dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: SEP 1 5 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
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)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its vice president. 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. 
The director denied the petition based on two grounds of ineligibility. The director determined that 1) the 
petitioner failed to establish that the beneficiary would be employed in the United States in a managerial or 
executive capacity and 2) the petitioner failed to establish that it had the ability to pay the beneficiary's 
proffered wage as of the date the petition was filed. 
On appeal, counsel disputes the director's findings and provides an appellate brief accompanied by additional 
supporting documentation in an effort to overcome the grounds for denial. After reviewing the supplemental 
documentation, the AAO finds that the petitioner has submitted sufficient evidence establishing its ability to 
pay and has therefore overcome the second ground that served as a basis for denial. As such, this decision 
will address the beneficiary's prospective employment with the U.S. entity as the remaining ground cited in 
the director's decision. 
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. 
Page 3 
The primary issue in this proceeding is whether the petitioner provided sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 10 1 (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 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 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; 
(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 I-I of the petitioning entity, submitted a 
provided the following statements letter dated October 14, 2008 on the petitioner's 
describing the beneficiary's proposed employment with the u.s. entity: 
Page 4 
[The beneficiary] has continued to undertake the executive responsibilities of Vice-President 
for us. [He] is responsible for managing the entire company operation; he has the ultimate 
authority over the managerial personnel. He hires and dismisses the employees under his 
supervision; he is also fully responsible for the financial viability of the company. He 
prepares budgets and financial reports; [sic] and approves budget expenditures. He plans, 
directs and coordinates operational activities at the highest level of management with the help 
of subordinate managers and establishes internal control procedures .... 
The petitioner provided a quarterly federal tax return and a federal quarterly report for the second quarter of 
2008, both showing five employees. The petitioner also claimed five employees at Part 5, No.2 of the Form 
1-140. 
~port ofthe Form 1-140, the petitioner provided an opinion letter dated June 16,2008 from_ 
.__.a professor of management and information systems at the Seattle Pacific University's School of 
Business and Economics. _ concluded that the beneficiary's position with the foreign entity and his 
proposed position with the petitioning entity both fit the definition of executive capacity and laid out the 
reasons for his assertions. 
In a decision dated July 7, 2009, the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary's proposed employment would be within a qualifying managerial or executive 
capacity. The director found the proposed job description to be overly vague, consisting primarily of general 
job responsibilities and lacking a definitive description of the beneficiary's specific job duties. 
On appeal, counsel challenges the director's reference to the published decision of Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990), pointing out that the petitioner 
in the present matter seeks immigrant visa classification while the petitioner in the cited decision sought to 
classify the beneficiary as a non-immigrant. 
The AAO finds counsel's argument unpersuasive. Although there are understandably inherent differences 
between the immigrant classification sought in the present matter and the non-immigrant classification sought 
in the Fedin Bros. case, both visa classifications rely on the same definitions of managerial and executive 
capacity. The cited decision merely points out that a description of the beneficiary's job duties must be 
weighed heavily when determining the nature of the beneficiary's employment. As such, the fact that Fedin 
Bros. involves a nonimmigrant rather than an immigrant petition is not relevant and does not weaken the 
director's point. Moreover, the regulation at 8 C.F.R. § 204.50)(5) expressly instructs the petitioner to 
provide a detailed description of the duties to be performed when submitting the Form 1-140. The cited case 
law merely reaffirms the regulatory provision that emphasizes the importance of an adequate job description. 
Counsel also asserts that the beneficiary will perf~l and executive job duties and refers to a 
supplemental list of duties and responsibilities tha~provided in his August 2, 2009 statement 
submitted on appeal. The list consists of the following: 
• Responsible for further developing the company's presence and growth in the United States, 
Brazil, South America, and the Caribbean .... 
Page 5 
• Facilitates, manages, and further develops relationships with various shipping lines and 
carriers .... 
• Works with company strategic alliances worldwide. Reviews custom brokerage contracts 
and serves as a liaison between customer brokers and major clients worldwide. 
• Directly in charge of successfully negotiating customer and carrier contracts on a large scale 
for the entire North American, Brazilian, and Latin American regions. 
• Responsible for supervising, overseeing, and motivating sales staff managers to work on and 
identify business development leads .... 
• Oversee the Compliance with International Trade Organizations Provisions and Regulations 
in Clients International Business Relations .... 
• Maintains and creates relationships with ocean and air shipping agents .... 
• Ensures that agents and shipping companies meet company requirements to be an agent 
company customer ocean and air shipping broker, including legal and insurance 
requirements. 
• Manages company costs for [the] entire United States, Brazil, South American and Caribbean 
region. Reviews costs and budgets of company subsidiaries and agent costs. Makes 
recommendations to ensure that costs are within budgets. 
• Uses strong analytical skills to evaluate current business trends and to position company 
expertise and services accordingly. Maintains knowledge of company market competitors ... 
and identifies weaknesses of competitors and strengths to ensure [that the] company [is] in 
line with business trend movements within the industry. 
• Develops the company's marketing strategy by analyzing the demand for company services 
and identifying potential customers .... 
• Responsible for managing and developing sales, operations and support of the multi-modal, 
international transportation and customs brokerage business for the company .... 
• Works to build and coordinate partnerships internally/externally to enhance 
customer/network growth and overall company profitability .... 
• Responsible for implementation and oversight of all compliance related items dealing with 
functioning as [t]reight [t]orwarder. 
• Exercises executive decision-making authority and reports directly to the Board of Directors 
in the United States and in Brazil. Approves all contracts and business agreements proposed 
by management and client customers. Sets and finalizes all purchasing, financial and market 
share agreements based on [the] business plan through subordinate administrative, logistic, 
Page 6 
and marketing personnel. Sits with managers on [a] monthly basis to compare actual sales 
and financial results with forecasted results. 
• Responsible for global corporate planning and overall international company VISlOn. 
Responsible for reviewing possible company office openings in other countries. Responsible 
for interviews with the customers and brokers to determine the best commercial 
opportunities. Negotiates contracts with real estate brokers for warehouse space and office 
space. Negotiates the contracts with the air transporters and ocean liners. 
added that the beneficiary oversees the work of an administrative manager and a sales 
manager and noted that both departments hire seasonal workers as needed. 
After reviewing the newly submitted information, the AAO finds that the job description does not establish 
that the primary portion of the beneficiary's time would be allocated to tasks within a managerial or executive 
capacity. While the new job description clearly contains more information about the proposed position than 
the job description that was initially provided in support of the petition, the AAO nevertheless finds that a 
number o~statements are still too general and fail to convey a meaningful understanding of the 
beneficiary'S job duties. For instance, while _ indicated that the beneficiary would be 
"responsible" for the company's growth, he did not cite any specific daily tasks the beneficiary would perform 
in order to meet this responsibility. Similarly, the AAO is uncertain as to the tasks involved in the 
beneficiary'S responsibility for implementing and overseeing the compliance of the freight forwarder or his 
responsibility for corporate planning. The underlying tasks associated with these general responsibilities are 
simply not covered in the provided job description. 
The AAO also notes that while the beneficiary would be assigned a number of operational tasks, no 
information was provided to establish how much time would be allocated to carrying out the non-qualifying 
elements that appear to be inherent to the proposed position. For instance, it is not readily apparent that tasks 
such as communicating with shipping lines and carriers, serving as the liaison between customs brokers and 
clients, negotiating various contracts with customers and carriers, and conducting market research to develop 
a marketing strategy are tasks within a qualifying managerial or executive capacity. 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 hislher 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 the present matter, the petitioner has not established that the non-qualifying 
tasks are only incidental to the beneficiary'S proposed employment. 
Furthermore, little information was provided about the petitioner's organizational hierarchy and the personnel 
whom the petitioner employed at the time of filing. The AAO notes that in reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that U.S. Citizenship and 
Immigration Services (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 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei 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 
Page 7 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Thus, while the number of employees 
the petitioner had at the time of filing is not the sole factor considered in determining a petitioner's eligibility, 
it is clearly relevant, as a petitioner with a limited staff may be unable to relieve the beneficiary from having 
to primarily perform tasks of a non-qualifying nature. In the prysent matter, the record does not contain 
sufficient information about the petitioner's staffing. As such, the AAO cannot affirmatively determine that 
the petitioner was adequately staffed to support the beneficiary in a primarily managerial or executive 
capacity. Additionally, the AAO notes that the record lacks information about the beneficiary's direct 
subordinates. Although the petitioner claims that the beneficiary would oversee the work of two managerial 
employees, without a more detailed description of the petitioner's organizational hierarchy and the employees' 
specific placements, the AAO cannot determine whether the managerial position titles are accurate in 
conveying the nature of the respective positions. As such, the AAO cannot determine that the beneficiary 
oversees the work of managerial or supervisory employees despite their assigned position titles. 
Lastly, with regard to the petitioner's submission of an opinion statement from a university professor 
regarding the issue of the beneficiary's employment capacity, the AAO finds that such documentation has 
little probative value in the instant proceeding. Other than reaffirming the petitioner's own claim, there is no 
evidentiary value in the statements of an individual who has no personal knowledge of the beneficiary's 
proposed employment, the petitioner's organizational hierarchy, or the relevant statutory provisions that apply 
to the matter at hand. Thus, the AAO views the opinions of the third party individual as little more than an 
extension of the petitioner's claim rather than evidence that supports the claim. Where an opinion is not in 
accord with other information or is in any way questionable, the AAO is not required to accept or may give 
less weight to that evidence. Matter of Caron International, 19I&N Dec. 791 (Comm. 1988). 
In summary, the record as presently constituted is not persuasive in demonstrating the petitioner's eligibility 
for the immigration benefit sought. As noted above, the record lacks sufficient information about the 
beneficiary's prospective job duties and fails to establish that the petitioner's organizational hierarchy at the 
time the Form 1-140 was filed was sufficient to relieve the beneficiary from having to allocate the primary 
portion of his time to non-qualifying tasks. Therefore, based on the evidence furnished, the AAO cannot 
conclude that the beneficiary would be employed primarily in a qualifying managerial or executive capacity. 
F or this reason, the petition may not be approved. 
As a final note, counsel makes a brief reference to the petitioner's current approved L-l employment of the 
beneficiary. The AAO notes that each nonimmigrant and immigrant petition is a separate record of 
proceeding with a separate burden of proof. As such, 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. The 
approval of a nonimmigrant petition in no way guarantees that USCIS will approve a subsequent immigrant 
petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions after 
approving prior nonimmigrant 1-129 L-l petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
at 25; lKEA 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 the previous nonimmigrant petition was approved based on the same 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 
Page 8 
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). 
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.