dismissed EB-1C Case: Communication Systems

· idctntifying data deJeted to 
prevent clearly unwarranted 
UtVM60n ofpenonaJ privac} 
PUBLIC COpy 
DATE: 
APR 232012 
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 
OFFICE: TEXAS SERVICE CENTER 
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. § ll53(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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, 
PerryRhew 
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 engaged in communication systems, and it seeks to employ the beneficiary as a 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 denied the petition based on the following grounds of ineligibility: (1) failure to establish that the 
beneficiary's employment abroad was within a qualifying managerial or executive capacity; and (2) failure to 
establish that the beneficiary'S proposed employment with the U.S. entity would be within a qualifying 
managerial or executive capacity. 
On appeal, the petitioner disputes the director's fmdings and provides an appellate brief laying out the grounds 
for challenging the denial. 
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. 
The two issues that will be addressed in this proceeding call for an analysis of the beneficiary'S job duties. 
Specifically, the AAO will examine the record to determine whether the petitioner submitted sufficient 
evidence to establish that the beneficiary was employed abroad and 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. § I 101 (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 10 1 (a)(44)(B) ofthe Act, 8 U.S.c. § I 101 (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 from higher level executives, 
the board of directors, or stockholders of the organization. 
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). Published case law clearly supports the pivotal role 
of a clearly defmed 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). That being said, however, USCIS reviews the totality of the record, which 
includes not only the benefIciary's job description, but also takes into account the nature of the petitioner's 
business, the employment and remuneration of employees, as well as the job descriptions of the benefIciary's 
subordinates, if any, and any other facts contributing to a complete understanding of a benefIciary's actual role 
within a given entity. 
An analysis of the record does not lead to an affIrmative conclusion that the beneficiary was employed abroad 
in a qualifying managerial or executive capacity. With regard to the foreign position the petitioner provided a 
list of job duties performed by the beneficiary with a percentage breakdown which included broadly stated job 
responsibilities. Due to the overly general information included in the percentage breakdown, the petitioner 
has failed to convey a meaningful understanding of how much time the beneficiary spent performing 
qualifying tasks versus those that would be deemed non-qualifying. 
The petitioner stated that the beneficiary held the position of general manager and he reported to the vice­
president of the board of directors, and had direct supervision of the Operation Manager, Marketing Manager, 
and the Accounting Manager. 
The petitioner provided a vague and nonspecific description of the beneficiary'S duties that fails to demonstrate 
what the beneficiary did on a day-to-day basis. For example, the petitioner states that the beneficiary'S duties 
included: "direct all the management activities that mean interaction with the client;" "plan job training for its 
employees;" "participate actively in the Board Meetings;" and "approve the policies and procedures that are in 
his authority, as well as comply and make every employee comply to the companies job policies and 
procedures as well as to the ones relative to the physical security of the personnel and its installations." The 
petitioner did not, however, define the petitioner's goals and policies, or clarify the management activities 
involved when interacting with clients. Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not suffIcient; the regulations require a detailed description of the beneficiary's daily job 
duties. The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course 
of her daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afJ'd, 905 F.2d 41 (2d. Cir. 1990). 
The job description also includes several non-qualifying duties such as the beneficiary would "carry out market 
studies to detect new business opportunities," "promote the products fabricated by the company," "define the 
course of action to negotiate the sales of our products to our clients," and "prepare the annual budgets of the 
general management." As the foreign company did not employ a sales manager or staff, it appears that the 
beneficiary will be primarily providing the sales services of the business rather than directing such activities 
through subordinate employees. An employee who "primarily" performs the tasks necessary to produce a 
product or provide a service is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections lOl(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). 
The job description submitted by the petitioner provides little insight into the nature of the tasks the beneficiary 
will perform. While the petitioner has provided a breakdown of the percentage of time the beneficiary will 
spend on various duties, the petitioner has not articulated whether each duty is managerial or executive. 
After reviewing the beneficiary's job description with the foreign entity and considering that information in 
light of the foreign entity's organizational structure as it specifically pertained to the beneficiary's position, the 
AAO cannot conclude that the primary portion of the beneficiary's time was spent performing tasks within a 
qualifying managerial or executive capacity. 
The second issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Page 5 
On appeal, the petitioner asserts that the director's decision was erroneous and points out users's approval of 
the petitioner's previously filed L-IA petition on behalf of the same beneficiary. 
Counsel's reliance on a previously approved nonimmigrant petition is misplaced and will not serve as a basis 
for withdrawing the director's decision in the present matter. First, the AAO notes that each nonimmigrant and 
immigrant petition is a separate record of proceedings with a separate burden of proof and as such, each 
petition must stand on its own individual merits. uscrs 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. Any prior nonimmigrant approvals do not preclude uscrs from 
denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 
(5th Cir. 2004). Similarly, the approval of a nonimmigrant petition in no way guarantees that uscrs will 
approve an immigrant petition filed on behalf of the same beneficiary. uscrs denies many r-140 immigrant 
petitions after approving prior nonimmigrant r-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 was 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 r&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that uscrs 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). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 
WL 144470 (9thCir. July 30,1991). 
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), affd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner stated that the beneficiary directly supervises the Sales & Administrative Manager and the 
Operation Manager. The petitioner also stated that "other employees who are not directly supervised by the 
beneficiary are under each manager." According to the organizational chart, the Sales and Administrative 
Manager supervises an administrative assistant; and the Operations manager supervises two technical assistants. 
The petitioner provided a vague and nonspecific description of the beneficiary's duties that fails to demonstrate 
what the beneficiary will do on a day-to-day basis. For example, the petitioner states vague duties such as the 
beneficiary "directs the activities of the Dept. managers, to ensure that all departments' managers are fulfilling 
the expectations and responsibilities of their work;" "responsible for complete operations, administration and 
management of the business;" and, "plans and develops organizational Policies and Goals." The petitioner did 
not, however, define the petitioner's goals and policies, or clarify the tasks involved in being responsible for all 
of the business operations. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
Page 6 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course of his 
daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., 
Ltd.. v. Sava, 724 F. Supp. at 1108. The petitioner's descriptions of the beneficiary's position do not identify 
the actual duties to be performed, such that they could be classified as managerial or executive in nature. 
The job description also includes primarily non-qualifying duties such as the beneficiary will "analyze market 
trends and economic conditions to forecast potential sales or contracts for new projects and practices the 
Company can engage in," "meet with providers to maintain in public relations and ensure the Company has a 
Representative standing behind the work of all subordinate Managers," "sets up an operational Budget," and 
"develop new market goals." Based on the petitioner's representations, the beneficiary will be providing the 
services of the business rather than directing such activities through subordinate employees. An employee 
who "primarily" performs the tasks necessary to produce a product or provide a service 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. at 604. Although the petitioner subsequently claimed that the 
beneficiary's subordinates will perform sales, administrative and operational duties, these duties clearly 
indicate that the beneficiary is directly involved in all of the routine, day-to-day operations of the business. 
In addition, although the beneficiary is not required to supervise personnel, if it is claimed that his duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. The petitioner claims that the beneficiary 
supervises three employees. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.c. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
The AAO must focus on the level of education required by the position, rather than the degree held by a 
subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is actually 
necessary to perform the duties of the sales and administrative manager and the operation manager. The 
petitioner stated that both of these positions require only an associate's degree .. Accordingly, the petitioner has 
not established that the beneficiary's claimed subordinates are professionals. 
A critical analysis of the nature of the petitioner's business undermines the petitioner's assertion that the 
subordinate employees relieve the beneficiary from performing non-qualifying duties. Rather, it appears from 
the record that the beneficiary is performing a large portion of the marketing, market research, client 
development and budgeting required for running the business. Although the petitioner provided the job duties 
Page 7 
of the sales and administrative manager and the operations manager, based on the job description of the 
beneficiary's proposed position, the beneficiary's job duties are principally composed of non-qualifying duties 
that preclude him from functioning in a primarily managerial or executive role. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. at 604. 
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.