dismissed EB-1C Case: Business Administration

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvac} 
PUBL1CCOPY 
FILE: OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration SelVices 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Date: DEC 29 2010 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation that seeks to employ the beneficiary as its executive 
administrator/coordinator. Accordingly, the petitioner endeavors to classifY the beneficiary as an 
employment-based immigrant pursuant to section 203 (b)(1 )(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § -1153(b)(1)(C), as a multinational executive or manager. 
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 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. 
In the present matter, the director denied the petition based on two independent grounds of ineligibility: 
1) the petitioner failed to establish that the beneficiary was employed abroad in a qualifYing managerial or 
executive capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a 
managerial or executive capacity. With regard to the beneficiary's employment abroad, the director pointed to 
considerable inconsistencies concerning the beneficiary's position title and placement within the foreign 
entity's organization. The director observed that while the organizational chart that was submitted in support 
of a previously filed Form 1-140 (with receipt n~ as well as the letter that was submitted 
in support of the instant petition both identified the beneficiary's position abroad as that of operational 
manager, the petitioner's response to the director's request for evidence (RFE), a notice that was issued on 
January 22, 2009, indicated that the beneficiary was a vice president in charge of the operations, purchasing, 
and material supply departments. The director further pointed out that the foreign entity's organizational chart 
Page 3 
identified someone other than the beneficiary as vice president of the material supply department and did not 
include a separate purchasing department at all. 
On appeal, counsel disputes the denial and supplements the record with additional information regarding the 
beneficiary's proposed employment. The petitioner did not, however, address the director's adverse findings 
with regard to the beneficiary's employment abroad. Therefore, the petitioner has failed to overcome the first 
ground cited as a basis for denial and the appeal will be dismissed on that initial ground without further 
discussion of the beneficiary's employment abroad. 
Accordingly, the AAO will address the second ground that was cited as a basis for denial, i.e., the 
determination that the petitioner failed to establish that it would employ the beneficiary in the United States in 
a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component ofthe 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 III 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; 
Page 4 
(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, president of the petitioning entity, submitted a letter dated 
December 18, 2007 on the petitioner's behalf. _ attributed the following list of duties and 
responsibilities to the beneficiary's proposed position with the U.S. entity: 
1. Making policies and business plan of development and objections of the organization; [sic] 
consists with [sic] Presidents of company in [the] U.S.A., Xiamen 
and Hong Kong; confers with membership of [the] executive committee to plan business 
projects re: new products development, marketing development, investment program and 
planning related to production, sales and advanced technology and material; 
2. I administrative support by conducting research, prepares statistic reports 
sidiaries in the world, handles information requested by the 
•••••••••• [p ]rovides advisement or suggestion III 
improving the administrative coordination during contract-projects procedures; 
3. Participates in developing organizational policies to coordinate functions and operations 
among _ subsidiaries in the world; establishes responsibilities and procedures for 
attaining objectives; [r]eviews activity reports of managerial person [sic] in [the petitioning 
entity] and financial statements of accountants. Makes report [sic] to [the] Chairman, 
president and Board of Directors to determine progress and status in attaining objectives. 
4. Reviews financial and investment programs and provide[s] analysis as funding for new and 
continuing operations to maximize retum[s] in investments and to increase productivity in 
China and strength [en] the competitive [sic] in North America[n] market and European 
market; 
5. Designs and investigates the improvement policies of the employees['] training, performances 
reviewing and evaluating, including making decision of hiring, promotion and termination of 
employment, including reviewing wage surveys with the labor market and a determination of 
[the] competitive wage rate, pension plan, [and] insurance plan; 
6. Plans and develops the public relations policies designed to improve the company's imagine 
[sic] and relations with customers, associates and employees. Review and evaluate the 
relationships; 
7. Plans and arranges the telephonic conference among the directors; [d] irects and coordinates 
association functions, such as conventions, exhibits, [and] conferences among_ 
subsidiaries, [sic] to present membership and committee proposals on goals; 
Page 5 
8. Conduct the marketing research in the U.S. market, Asian market and European market. 
Produce the marketing development strategies for Canada and [the] Caribbean [a]rea. Create 
the marketing cooperative policies .... 
A copy of the petitioner's organizational chart was also provided in support of the petition. The chart shows 
the company president at the top of the hierarchy with a vice president as his direct subordinate. The vice 
president is shown as overseeing a sales manager, the beneficiary's position of executive marketing 
coordinator, and a chief financial officer. The remainder of the chart includes three sales positions, a 
receptionist, and a warehouse employee, all under the supervision of the sales manager, and an accountant 
under the supervision of the chief financial officer. The beneficiary is not depicted as having any 
subordinates under his supervision. 
On January 22, 2009, the director issued an RFE instructing the petItIOner to provide a more detailed 
description of the beneficiary's proposed employment with the U.S. entity. The petitioner was asked to list 
the beneficiary's actual day-to-day job duties and to supplement this list with an estimate of the percentage of 
time that would be allocated to each job duty. 
In response, the petitioner provided an updated organizational chart showing the beneficiary as that of 
executive coordinator and purchase manager overseeing operations in China and Hong Kong as a well as a 
purchaser working in the U.S. office. The petitioner also provided a list of duties and responsibilities 
associated with the beneficiary's secondary role as purchase manager. As the director restated that list in the 
June 26, 2009 decision, the AAO need not repeat the same information. 
With regard to the additional description of job duties, the petitioner submitted a letter dated March 3, 2009, 
confirming that the beneficiary's primary responsibilities are those associated with his position as executive 
coordinator. The petitioner instructed the director to review the job description submitted earlier in support of 
the Form 1-140 and declined to comply with the director's request for a supplemental job description 
containing a more detailed list of job duties and time allocations indicating how much time the beneficiary 
would spent carrying out each of his assigned tasks. It is noted that 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). 
Accordingly, the director denied the petition, pointing out that the beneficiary's primary and secondary job 
descriptions both include operational tasks and that without the requested percentage breakdown establishing 
the amount of time that the beneficiary would spend performing non-qualifying tasks, U.S. Citizenship and 
Immigration Services (USCIS) would be unable to conclude that the beneficiary would allocate the primary 
portion of his time to managerial- and/or executive-level tasks. The director also cautioned the petitioner 
against making material changes to the petition in an effort to establish eligibility. 
On appeal, both counsel and _ president of the petitioning entity, provide a supplemental job 
description and percentage breakdown per the director's earlier request. In a letter dated August 11,2009, Mr. 
_ explains that the beneficiary commenced his secondary position as a purchasing manager at the end of 
2008 and that the additional set of job duties were provided for the purpose of updating information about the 
beneficiary'S position with the U.S. entity. 
With regard to the new information about the beneficiary's secondary position, the AAO notes that the 
purpose of an RFE is to elicit further information that clarifies whether eligibility for the benefit sought has 
Page 6 
been established. 8 C.F.R. § 103.2(b)(8). The AAO further notes that the petitioner must establish eligibility 
at the time of filing, not 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 the supplemental information addressed 
additional job duties that were not included in the beneficiary's proposed job assignment, such information is 
irrelevant in this matter, as it does not address the petitioner's eligibility at the time of filing the petition. A 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, or its associated job responsibilities. The information provided 
by the petitioner in its response to the director's request for further evidence did not clarifY or provide more 
specific information regarding the original duties of the position, but rather added new generic duties to the 
job description. Therefore, the analysis of this criterion will be based on the job description submitted with 
the initial petition. 
As properly determined by the director in the June 26, 2009 decision, the initial job description was deficient, 
as it was too vague and failed to establish that the beneficiary would primarily perform tasks within a 
qualifYing managerial or executive capacity. For instance, the petitioner indicated that the beneficiary would 
plan and develop marketing, organizational, and public relations policies. While the petitioner briefly 
indicated that the beneficiary would confer with members of the executive committee in order to make 
business development policies, this does not explain what specific daily tasks the beneficiary would perform 
in his efforts to meet the demands of his role as a policy maker. Published case law establishes 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), affd, 905 F.2d 41 (2d. Cir. 1990). Without a clear statement delineating the specific 
job duties that would comprise the proposed employment, the AAO is unable to determine that the primary 
portion of the beneficiary's time would be spent within a qualifYing capacity. 
Furthermore, the beneficiary'S job description included several job duties that were indicative of operational 
tasks and therefore could not be deemed as qualifYing within a managerial or executive capacity. For 
instance, the petitioner specifically indicated that the beneficiary would provide administrative support by 
conducting research and preparing reports and devise market strategies by researching the U.S., Asian, and 
European markets, arrange for telephone conferences among directors, and present proposals to company 
executives. However, despite the director's express instructions in the RFE, the petitioner failed to provide 
any information specifYing precisely how much of the beneficiary'S time would be allocated to performing 
these non-qualifYing operational tasks. While the AAO acknowledges that no beneficiary is required to 
allocate 100% of his time to managerial- or executive-level tasks, the petitioner must establish that the non­
qualifYing tasks the beneficiary would perform are only incidental to his/her proposed position. 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. 1988). 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. § 204.50)(5). In the present matter, the job description that was 
initially provided in support of the petition consisted of vague business objectives and non-qualifYing tasks. 
Although given ample opportunity to supplement the record with additional information regarding the 
beneficiary'S proposed job duties, the petitioner declined to provide the requested information in response to 
the RFE and instead chose to provide this information on appeal after an adverse decision had been issued. 
However, as previously stated, failure to submit requested evidence that precludes a material line of inquiry 
J ' • • 
-Page 7 
shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Where, as here, a petitioner has been put 
on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the 
AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 
(BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the 
submitted evidence to be considered, it should have submitted the documents in response to the director's 
request for evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency of 
the evidence submitted on appeal. Consequently, the AAO cannot conclude that the beneficiary would be 
employed in the United States in a qualifYing managerial or executive capacity and the appeal will be 
dismissed. 
As a final note, counsel makes a brief reference to the petitioner's current approved L-1 employment of the 
beneficiary. The AAO notes, however, that 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. USCIS is 
not required to assume the burden of searching through previously provided evidence submitted in support of 
other petitions to determine the approvability of the petition at hand in the present matter. Moreover, the 
approval of a nonimmigrant petition in no way guarantees that USCIS will approve an immigrant petition 
filed on behalf of the same beneficiary. 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 at 25; 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). 
Furthermore, if a previous nonimmigrant petition 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 USCIS 
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). 
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 a nonimmigrant petition 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). 
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. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.