dismissed EB-1C Case: Aviation

MATTER OF C-P-A- LTD. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 28, 2015 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an international airline based in Hong Kong, seeks to employ the Beneficiary as a 
commander/pilot-in-command under the immigrant classification of a multinational executive or 
manager. See Immigration and Nationality Act (the Act) § 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C). 
The Director, Nebraska Service Center, denied the petition. The matter is now before us on appeal. 
The appeal will be dismissed. 
I. 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 the alien 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 only to 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 Form I-140 to classify a beneficiary under section 203(b)(l)(C) of 
the Act as a multinational executive or manager. The regulation at 8 C.P.R. § 204.50)(5) states: 
Matter of C-P-A- Ltd. 
No labor certification is required for this classification; however, 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 letter must clearly describe the duties to be performed by 
the alien. 
Section 101(a)(44) ofthe Act, 8 U.S.C. § 1101(a)(44), provides: 
(A) 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. 
(B) 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. 
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(b)(6)
Matter of C-P-A- Ltd 
Finally, 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. Section 101 (a)( 44 )(C) of the Act. 
II. ISSUE ON APPEAL 
The sole issue on appeal is whether the Petitioner has established that the Beneficiary was employed 
abroad, or will be employed in the United States, in a qualifying managerial or executive capacity. 
A. Facts 
The petition was filed on January 10, 2104 and it was accompanied by supporting documents , 
including a letter from the Petitioner 's senior vice president for the Americas , describing 
the Beneficiary 's role as captain/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 "is the most senior officer on a wide-body Boeing 777 
passenger airplane. He is ultimately responsible for all decisions made during the flight, and has 
virtually total discretion to use his own judgment in ensuring the safe navigation of the plane." The 
Petitioner also 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 Petitioner also stated that the Beneficiary directly 
supervises an In-Flight Service Manager who supervises the flight attendants. An organizational 
chart echoes this arrangement. 
The Petitioner stated that the Beneficiary is "uniquely well-qualified to perform the stated 
managerial duties" and that "throughout his 22 years of employment , and 10 years in a specifica11y 
managerial role" the Beneficiary has proven his ability to perform the duties required by the 
Petitioner. The Petitioner stated that the Beneficiary is responsibl e 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 captain/pilot-in-command ." 
Regarding the Beneficiary 's employment abroad, the Petitioner stated the Beneficiary has been 
employed as captain/pilot-in-command of its Boeing 777 aircraft based out of Hong Kong flying 
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(b)(6)
Matter o.fC-P-A- Ltd. 
long haul international routes since 2001. The Petitioner stated that the Beneficiary's duties abroad 
and in the United States are the same and are "managerial in nature." 
The Director issued a request for evidence on June 23, 2014. The Director instructed the Petitioner 
to provide additional details about the Beneficiary ' s specific daily tasks. In response, the Petitioner 
submitted a new letter that essentially paraphrased earlier letter and asserted that the 
Beneficiary 's "duties and responsibilities cannot be divided as they would in a traditional workspace, 
because he spends his entire time on the aircraft commanding and flying the plane." 
The Petitioner responded with a letter dated September 9, 2014, reiterating much of the same 
information previously provided. The Petitioner stated that the Beneficiary was employed abroad 
from 1991 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 captain/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 
acknowledged the Director's RFE but explained that it could not provide a list of employees or their 
salaries because the job is not a traditional work environment 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 resubmits 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 October 29, 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." 
B. Analysis 
Upon review, and for the reasons stated below, we find that the Petitioner did not establish that the 
Beneficiary's proposed position with the petitioning entity or his former position abroad can be 
classified as managerial or executive. 
When examining the executive or managerial capacity of a given position, we review the totality of 
the record, starting first with the description of the Beneficiary's proposed job duties with the 
petitioning entity. See 8 C.P.R. § 204.5(j)(5). In this matter, the Petitioner provided a general 
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Matter of C-P-A- Ltd. 
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 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), 
aff'd, 905 F.2d 41 (2d. Cir. 1990). We then consider the Beneficiary's job description in the context 
of the Petitioner's organizational structure, the duties of the Beneficiary's subordinates, and any 
other relevant factors that may contribute to a comprehensive understanding of the Beneficiary's 
actual duties and role within the petitioning entity. 
The Petitioner asserts 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) ofthe Act, 8 U.S.C. § 1101(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.P.R. 
§ 204.50)( 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.P.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 did not 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 detailed organizational charts 
Matter of C-P-A- Ltd. 
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 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). Here, we 
acknowledge the critical nature of the Beneficiary's duties as commander of a commercial passenger 
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 
101(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 did not provide a detailed organizational chart for the foreign entity or 
provide position descriptions for the foreign entity'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 captain/pilot-in-command prior to transferring to the U.S. in the same 
role, we find that the Petitioner did not 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 101(a)(44)(B) of the 
Act, 8 U.S.C. § 1101(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 
Matter of C-P-A- Ltd. 
and the Beneficiary must primarily focus on the broad goals and policie~ 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." Id. 
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 
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 did 
not 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 101(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. 604. 
We also acknowledge that USCIS has previously granted the Beneficiary classification as a 
nonimmigrant L-lA intracompany transferee in a managerial or executive capacity. USCIS denies 
many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 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 Bros. Co. Ltd. v. Sava, 724 F. Supp. 1103. Examining the 
consequences of an approved petition, there is a significant difference between a nonimmigrant 
L-1A visa petition, 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 of the 
Act, 8 U.S.C. §§ 1154 and 1184; see also§ 316 ofthe 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 
Matter of C-P-A- Ltd. 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 597. In both the request for 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 
Accordingly, we find that the Petitioner has not established that the Beneficiary was employed 
abroad, or will be employed in the United States, in a qualifying managerial or executive capacity. 
For this reason, USCIS cannot approve this petition. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with 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, the Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-P-A- Ltd., ID# 13731 (AAO Sept. 28, 2015) 
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