dismissed EB-1C Case: Automotive Parts

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?identifying dzta deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PI m1 IC copy 
IN RE: 
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. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was initially approved by the Director, Texas Service 
Center. On further review of the record, the director determined that the petitioner was not eligible 
for the benefit sought. Accordingly, the director properly served the petitioner with a notice of his 
intention to revoke the approval of the preference visa petition, and his reasons therefore. The 
director ultimately revoked the approval of the petition. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation engaged in the importing and exporting of motor parts and 
diesel fuel system parts. It seeks to employ the beneficiary as its marketing manager. 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)(l)(C), as 
a multinational executive or manager. 
The director revoked the petition on the basis of two independent grounds of ineligibility: 1) the 
petitioner failed to establish that the beneficiary was employed abroad in a managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a qualifying 
managerial or executive capacity. 
On appeal, counsel disputes the director's findings and submits a brief in support of her assertions. 
Upon further review, the AAO finds that the record contains sufficient evidence to establish that the 
beneficiary was more likely than not employed abroad in a qualifying managerial or executive 
capacity. Therefore, the remainder of this discussion will focus primarily on the beneficiary's 
proposed position with the U.S. entity. 
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 and 
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)(l)(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 first issue to be considered in this proceeding is whether, at the time the Form 1-140 was filed, 
the petitioner was able to employ the beneficiary in a managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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. 5 1 101(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. 
In support of the Form 1-140, the petitioner provided a letter dated February 12, 2002, which 
included the following statements describing the beneficiary's proposed employment: 
This position of [mlarketing [mlanager will work straight with the markets [sic] 
analysis in a level of public relations between the clients and the enterprise. The 
[mlarketing [mlanager is the person who coordinates the needs of the market and 
manages the updates and requests of a demanding clientele in the matter of the 
products commercialization. The control and the management of the items lists the 
inclusion of new products, according to the market research of different manufacturer 
sources, the knowledge of the available inventory in the plant of production . . . 
specially applied to the Central America area, that is the key-sector for the 
commercial aims of the [clompany. This position is responsible for the development 
of the export market of the company to the Central and South American markets. . . . 
[The beneficiary] will be responsible for the development of this [dlepartment and for 
the expansion of the parent [clompany . . . in the United States. She has been 
assigned the entire project to exercise full discretionary decision-making powers and 
management of the [mlarketing [dlepartment at the Florida's subsidiary. 
This position requires [the beneficiary] to establish the marketing strategies of the 
company, coordinating, organizing and overseeing all marketing matters exercising 
full responsibility for the [clompany's marketing policies. She will report to the 
Colombian main [clompany the measures and policies she will adopt. She will 
manage the [mlarketing [dlepartment as she considers necessary to carry out the 
business of [the petitioner], creating another business success such as the parent 
companies in Colombia. . . . 
On January 30, 2004, approximately 18 months after the petition had been approved, the director 
issued a notice of his intent to revoke the approval of the petition. The director provided a thorough 
explanation of the events that prompted his decision. Specifically, the director explained that the 
attorney of record who filed the petitioner's Form 1-140 and supporting documentation was 
convicted of several federal offenses related to the filing of fraudulent immigrant worker visa 
petitions. The director further explained that these circumstances caused U.S. Citizenship and 
Immigration Services (USCIS) to reevaluate the credibility of any immigration claim and supporting 
documents filed by the convicted attorney. Consequently, the director's notice included a 
comprehensive request for evidence, which instructed the petitioner to submit, inter alia, a 
description of the beneficiary's U.S. employment, including a list of her specific job duties, and the 
percentage of time the beneficiary is expected to spend performing each duty. The director 
expressly stated that the information provided should not list areas of responsibilities, but rather 
should include specific job duties. 
In response, the company's vice president, submitted a letter dated February 
24, 2004 on the petitioner's behalf. stated that the beneficiary possesses the technical 
knowledge required of her position and further claimed that the beneficiary has managerial authority 
over professional employees. 
 specified that the beneficiary's authority extends to 
professional and managerial staff employed abroad by the two entities that jointly own the petitioner. 
Additionally, 
 provided the following information about the beneficiary's duties in the 
United States: 
Production of marketing sales analysis reports to determine prospective customer 
needs and develop marketing plans to increase sales. 
Analysis of marketing data to show the parameters to get the best achievements about 
competitive pricing structures, industry trends and forecast of economic conditions 
for the U.S., Central and South America. 
General [cloordinator of [the mlarketing department of the entire [mlultinational 
[sltructure, hiring and training for marketing purposes and public relations personnel. 
Preparation of periodic reports on sales activities and the effectiveness of promotional 
campaigns of company's products. 
Management and direction of public relations. 
 Planning and execution of the 
company's public relation policies. 
Confer with staff and other departmental managers to direct and identify 
opportunities for modification or new products development that will improve the 
company's capabilities to meet client needs. 
Production and review of analysis reports 25% approx. 
Review of activity reports 25% approx. 
Management [mleetings 20% approx. 
Management of subordinate [mlanagers 30% approx. 
On June 6,2008, the director issued a decision revoking the prior approval of the petitioner's Form I- 
140. The director found that the above description of the beneficiary's U.S. employment was overly 
broad and failed to convey a meaningful understanding of the beneficiary's day-to-day duties. The 
director further observed that at the time the Form 1-140 was filed the petitioner had three 
employees, including the beneficiary, and found that the limited support staff at the time of filing 
indicates that the beneficiary would have been performing the marketing tasks. 
On appeal, counsel for the petitioner expresses her dismay at the fact that the current adverse 
decision is based on information that was present in the record of proceeding at the time of the 
petition's initial approval in August 2002. Counsel is confused as to how the director can now issue 
a finding of ineligibility when the same information resulted in a different finding when initially 
reviewed. Counsel asserts that the earlier finding of eligibility should not be revoked in the absence 
of a finding of fraud to justify the revocation. Counsel's assertion, however, is erroneous. By itself, 
the director's realization that a petition was incorrectly approved is good and sufficient cause for the 
Page 6 
issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 I&N Dec. 582, 590 
(BIA 1988). 
Furthermore, section 205 of the Act, 8 U.S.C. 5 1155, states: "The Attorney General may, at any 
time, for what he deems to be good and sufficient cause, revoke the approval of any petition 
approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
Thus, contrary to counsel's assertion, a finding of fraud is not a prerequisite for the revocation of a 
prior approval, so long as the circumstances meet the above criteria. Moreover, with regard to 
counsel's mention of guidelines issued to U.S. consular posts by the State Department with regard to 
revoking prior approvals, this information merely services as guidelines for service personnel; it 
does not establish judicially enforceable rights. An agency's internal personnel guidelines "neither 
confer upon [plaintiffs] substantive rights nor provide procedures upon which [they] may rely." Loa- 
Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 
1264 (5th Cir. 1987)). There is no evidence or indication that the guidelines to which counsel refers 
on appeal are enforceable in a court of law. Accordingly, the AAO will continue by discussing the 
merits of the director's revocation. 
In the present matter, the director expressly stated that the petitioner failed to provide an adequate 
description of the beneficiary's proposed U.S. employment, finding that the lack of detail regarding 
the beneficiary's day-to-day job duties precludes a determination that the beneficiary would be 
employed in a managerial or executive capacity. The need for a detailed description of the job duties 
entailed in the proposed employment is expressly stated at 8 C.F.R. tj 204.5(j)(5). Precedent case 
law places further emphasis on this regulatory requirement, establishing that 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), afd, 905 F.2d 41 (2d. Cir. 1990). Although counsel attempts to 
supplement the record on appeal by providing a more comprehensive description of the beneficiary's 
U.S. employment, her description fails to overcome the director's adverse findings, as there is no 
indication that the supplemental information counsel provides on appeal applies to the beneficiary's 
job duties at the time of filing. Rather, counsel's statements are in the present tense, thereby 
indicating that they apply to the duties the beneficiary is currently performing. It is important to 
note, however, that eligibility must be established at the time of filing. A petition cannot be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). As properly determined by the director, the 
description of the beneficiary's U.S. employment that was submitted at the time of filing is deficient 
in that it lacks the degree of specificity that is necessary to determine the nature of the job duties the 
beneficiary was expected to perform. 
Although a supplemental job description was provided by the petitioner's vice present in response to 
the notice of intent to revoke, that description was also deficient. claimed that 25% of 
the beneficiary's time was spent generating and reviewing analysis reports to determine customer 
needs and to make an effective marketing plan. 
 However, there is no explanation as to how 
producing reports, which suggest the underlying need to conduct market research, can be deemed a 
qualifying task. also stated that the beneficiary is the marketing department coordinator, 
which includes hiring and training public relations employees for marketing purposes. However, 
there is no information that would clarify what specific tasks the beneficiary planned to assume in 
order to fulfill her responsibility to coordinate the company's marketing department, which appeared 
to consist of a single employee, i.e., the beneficiary, at the time the Form 1-140 was filed. A further 
underlying question, in light of mention of public relations personnel, is who within 
the petitioner's organizational hierarchy was available to perform the public relations tasks at the 
time of filing. The petitioner appears to have had no one other than the beneficiary herself to carry 
out these seemingly non-qualifying operational tasks. That being said, the petitioner provided no 
details elaborating as to the means by which the beneficiary planned to manage and direct public 
relations. This general job responsibility is not self-explanatory, particularly when the petitioner 
appears to have had no public relations employees at the time of filing. 
In light of the above, the job description falls far short of establishing that the beneficiary's job duties 
at the time of filing would have been primarily within a qualifying managerial or executive capacity. 
Next, the AAO will address counsel's claim that the beneficiary's subordinates include five 
employees from Cali, Colombia, two employees from Venezuela, and another seven employees from 
Bogota, Colombia. Counsel asserts that this scenario is normal given the "international reach of the 
petitioner." She further states that it is common for multinational companies such as the petitioner to 
utilize foreign employees for financial benefit. However, the record shows that the petitioner is a 
separately incorporated entity and therefore exists apart from the two entities that joined together in 
order to create it. As such, for purposes of establishing that the beneficiary is acting in a managerial 
or executive capacity, merely claiming that the beneficiary has been and continues to manage 
foreign employees is insufficient. The petitioner must submit supporting documentary evidence in 
order to meet the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Thus, if the petitioner claims that it derives some benefit from services that are provided by 
employees of other institutions, there must be evidence showing that these employees are somehow 
compensated for the work that they do. This evidence is not only crucial to corroborate the claim as 
to whom the beneficiary supervises, but it is also significant for the purpose of establishing whether, 
at the time of filing, the petitioner had staff, comprised of either in-house employees or outside 
contractors, to perform the daily operational tasks that are associated with the department or function 
the beneficiary was hired to manage. That being said, the AAO notes that in reviewing the relevance 
of the number of employees a petitioner has, federal courts have generally agreed that USCIS "may 
properly consider an organization's small size as one factor in assessing whether its operations are 
substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 
469 F.3d 13 13, 1316 (9th Cir. 2006) (citing with approval Republic ofTranskei v. INS, 923 F.2d 175, 
178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 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, 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. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 
15 (D.D.C. 2001). 
In the present matter, the director pointed out that at the time the Form 1-140 was filed, the record 
showed that the petitioner had only three employees, including the beneficiary. The director also 
expressly stated that the petitioner's limited staffing at the time of filing led USCIS to question who 
was available to perform the non-qualifying operational tasks. As stated above, eligibility must be 
established at the time of filing. A petition cannot be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. at 49. 
Thus, while the petitioner's current staffing may be relevant for the purpose of determining whether 
the petitioner maintained eligibility beyond the date the petition was approved, the petitioner must 
first establish that it was eligible for the benefit sought at the time the petition was initially filed. 
Without probative evidence showing that the petitioner compensated anyone outside of the 
employees listed in its quarterly wage reports, the record shows that the petitioner had a total of three 
employees at the time of filing.' Although the petitioner indicated at the time of filing that it 
intended to hire four additional employees, as previously stated, eligibility must be established at the 
time of filing. Id. Therefore, the director was justified in questioning the petitioner's ability to 
relieve the beneficiary from having to primarily perform non-qualifying operational tasks on a daily 
basis when its total staff at the time of filing was comprised of three people. Given the deficient job 
description and the limited support staff, counsel's statements do not establish that the petitioner was 
eligible at the time the petition was initially filed. 
Therefore, the approval of the petition will remain revoked for the above stated reasons. 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. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. 
I 
 See Part 5 of the Form 1-140, which was filed by the petitioner on February 28, 2002.