dismissed EB-1C Case: Cocoa Processing

identifying data deleted to 
prevent c leari y iulwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
LIN 07 140 52871 
 JAM 0 7 2010 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Perry Rhew 
+ 
\J Chief, Administrative Appeals Office 
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 Delaware corporation that operates a cocoa processing facility. It seeks to employ the 
beneficiary as a production manager. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 153(b)(l)(C), as a multinational executive or manager. 
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. 
On appeal, counsel disputes the director's conclusions and submits a statement from the petitioner's 
representative, who further asserts that the beneficiary would be employed in a managerial capacity and 
provides the basis for his assertions. 
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)(l)(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. 
The two primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
would be employed in the United States in a qualifying managerial or executive capacity. 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1 lOl(a)(44)(A), provides: 
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. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(B), provides: 
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 fiom higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated November 29, 2006 in which the 
beneficiary's responsibilities with the foreign and U.S. entities were discussed. On May 21,2008, the director 
issued a request for additional evidence (RFE), instructing the petitioner to provide a list of the beneficiary's 
specific job duties abroad and the duties he would perform in his proposed position with the U.S. entity. The 
director instructed the petitioner to assign the percentage of time that has been and would be spent performing 
each enumerated job duty. 
In response, the petitioner provided the job descriptions1 as well as each entity's organizational chart 
illustrating the staffing tiers and the beneficiary's position within each company. 
 The petitioner's 
organizational chart shows that it has seven staffing tiers and that the beneficiary's position is situated at the 
fifth tier from the top with 20 production workers, the head of maintenance, and the electrical systems 
manager as his direct subordinates. The maintenance workers, of which there are nine, are shown at the 
bottom tier. According to the hierarchy illustrated in the chart, the nine workers are supervised by the head of 
maintenance and the electrical systems manager. The foreign entity's organizational chart shows six tiers with 
the beneficiary similarly placed at the fifth tier from the top as one of four production managers overseeing 
the first shift production personnel. 
On August 18, 2008, the director issued a decision denying the instant petition. The director restated the 
descriptions of the beneficiary's foreign and proposed employment and determined that the beneficiary's time 
was and would be spent primarily performing daily operational tasks. Based on this determination the 
director concluded that the beneficiary was not employed abroad and would not be employed in the United 
States in a qualifying managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's proposed U.S. position is within a managerial capacity, 
claiming that the beneficiary manages an essential function and has hiring and firing authority as well as 
discretion over daily operations within the production department. In a supplemental statement dated 
September 9, 2008, counsel further contends that the beneficiary manages the essential function of production 
while simultaneously overseeing supervisory or managerial personnel. Counsel's argument, however, is not 
persuasive. The term "function manager" applies generally when a beneficiary does not supervise or control 
the work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. $ 1 10 l(a)(44)(A)(ii). Thus, 
counsel's contention that the beneficiary manages both a function and personnel is at odds with the practical 
application of the term "function manager." 
In a separate letter dated September 12, 2008, the petitioner asserts that the beneficiary's employment abroad 
and his proposed employment in the United States involve similar responsibilities and contends that both are 
within a managerial capacity. The petitioner states that the beneficiary is an essential employee who 
addresses the company's industrial needs by ensuring that the specialized machines used in production receive 
the maintenance that they need to function effectively. The petitioner also maintains that the beneficiary 
controls the work of other employees, which, as previously stated, is inconsistent with the practical definition 
of a function manager. Notwithstanding this apparent inconsistency, even if the AAO were to consider the 
petitioner's personnel management responsibilities, the petitioner has not clarified that the personnel the 
beneficiary managed abroad and those he would manage in his proposed position can be deemed managerial, 
professional, or supervisory employees. This is particularly true of the foreign employment, as the 
organizational chart indicates that the beneficiary managed the first shift production staff and the 
accompanying list of subordinate employees, which contains each employee's name and position title, 
indicates that the beneficiary's subordinates were non-managerial, non-professional, and non-supervisory. 
-- - - 
1 
 As the director's denial includes both the initial job description provided in the November 2006 letter as well as the 
U.S. and foreign job descriptions provided in response to the RFE, the AAO need not repeat this information in the 
current discussion. 
Page 5 
With regard to the beneficiary's subordinates in his proposed U.S. employment, while the organizational chart 
seemingly indicates that two of the beneficiary's subordinates-head of maintenance and the electrical 
systems manager--oversee the non-professional maintenance workers, it is unclear why the petitioner needs 
to have two supervisors or managers overseeing the same set of maintenance works. Furthermore, despite the 
information that is conveyed in the organizational chart, the description of the beneficiary's job duties does 
not indicate that the beneficiary is somehow relieved from having to primarily perform non-qualifying tasks 
or oversee the work of non-professional employees. Rather, the description indicates that the beneficiary is 
directly involved in the daily operational tasks, as it is his primary responsibility to ensure the proper running 
of all essential machinery. Based on the job description, it appears that the beneficiary's tasks would include 
directly overseeing the non-managerial, non-professional, and non-supervisory individuals that are charged 
with carrying out the actual repairs. In addition to the beneficiary's implied role as first-line supervisor, the 
record clearly shows that the beneficiary would directly train shift operators and oversee the work of 20 
production workers, none of whom have been established as being managerial, professional, or supervisory 
employees. 
Counsel also contends that the petitioner has established the beneficiary's qualifying employment with the 
foreign and U.S. entities in the non-immigrant petitions that were previously filed on behalf of the same 
beneficiary. However, the AAO notes 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. U.S. 
Citizenship and Immigration Services (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 prior nonimmigrant approvals do not preclude USCIS from 
denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Likewise, 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, some of which may have been 
approved erroneously. 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). That being said, if the previous nonimmigrant petitions were approved based on the same assertions 
that are contained in the current record, the approvals 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.Ct. 5 1 (2001). 
In summary, the record indicates that the primary portion of the beneficiary's time, both abroad and at the 
U.S. entity, has been and would be spent as a first-line supervisor whose subordinates are non-managerial, 
non-professional, and non-supervisory individuals. The AAO therefore cannot conclude that the beneficiary 
was employed abroad or that he would be employed in the United States in a primarily managerial or 
executive capacity. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), afd 345 F.3d 683 
(9th Cir. 2003). 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.