dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent cleat!)' unwarranted 
invasion of personal privacy 
PUBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
E: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and hmnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529,2090 
u.s. Citizenship 
and Immigration 
Services 
Date: 
JAN 1 9 2011 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U,S.C. § I I 53(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 1-290B, 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. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscls.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 limited liability company organized in the State of Florida. The petitioner seeks to employ 
the beneficiary as its general manager. 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 determined that the petitioner failed to establish that the beneficiary would be employed in the 
United States in a managerial or executive capacity and denied the petition on that basis. On appeal, counsel 
disputes the director's decision and submits a brief statement asserting that the beneficiary's proposed 
employment would be within an executive capacity. 
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 finn 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 finn, 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 fonn 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 perfonned by the alien. 
The primary issue in this proceeding is whether sufficient evidence was submitted to establish that the 
petitioner 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. § 1 101 (a)(44)(A), provides: 
The tenn "managerial capacity" means an assignment within an organization In which the 
employee primarily--
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(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 10 I (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 10 which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner's sales manager, submitted a letter dated April 23, 
2008, on the petitioner's behalf He stated that the beneficiary is the petitioner'S top ranking official within the 
petitioning entity and further asserted that the beneficiary is empowered with the authority to oversee, hire, 
promote, and fire all staff; control operating expenses; schedule and coordinate work loads; approve 
purchases and marketing strategies; and establish and enforce the company's technical standards. In a 
separate supporting document titled "Job Description," the beneficiary's proposed position was also said to 
include studying and analyzing market patterns of the supply and demand for the petitioner's products and 
services; negotiating contracts; and managing the company's list of suppliers and service providers. 
The supporting documents also included the petitioner's organizational chart, which depicts the beneficiary in 
the top-most position as the company's general manager. The chart depicts a sales manager and an 
administrative manager as the beneficiary'S two direct subordinates followed by an accounts payable and 
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receivable assistant as the administrative manager's subordinate, and a logistics supervisor followed by a 
warehouse clerk as the two employees under the supervision of the sales manager. 
On September 23, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner 
to establish that the beneficiary's proposed position fits the four criteria listed under the statutory definition for 
managerial capacity or executive capacity. The director informed the petitioner that the information provided 
initially in support of the Form 1-140 was insufficient to determine that the beneficiary would be employed in 
the United States in a managerial or executive capacity. 
In response to the above request, -'provided a letter on the petitioner's behalf supplementing the 
record with an additional description of the beneficiary'S proposed employment. Mr epeated various 
portions of the previously provided job description, focusing on the beneficiary's discretionary authority in 
making policies and setting goals, controlling the petitioner's budget and all matters dealing with finances, 
and making decisions regarding the petitioner's employees and independent contractors. As the director 
included the supplemental job description in its entirety in the adverse decision, it is not necessary to repeat 
this information in the current discussion. 
In a decision dated March 9, 2009, the director denied the petition concluding that the petitioner failed to 
establish that the beneficiary would be employed in a managerial or executive capacity. The director noted 
that the petitioner provided a vague job description that lacked specific information about the beneficiary'S 
actual day-to-day job duties and thus failed to establish that the beneficiary would not attribute the primary 
portion of his time to performing daily operational tasks. Although the director also found that the petitioner 
failed to establish that the beneficiary would supervise managerial employees or degreed professionals, the 
AAO finds that the organizational chart submitted in support of the petition directly contradicts the director's 
finding. Therefore, while the AAO will affirm the denial, the inaccurate observation is hereby withdrawn. 
On appeal, counsel for the petitioner asserts that there is no statute or regulation that mandates the number of 
employees the beneficiary must supervise in order to merit classification as a multinational manager or 
executive. In support of his argument, counsel refers to an unpublished decision in which the AAO 
determined that the beneficiary met the requirements of serving in a managerial and executive capacity for L-
1 classification even though he was the sole employee. However, counsel has furnished no evidence to 
establish that the facts of the instant petition are analogous to those in the unpublished decision. Moreover, 
while 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all employees of U.S. 
Citizenship and Immigration Services (USCIS) in the administration of the Act, unpublished decisions are not 
similarly binding. 
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. § 204.5U)(5). The primary focus of the adverse decision was the 
vague job description that was offered with regard to the proposed employment. The director expressly stated 
that the lack of specific information about the beneficiary's daily job duties precluded a favorable finding, as 
he was unable to determine that the beneficiary's time would primarily be allocated to managerial- or 
executive-level tasks. While the AAO acknowledges that no beneficiary is required to allocate 100% of her 
time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to 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 
Page 5 
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, while the petitioner has offered several job descriptions for the proposed employment, 
all are equally vague and fail to specifY the beneficiary's actual daily tasks sufficiently to convey a meaningful 
understanding of how the beneficiary meets the general job responsibilities that have been assigned to her. 
The AAO acknowledges that the beneficiary's placement within the petitioner's organizational hierarchy 
understandably empowers her with a heightened degree of discretionary authority over policy matters and 
other matters dealing with the petitioner's finances and personnel. However, published case law clearly 
supports the pivotal role of a clearly defined job description, as 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); see also 8 C.F.R. § 204.5(j)(5). 
Additionally, while the petitioner's sales manager has been tasked with the responsibility of growing the 
company's sales, it is unclear whether this responsibility involves actually selling the petitioner's products and 
services. Thus, as no one within the petitioner's organization has been specifically tasked with sales and 
marketing job duties, the AAO cannot overlook the possibility that the beneficiary would be directly involved 
in performing these daily operational tasks, which, while clearly essential to the petitioner's financial stability 
and future success, are outside the realm of what is deemed to be within a qualifYing managerial or executive 
capacity. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. Neither the beneficiary's own job descriptions nor 
the job descriptions of the petitioner's support personnel establish that the beneficiary would be relieved from 
having to allocate the primary portion of her time to performing non-qualifYing job duties. While the AAO 
recognizes the beneficiary's level of authority and her placement with respect to others within the petitioner's 
organizational hierarchy, these factors, when unaccompanied by a detailed delineation of the beneficiary's 
proposed job duties, are not sufficient to establish that the beneficiary would be employed within a qualifYing 
managerial or executive capacity. For this reason, the petition may not be approved. 
Additionally, the AAO finds that the information provided with regard to the beneficiary's employment 
abroad is equally lacking adequate details describing the beneficiary's daily tasks. As such, while not 
addressed in the director's denial, the AAO concludes that the petitioner failed to establish that it meets the 
provisions of 8 C.F.R. § 204.5(j)(3)(i)(B), which states that the petitioner must establish that the beneficiary 
was employed abroad in a qualifYing managerial or executive position for at least one out of the three years 
prior to her entry to the United States as a nonimmigrant to work for the same employer. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identifY all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (ED. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
As a final note, service records show the petitioner's previously approved L-I employment of the beneficiary. 
With regard to the beneficiary's L-I nonimmigrant classification, it should be noted that each nonimmigrant 
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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. 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-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 (DD.C. 1999); Fedin 
Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, any previous nonimmigrant petition that was approved based on the same unsupported 
assertions that are contained in the current record 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 the nonimmigrant petitions 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.C!. 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.