dismissed EB-1C Case: Child Care

U.S. Citizenship 
and Immigration 
Services 
In Re: 25492328 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 14, 2023 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, which operates a child care center, seeks to permanently employ the Beneficiary as its 
president under the first preference immigrant classification for multinational managers or executives. 
Immigration and Nationality Act (the Act) section 203(b)(l )(C), 8 U.S.C. § 1153(b )(l)(C). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that: (1) the Beneficiary has been employed abroad in a managerial or executive capacity; 
(2) the Petitioner will employ the Beneficiary in the United States in a managerial or executive 
capacity; and (3) the Petitioner has a qualifying relationship with the Beneficiary's foreign employer. 
The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5U)(3). 
II. ANALYSIS 
The Beneficiary has been the owner and sole proprietor of a construction company in Pakistan since 
2001. In 2014, the Beneficiary entered the United States as an L-lA nonimmigrantintracompany 
transferee to serve as president of the petitioning entity. The Petitioner asserts that the Beneficiary 
has continued to run the construction company abroad after she entered the United States. 
If a beneficiary is already in the United States working for the foreign employer or its subsidiary or 
affiliate, then the petitioner must demonstrate that, in the three years preceding entry as a 
nonimmigrant, the Beneficiary was employed by the entity abroad for at least one year in a managerial 
or executive capacity. 8 C.F.R. § 204.5(i)(3)(i)(B). 
The Petitioner asserts that the Beneficiary has been, and will be, employed in an executive capacity 
rather than a managerial capacity. "Executive capacity" means an assignment within an organization 
in which the employee primarily directs the management of the organization or a major component or 
function of the organization; establishes the goals and policies of the organization, component, or 
function; exercises wide latitude in discretionary decision-making; and receives only general 
supervision or direction from higher-level executives, the board of directors, or stockholders of the 
organization. Section 10l(a)(44)(B) of the Act. 
The Petitioner's initial description of the Beneficiary's duties abroad listed 13 responsibilities. The 
Director requested more details, stating that the original description was vague and general. The 
Petitioner resubmitted the same description, with the same individual elements reorganized into four 
categories, each with the approximate percentage of time dedicated to duties in each category: 
• Overall Management and Direction of Company including Business Development, 5 0%; 
• Financial Analysis, 30%; 
• Client Relationship Management, 10%; and 
• People Management, 10%. 
Apart from the change in order, the two lists of responsibilities are identical, even including the same 
irregular punctuation in the phrase"[ c ]onducting, research of conditions" and capitalization of "Hiring 
and Firing." 
Some of the listed elements are of questionable relevance. For instance, the job description indicates 
that the Beneficiary would "recommend ... personnel actions," but as the sole owner and highest­
ranking official of the business, it is not evident to whom she would have made these 
recommendations. 
The job description included several operational tasks that are not executive-level responsibilities, 
such as "training and supervising the work done by new and subordinate employees," and a number 
of duties more suited to a financial analyst, such as "[p]]repare plans of action for investment based on 
financial analysis" and "[i]nterpret data affecting investment programs." These are operational tasks 
rather than executive-level responsibilities. 
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The five elements grouped under "Overall Management and Direction of Company including Business 
Management" relate to authority over a business, but the wording is so generic that they provide little 
insight into the Beneficiary's specific tasks, duties, and responsibilities: 
• Fonnulate policies and develop business strategy in consultation of the firm. 
• Direct and coordinate the business activities of the firm. 
• Conducting, research of conditions in local, regional and national areas to 
determine potential business and investment opportunities. 
• Monitor business operations and financial activities and details such as rese1ve 
levels to ensure that all legal and regulatory requirements are met. 
• Maintain current knowledge of organizational policies and procedures, f ederal and 
state policies and directives, and current accounting standards. 
The letter containing the job description does not identify any specific "investment opportunities" or 
"investment program" thatthe company pursued during the 13 years that the Petitioner led the business 
in Pakistan. Likewise, a prefatory passage with the reorganized list indicated that the Beneficiary 
oversaw "acquisitions," but there is no indication of specific acquisitions by the construction company. 
If the company was not actually engaged in investment and acquisitions, then such activities would 
not have taken up a significant propmiion of the Beneficiary's time as claimed. 
In denying the petition, the Director concluded that the "job duties for the foreign entity are overly 
vague and broadly-stated" and do not "describe the actual duties performed in the course of [the 
Beneficiary's] daily routine." 
On appeal, the Petitioner states that it has established that the Beneficiary was "directing the operations 
from the top, establishing goals and policies of the organization and exercising wide latitude and 
discretion in decision making." The issue is not the Beneficiary's location at the top of the hierarchy, 
but whether the Petitioner has established that the Beneficiary's duties abroad were primarily those of 
an executive capacity. We agree with the Director's conclusion that the Petitioner did not provide 
sufficient details to meet this burden. 
The job description appears to be a general list of business functions and activities. It includes no 
specific references to the operation of a construction company, and several of the included elements 
do not appear to apply readily to such a business. 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 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
On appeal, the Petitioner asserts that a company's "[s]ize is not a relevant consideration when 
assessing whether a beneficiary is employed as a manger or executive." The Director did not base the 
denial on the size of the foreign company, and therefore this asse1iion does not establish or identify 
error in the Director's decision. Even then, both the statute and regulations both specifically state that 
''staffing levels [ can be] used as a factor in determining whether an individual is acting in a managerial 
or executive capacity," while taking into account "the reasonable needs of the organization, 
component, or function, in light of the overall purpose and stage of development of the organization, 
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component, or function." Section l O l (a)(44)(C) of the Act, 8 U.S.C. § 110 l (a)(44)(C); 8 C.F.R. 
§ 204.5(j)(4)(ii). 
When the Petitioner filed the petition in 2018, it submitted recent salary records and other infmmation 
about the company's staff These materials named individual positions within the company, such as 
"Technical Head," "Senior Surveyor" and "Office Clerk," but they did not establish the organizational 
structure. Information about that structure is necessary to determine whether the company has a level 
of organizational complexity that would warrant a primarily executive position at the top of the 
hierarchy. Also, the submitted materials were from2017 and 2018, and did not depict the organization 
while the Beneficiary was running the company during the statutorily defined three-year period 
preceding her entry in 2014. 
The Director requested additional details about the Beneficiary's subordinates and their duties, and 
"the exact productive and administrative tasks" involved in the operation of the overseas business. 
The Petitioner's response to the request did not directly address these issues. As a result, the record 
does not provide enough infmmation about the company's operation and structure to establish that the 
Beneficiary worked in a primarily executive capacity in the three years preceding her 2014 entry into 
the United States. 
U.S. Citizenship and Immigration Services (USCIS) had previously approved two petitions to classify 
the Beneficiary as an L-1 A nonimmigrant in 2014 and 201 7. The Petitioner asserts that these 
approvals "confirmed that USCIS has already made a determination as to the managerial/executive 
nature of the position." USCTS is not required to approve petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988) ( citations omitted). 
Based on the deficiencies discussed above, the Petitioner has not met its burden of proof to establish 
that the Beneficiary was employed in a primarily executive capacity abroad. 
Because the above issue decides the outcome of the Petitioner's appeal, we decline to reach and hereby 
reserve the Petitioner's appellate arguments regarding the claimed executive capacity in the United 
States and the qualifying relationship between the Beneficiary's two employers. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (holding that "courts and agencies are not required to make 
findings on issues the decision of which is unnecessary to the results they reach"). 
ORDER: The appeal is dismissed. 
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