturing facility for the beneficiary's foreign employer. The petitioner
seeks to employ the beneficiary as its research and development manager.
The director denied the petition concluding that the petitioner had not established that the beneficiary would
be employed by the United States entity in a primarily managerial or executive capacity. The AAO notes that
the director also made observations regarding the beneficiary's foreign employment, yet did not make a
finding as to the capacity in which the beneficiary was employed by the foreign entity.
On appeal, the petitioner challenges the director's finding by submitting additional evidence "to elaborate on
the value that the beneficiary adds to [the petitioner's] operations and to identify the beneficiary's capability in
managing proj ects of the United States organization." The petitioner submits a brief in support of the appeal.
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.
The language of the statute is specific in limiting this provision to only those executives or managers who
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary.
A United States employer may file a petition on Form 1-140 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.
Page 3
The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a
primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § I 10I(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 ftmction within the organization, or a department or
subdivision of the organization;
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions
(such as promotion and leave authorization) if another employee or other employees are directly
supervised; if no other employee is directly supervised, nmctions at a senior level within the
organizational hierarchy or with respect to the nmction managed; and
(iv) Exercises discretion over the day-to-day operations of the activity or ftmction 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.
The petitioner filed the Form 1-140 on November 2,2006 noting the beneficiary's proposed employment as its
research and development manager, during which the beneficiary "manages and designs prototypes from
missions statements in coordination with engineering and design department." The petitioner noted that the
beneficiary would also manage and train the company's technicians. In an appended October 23, 2006 letter,
the petitioner restated the beneficiary's specialization "in the development of prototypes" and his performance
of research and development activities in the United States manufacturing facility. The petitioner further
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noted the importance of the beneficiary's "ability to develop and build the equipment necessary to
manufacture [power train] components," "to [ ] build the component testing equipment," and to train
technicians in the organization.
The petitioner attached the following additional description of the objectives related to the beneficiary's
proposed position of research and development manager:
Research & Development Objectives:
• Work with in-house and contract engineers in the development and designing of
testing equipment as required to effectively meet the performance standards of contract
awards.
• Assist [research and development (R&D)] in developing engineering solutions and
converting product related engineering concepts into prototypes for practical applications.
• Design and build manufacturing test equipment and assembly equipment for
components and assemblies for power train assemblies and propulsion systems of
armored and heavy-duty vehicle.
• Develop cost-effective upgrades to various power train components to enhance
reliability and durability and reduce maintenance costs.
Manufacturing Objectives:
• Review, repair and correct assembly equipment that are functioning below standard
or are faulty through practical knowledge of application and testing.
• Utilize the extensive company library, of technical specifications for combat vehicle
maintenance spare parts, to manufacture specialized critical components.
• Must possess expertise in reverse-engineered parts production when drawings and
specifications are not available.
• Work with suppliers in fabricating new or improved parts and verify the performance
of such parts as defined by the requirements set out by engineering.
Training and Trouble Shooting Objectives:
• Work with inspectors and engineers to trouble shoot and develop solutions for
assembly difficulties from component parts manufactured to approved third party
drawings.
• Provide training to in-house technicians in manufacturing/production/retrofitting and
overhaul services, as well as provide training to consumers on-site, when contract
demands, to ensure clients can continue to manage their project independently.
• Possess ability to trouble-shoot technical problems on site, if necessary.
• Must be able to travel to international destinations to provide technical/instructional
support to contract customers and to U.S. military and defense contractors. Valid
passport necessary.
• Conduct machine safety inspections to ensure all company tooling machines operate
safely and effectively.
Page 5
Company Support Objective:
Work in cooperation with all level employees of [the petitioning entity] and [the foreign
entity] to achieve customer satisfaction in all aspects of our business. To represent [the
foreign and petitioning entities] in a professional and congenial manner when working or
consulting with company clients.
On January 12, 2007, the director issued to the petitioner a request for evidence directing the petitioner to
submit a statement describing the beneficiary's proposed employment "in greater detail," including "all goal­
setting, policy-making, and discretionary decision-making duties," and the percentage of time the beneficiary
would devote to performing any of the named job duties. The director asked that the petitioner describe the
beneficiary's position in the company's organizational hierarchy and the supervision that the beneficiary
would receive in his proposed position, as well as submit an explanation as to how the beneficiary would
function in a primarily managerial or executive capacity in light of the company's reasonable needs and
overall purpose and stage of development. The director further requested the job titles and job descriptions of
the workers employed directly subordinate to the beneficiary.
The petitioner responded in a letter dated February 22, 2007. In an appended statement bearing the same
date, the beneficiary was identified as being "currently engaged in designing a third dynamometer test
equipment to accommodate the high volume of transmissions repair contracts that [the company] [has]
received awards for the US Government." The petitioner explained that the beneficiary "is also designing and
building a test stand" for a separate contract related to the supply of valve bodies. With respect to the
beneficiary's specific areas of responsibility, the petitioner outlined the following:
Goal Setting
• The Beneficiary is called upon to provide solutions to facilitate the successful
completion of contract performance - which is directed to military specifications.
• The Beneficiary['s] advice and recommendation is crucial to management decisions
regarding the pursuit of new programs by the company.
Policy Making
• The executives of the company, being a small and privately owned company,
perform policymaking. The Beneficiary's input in the areas of testing and prototype
design is taken into consideration[.]
• The Beneficiary provides advice for tools, equipment and fixtures as well as required
test equipment for the company's new products.
Discretionary decision-making duties
• [The] Beneficiary decides how the equipment is to be configured with existing work
cells and advises engineering with design, fabrication required and functional proofing
that will be undertaken.
• At local work site and abroad, the Beneficiary is empowered to make decisions in
order to complete the required task[.]
Work team
• The Beneficiary works with trained technicians at the manufacturing facility,
oversees the employees' performance on testing and assembly, and supervise test. He
operates in this capacity [approximately] 30% of his time.
• The Beneficiary also works with qualified and certified engineers in developing life
extension programs and his knowledge of the operation of the vehicle and the
specifications and material used in their construction, provide the engineering team with
an essential element for project competition. This activity is currently on a high
momentum with the company and he operates in this capacity [approximately] 30% of
his time. Recent work includes performance on a LAV C2 program with the US
[government] and Vl50 life extension program for foreign Government.
• The remaining time is spent in designing, building and troubleshooting on test
equipments' [sic] and production tooling.
The petitioner explained its need to employ the beneficiary in order "to develop and build the test equipment
necessary to fulfill our military specific contracts" and to train "in-house technicians in manufacturing,
production, retrofitting and overhaul services as well as provide[] training to customers."
The petitioner stated that with respect to the beneficiary's position in the organizational hierarchy, the
beneficiary would report to the company's vice-president of United States operations, who offers only
minimal supervision to the beneficiary in the performance of his assignments. In an attached organizational
chart, the beneficiary was depicted as a subordinate to the vice-president of U.S. operations. Based on the
organizational chart, the beneficiary would not oversee or manage any lower-level employees.
In a decision dated March 22, 2007, the director concluded that the petitioner had not demonstrated that the
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity.
The director referenced portions of the beneficiary's job description, concluding that they suggested that the
beneficiary's job duties would be comprised of performing the day-to-day functions of the company. The
director stated: "There is little or no evidence that the Beneficiary plans, organizes, and controls any of the
company's major functions, or that he mainly works through other employees to achieve company goals."
The director instructed that case law sets out a two-part requirement for classification as a manager or
executive: (1) that the beneficiary performs high-level responsibilities specified in the statutory definitions of
"managerial capacity" and "executive capacity"; and (2) that the beneficiary primarily performs the named
responsibilities and does not spend the majority of time performing daily functions of the business. The
director concluded that the record of proceeding did not establish that the beneficiary's "primary assignment"
would be directing the management of the petitioning organization or that the beneficiary would primarily
direct or supervise a subordinate staff or professional, managerial or supervisory employees who would
relieve him from performing non-qualifying tasks of the United States organization. Consequently, the
director denied the petition.
The petitioner filed this timely appeal on April 19, 2007. In a letter dated April 17, 2007, the petitioner
emphasizes that the transfer of the beneficiary's knowledge to the petitioner's operations and staff is critical to
maintaining its working relationship with the United States government and military. The petitioner
specifically refers to the beneficiary's "ability to develop test systems and operational aids that add
capabilities to the [company's] business activities," and his "expertise and knowledge ... in developing and
Page 7
creating systems to allow the Petitioner to enhance its offerings to the US Army." The petitioner states: "Due
to his ability to design, [and] trouble shoot, and his experience of designing many test cells, [the beneficiary]
is also a suitable candidate and his experience is a critical component of the company's success in the export
market." As evidence of the "activity that the beneficiary developed, designed, and managed," the petitioner
cites six contracts on which the beneficiary is working and notes the amount of time the beneficiary dedicated
to the design of each.
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United
States entity in a primarily managerial or executive capacity.
As explained by the director in her decision, 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).
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 204.5U)(5).
The record of proceeding does not establish that the beneficiary would primarily perform the high-level
responsibilities specified in the statutory definitions of "managerial capacity" or "executive capacity." Rather,
the job duties assigned to the beneficiary demonstrate that the beneficiary would be responsible for
performing the daily operational tasks related to the petitioner's research and development function. For
example, the beneficiary would design and build component testing equipment, assist "in developing
engineering solutions and converting engineering concepts into prototypes," "[d]evelop cost-effective
upgrades," "[r]eview, repair and correct assembly equipment," assist suppliers in manufacturing new parts,
train in-house technicians, provide technical and instructional support at off-site locations, and conduct safety
inspections on machinery. The AAO instructs that these tasks cannot be deemed to be managerial or
executive in nature, as they specifically relate to the petitioner's day-to-day operations and the services offered
by the company. See §§ 101(a)(44)(A) and (B) of the Act.
As noted by the director, none of the named job duties suggests that the beneficiary would possess managerial
or executive authority over the organization, a related department, a subordinate managerial, supervisory, or
professional staff, or a function of the petitioning organization. See id. In fact, the beneficiary is the only
employee working in the petitioner's research and development department. Based on both the offered job
duties and the organizational chart, the beneficiary would be solely responsible for performing the research
and development department's related functions, rather than maintaining authority over the performance of the
day-to-dayoperations. This finding is further supported by the petitioner's February 22, 2007 letter, in which
the petitioner explained that the beneficiary spends thirty percent of his time working with engineers to
develop life extension programs and the remaining seventy percent of time performing such non-qualifying
tasks as ".designing, building and troubleshooting on test equipments and production tooling." Clearly, the
beneficiary is devoting his time to personally performing research and development functions of the
petitioning entity, and is not engaged in performing primarily managerial or executive tasks. 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
Page 8
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of
Church Scientology Int'l., 19 I&NDec. 593, 604 (Comm. 1988).
The petitioner's claims on appeal further support the findings made above. Specifically, the petitioner
emphasizes its need to employ the beneficiary because of "his ability to develop test systems and operational
aids" and to "design and trouble shoot." Moreover, the petitioner's reference to six tests currently being
designed and built by the beneficiary, as well as his participation in "overseas assignments" and testing,
establishes his role in personally researching and developing the tests contracted for by outside groups, such
as the United States federal government and the military. The petitioner's additional representations on appeal
confirm that the beneficiary is personally responsible for performing services offered by the petitioning entity.
Again, an employee who "primarily" performs the tasks necessary 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).
The AAO acknowledges the petitioner's desire to employ the beneficiary due to the beneficiary's prior
experience in the company's research and development activities. However, it is because of the beneficiary's
day-to-day performance of the operational tasks associated with the petitioner's research and development
function, without the suggestion of managerial or executive authority, that the beneficiary cannot be deemed
to be employed in a primarily managerial or executive capacity. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of SojJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Corom. 1972». Accordingly, the appeal will be dismissed.
As noted previously, in her March 22, 2007 decision, the director noted several observations with respect to
the beneficiary's employment in the foreign entity. The petitioner did not specifically address on appeal the
capacity in which the beneficiary was employed by the foreign entity. Nonetheless, the record demonstrates
that the beneficiary did not occupy a primarily managerial or executive position in the Canadian company.
When examining the executive or managerial capacity of the beneficiary, the AAO will look to the
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5) .
.The record is devoid of a sufficient description of the job duties performed by the beneficiary while employed
by the foreign entity. In its October 23, 2006 letter, the petitioner only mentioned the beneficiary's prior
employment in the Canadian corporation, stating that in both the United States and foreign entities, the
beneficiary "specializes in the development of prototypes." Although the director requested a detailed
description of the beneficiary's assignment in the foreign entity, including his job duties and the amount of
time spent on each, the petitioner neglected to describe the beneficiary's former foreign employment, stating
only that he was employed as a senior technician in the research and development department. The limited
statements made with respect to the beneficiary's employment in the foreign entity restrict the analysis of
whether the beneficiary was employed by the foreign company in a primarily managerial or executive
capacity. 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).
Nonetheless, based solely on the petitioner's brief representations, it appears that the beneficiary, as the
foreign entity's senior technician, was primarily performing non-managerial and non-executive tasks related
to the research and development function of the company, and was not employed as the foreign company's
manager or executive. Again, an employee who "primarily" performs the tasks necessary 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). Accordingly, the petition will be denied for this additional reason.
The AAO recognizes that CIS previously approved four L-IA immigrant petitions filed by the petitioner on
behalf of the beneficiary. It should be noted that, in general, given the permanent nature of the benefit sought,
immigrant petitions are given far greater scrutiny by CIS than nonimmigrant petitions. The AAO
acknowledges that both the immigrant and nonimmigrant visa classifications rely on the same definitions of
managerial and executive capacity. See §§ 101(a)(44)(A) and (B) of the Act, 8 U.s.C. § 1101(a)(44).
Although the statutory definitions for managerial and executive capacity are the same, the question of overall
eligibility requires a comprehensive review of all of the provisions, not just the definitions of managerial and
executive capacity. There are significant differences between the nonimmigrant visa classification, which
allows an alien to enter the United States temporarily for no more than seven years, and an immigrant 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.
In addition, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate
burden of proof; each petition must stand on its own individual merits. See 8 C.F.R. § 103.8(d). The
approval of a nonimmigrant petition in no way guarantees that CIS will approve an immigrant petition filed
on behalf of the same beneficiary. CIS denies many 1-140 petitions after approving prior nonimmigrant 1-129
L-l petitions. See. e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of
Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1103.
Moreover, if the previous nonimmigrant petitions were approved based on the same unsupported assertions
that are contained in the current record, the approval would constitute material and gross error on the part of
the director. The AAO is not required to approve applications or petitions where eligibility has not been
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Due to the lack of required evidence in the
present record, the AAO fmds that the director was justified in departing from the previous nonimmigrant
approvals by denying the present immigrant petition.
Finally, the AAO's 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, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
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The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. 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, that burden has
not been met.
ORDER: The appeal is dismissed.