dismissed EB-1C Case: Aviation

(b)(6)
DATE: JUL 0 1 2015 
IN RE : Petitioner : 
Beneficiary : 
FILE#: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizens hip and Immigrati on Serv ices 
Admini strati ve Appeals Office 
20 Massac husetts Ave .. N.W .. MS 2090 
Washingto n. DC 205 29-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed is the non-pr ecedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 1 03 .5. 
Motions must be filed on a Notice of Appeal or Motion (Form J-290B) within 33 days of the date of this 
decision . The Form I-290B web page (www.uscis .gov/i-290b) contains the latest information on fee , filing 
location , and other requirements . Please do not mail any motions directly to the AAO. 
T;tu, 
W:-Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center denied the immigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is an international airline based in providing international passenger and 
cargo services with 29,000 employees worldwide and a gross annual income of $12 billion. The 
petitioner seeks to employ the beneficiary as commander/pilot-in-command for its Boeing 777 
aircraft. 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 denied the petition, concluding that the petitioner did not establish: ( 1) that the 
beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity; and (2) that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity. 
On appeal, the petitioner submits a brief disputing the director's conclusions. 
I. THE LAW 
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 a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form I-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 
(b)(6)
NON-PRECEDENTDECI~ON 
Page 3 
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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization , or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory , professional , or 
managerial employees , or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed ; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization , component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making ; and 
(b)(6)
Page 4 
NON-PRECEDENT DECISION 
(iv) receives only general supervisiOn or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity , USCIS must take into account the reasonable needs of the organization , in 
light ofthe overall purpose and stage of development ofthe organization. Section 101(a)(44)(C) of 
the Act. 
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 
The petition was filed on December 23, 2013 and it was accompanied by supporting documents, 
including a letter from the petitioner describing the beneficiary 's role as commander/pilot-in­
command of its Boeing 777 aircraft. The petitioner stated that the beneficiary held the position of 
commander/pilot-in-command while employed by the petitioning airline abroad and would continue 
in that position in the United States. 
The petitioner stated that the beneficiary directly manages a cockpit crew of two first officers and 
one second officer who are responsible for assisting the beneficiary and carrying out duties in 
accordance with normal operating procedures. The petitioner stated that the beneficiary would be in 
command of the aircraft at all times but could instruct the first officer to take command for "short 
periods" during the flight. According to the petitioner, the cockpit crew's duties include confirming 
the safe navigation of the aircraft, maintaining a continuous and independent check of the aircraft's 
geographical position, reporting problems to the beneficiary and volunteering advice, information or 
assistance to ensure the safety of the flight. The in-flight service manager manages 14 to 16 flight 
attendants. The petitioner stated that the beneficiary is "uniquely well-qualified to perform the 
stated managerial duties" and that "throughout his 19 years of employment, and 12 years in a 
specifically managerial role" the beneficiary has proven his ability to perform the duties required by 
the petitioner. The petitioner stated that the beneficiary is responsible for the mentoring, on-going 
training, and development of less experienced crew members. Specifically, the petitioner stated 
"management of further training is a critical and mandatory requirement of taking on the 
responsibility of commander /pilot-in-command." 
Regarding the beneficiary 's employment abroad, the petitioner stated the beneficiary has been 
employed as commander /pilot-in-command of its Boeing 777 aircraft based out of 
flying long haul international routes since 1996. The petitioner stated that the beneficiary 's duties 
abroad and in the United States are the same and are "managerial in nature." 
On June 30, 2014, the director issued a request for evidence (RFE) informing the petitioner of 
various deficiencies and requesting additional supporting evidence. The director addressed , in part, 
the beneficiary's proposed and prior position and instructed the petitioner to provide evidence such 
as a statement listing the beneficiary's specific daily job duties and the percentage of time the 
beneficiary would spend carrying out each duty. The director requested a list of the employees on 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
the beneficiary's team, their specific duties, educational level, and salary information. The director 
also requested detailed organizational charts. 
The petitioner responded with a letter dated September 8, 2014, reiterating much of the same 
information previously provided. The petitioner stated that the beneficiary was employed abroad 
from 1996 until 2011 and that he was employed as a captain/pilot-in-command abroad and will 
continue in that role in the United States. The petitioner stated that the commander/pilot-in­
command is designated to fly a specific flight and that in this role the beneficiary had been and 
would be wholly responsible for the navigation of the aircraft and the safety of the passengers 
aboard. The petitioner explained that the beneficiary "spends his entire time on the aircraft 
commanding and flying the plane" and that he has full discretion and full authority over all crew 
members. The petitioner stated that the beneficiary executes his duties primarily according to 
procedures developed by the airline but he has the authority to vary procedures when necessary to 
ensure passenger safety. The petitioner acknowledged the director 's RFE but explained that it could 
not provide a list of employees or their salaries because the job is "nontraditional " in that the 
beneficiary 's crew changes, having different crews for different international flights. In addition to 
the letter, the petitioner provided pay documentation for the beneficiary and a generic organizational 
chart for a typical Boeing 777/747 cabin crew that corroborates the basic positions as identified in 
the petitioner's letter. 
On September 30, 2014, the director denied the petition after finding that the petitioner did not 
establish that the beneficiary had been or would be employed in a qualifying capacity. The director 
found that the petitioner did not sufficiently respond to the RFE or otherwise establish that the 
beneficiary would primarily perform managerial or executive duties. The director also found that the 
petitioner provided insufficient evidence to establish that the beneficiary supervises and controls the 
work of other supervisory , professional or managerial employees. 
On appeal, the petitioner asserts that the director erred and that the beneficiary's duties as 
commander/pilot-in-command are consistent with the statutory definition of "executive capacity." 
III. ISSUES ON APPEAL 
Upon review, and for the reasons stated below, we find that the petitioner did not establish that the 
beneficiary was employed abroad or would be employed in the United States in a qualifying 
managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary , we will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). In this matter, the petitioner 
provided a general description of the beneficiary's role as commander of a large commercial 
passenger aircraft which included piloting the plane, and managing , mentoring and training crew 
members. The petitioner 's vague description provided little insight into how the beneficiary would 
spend his time during the flight, nor does it identify any specific tasks he would perform other than 
piloting the plane. Moreover it is unclear whether the beneficiary has any responsibilities other than 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
those directly related to flight and pre-flight activities, such as training activities conducted on the 
ground. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y . 1989), 
af['d , 905 F .2d 41 (2d. Cir. 1990). 
Nevertheless , the petitioner 's assertion that the beneficiary spends his time commanding and flying 
the plane while allowing the first officer to take command for "short periods" leads us to conclude 
that the beneficiary would spend the majority of his time, or even substantially all of his time, flying 
the aircraft, a non-managerial duty. The director specifically requested a description of the 
beneficiary's specific duties and a percentage of time he would spend on those duties but the 
petitioner did not comply with this request. Therefore , although the petitioner claimed that the 
beneficiary has other duties, we cannot determine that he has been or would be primarily employed 
in a qualifying managerial capacity , as claimed . Failure to submit requested evidence that precludes 
a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
The statutory definition of "managerial capacity" allows for both "personnel managers " and 
"function managers. " See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 110l(a)(44)(A)(i) 
and (ii). Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional , or managerial employees. Contrary to the common understanding of the 
word "manager," the statute plainly states that a "first line supervisor is not considered to be acting 
in a managerial capacity merely by virtue of the supervisor 's supervisory duties unless the 
employees supervised are professional. " Section 101(a)(44)(A)(iv) of the Act; 8 C.F.R. 
§ 204.5(j)( 4)(i). If a beneficiary directly supervises other employees , the beneficiary must also have 
the authority to hire and fire those employees , or recommend those actions , and take other personnel 
actions. 8 C.F.R. § 204.5(j)(2). According to the record, the beneficiary directly supervised his 
cockpit crew and the in-flight service manager. while commander during a flight, but there is 
insufficient evidence to establish the beneficiary has the authority to hire and fire employees, 
recommend those actions or take any other personnel actions. 
In addition , we find that the petitioner failed to provide information regarding its employees or a 
detailed organizational chart, as requested by the director. In response to the director's request, the 
petitioner stated that the composition of the beneficiary 's flight crews fluctuates ; however , the 
petitioner provided no additional information regarding employees or organizational charts in 
support of its petition. Failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the beneficiary perfonns the high level responsibilities that are specified in the definitions . 
Second, the petitioner must prove that the beneficiary primaril y 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). Here, we 
acknowledge the critical nature of the beneficiary 's duties as commander of a commercial passenger 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
plane, and his decision-making authority within the context of each flight. However, as discussed 
above, the petitioner's statements reflect that the beneficiary spends nearly all of his time 
commanding and flying the plane, allowing the first officer to relieve him for only short periods. 
We agree with the director 's determination that if the beneficiary is primarily piloting the aircraft he 
cannot also be primarily performing qualifying managerial or executive duties. 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 
1 01(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm'r 1988). 
These same deficiencies apply to the petitioner's description of the beneficiary ' s former role and 
duties as a commander and pilot-in-command with the company's overseas operations. As noted by 
the director, the petitioner failed to provide a detailed organizational chart for the foreign entity or 
provide position descriptions for the foreign enttiy's employees. Because the petitioner relied upon 
the same evidence to establish that the beneficiary has been employed in a managerial or executive 
capacity in his role abroad as a commander/pilot-in-command prior to transferring to the U.S. in the 
same role, we find that the petitioner failed to submit evidence sufficient to establish that the 
beneficiary had been employed in a qualifying capacity for all of the reasons discussed above. 
On appeal, the petitioner disagrees with the director's decision and asserts that the beneficiary 's 
duties fall within the regulatory definition for "executive capacity." Specifically , the petitioner 
asserts that the beneficiary "directs the management " of the flight from pre-takeoff to arrival, has 
absolute discretion over activities during flight, exercises authority which includes "establishing 
operating procedures and process to be followed and ensuring procedures and processes are 
followed." The petitioner asserts that the beneficiary is the ultimate authority onboard having no 
direction or supervision in the course of carrying out his duties. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy , including major components or functions of the 
organization , and that person's authority to direct the organization. Section 10l(a)(44)(B) of the 
Act, 8 U.S.C. § I101(a)(44)(B) . Under the statute, a beneficiary must have the ability to "direct the 
management " and "establish the goals and policies" of that organization. Inherent to the definition , 
the organization must have a subordinate level of managerial employees for the beneficiary to direct 
and the beneficiary must primarily focus on the broad goals and policies of the organization rather 
than the day-to-day operations of the enterprise. An individual will not be deemed an executive 
under the statute simply because they have an executive title or because they "direct" the enterprise 
as the owner or sole managerial employee . The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors , or stockholders of the organization ." !d. 
In this matter, the petitioner asserts on appeal that the beneficiary is "vested with executive authority 
at all times" when performing his duties. While this assertion may be true it does not establish the 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
beneficiary in an executive capacity where the record indicates that his primary duty is piloting the 
plane. Further, the petitioner's assertion that the beneficiary's duties meet the elements of the 
statutory definition is not persuasive, as the record establishes that the beneficiary has authority to 
ensure the crew follows established policies and procedures but it does not support the petitioner's 
assertion that the beneficiary establishes goals, policies and procedures , aside from emergency 
decision making. Furthermore , we note and agree with the director 's finding that the petitioner 
failed to provide an organizational chart depicting the beneficiary 's supervisor or the beneficiary 's 
position within the organization's hierarchy . Again, failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying . the petition. 8 C.F.R. § 
103.2(b)(14). 
We acknowledge that the regulations do not require one to "constantly perform executive acts" since 
no beneficiary is required to allocate 100 percent of his time to managerial- or executive-level tasks ; 
however the petitioner must establish that any non-qualifying tasks the beneficiary performs are 
only incidental to the position. Again, 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 10l(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); See also Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Accordingly, we conclude that the petitioner did not establish that it would employ the beneficiary in 
a qualifying managerial or executive capacity or that the beneficiary was employed in a qualifying 
managerial or executive capacity abroad. Therefore , this petition cannot be approved. 
IV. NONIMMIGRANT APPROVALS 
We acknowledge that the beneficiary has been granted classification as a nonimmigrant L-lA 
intracompany transferee in a managerial or executive capacity. It must be noted that many 1-140 
immigrant petitions are denied after USCIS approves prior nonimmigrant I -129 L-1 petitions. See, 
e.g. , Q Data Consulting , Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003) ; IKEA US v. US Dept . of' 
Justice , 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 
(E.D.N.Y. 1989). Examining the consequences of an approved petition, there is a significant 
difference between a nonimmigrant L-1 A visa classification, which allows an alien to enter the 
United States temporarily , and an immigrant E-13 visa petition, which permits an alien to apply for 
permanent residence in the United States and, if granted, ultimately apply for naturalization as a 
United States citizen. C.f §§ 204 and 214 ofthe Act, 8 U.S.C. §§ 1154 and 1184; see also§ 316 of 
the Act, 8 U.S.C. § 1427. 
If the previous nonimmigrant petitions were approved based on the same evidence that is contained 
in the current record, such approvals would constitute material and gross 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, e.g Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). In both the request for 
(b)(6)
NON-PRECEDENT DECJ.<)JON 
Page 9 
evidence and the final denial, the director clearly articulated the objective statutory and regulatory 
requirements and applied them to the case at hand. As discussed, the beneficiary's primary 
performance of non-managerial and non-executive duties precludes a finding that he has been or 
would be employed in a qualifying managerial or executive capacity. 
V. CONCLUSION 
The pet1t10n \Viii be denied and the appeal dismissed for the above stated reasons, \vith each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it is 
the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.