dismissed EB-1C Case: Compact Disc Manufacturing

U.S. Deparlment of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 02 242 50628 Office: CALIFORNIA SERVICE CENTER Date: JUL 1 9 2005 
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. § 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. 
Aobert P. ~iemann, Director 
' Administrative Appeals Office 
WAC 02 242 50628 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based petition. 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 New York in February 1998. The 
separate Internal Revenue Service (IRS) Forms 1065, U.S. Return of Partnership Income, is a separate entity. 
However, the petitibner has also submitted evidence that 4 
the beneficiary when the petition was filed. The petitioner in this matter mi anufactures and sells compact 
discs and seeks to employ the beneficiary as a mastering 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 1153(b)(l)(C), as a multinational executive or 
manager. 
The director determined that the petitioner had not established that the beneficiary had been employed abroad 
in a managerial or executive capacity for one of the three years prior to entering the United States as a 
nonimmigrant. The director also determined that the petitioner had not established that the beneficiary would 
be employed in a primarily managerial or executive capacity for the United States entity. 
On appeal, counsel for the petitioner asserts that the director offered no analysis for classifying the 
beneficiary as a first-line supervisor. Counsel notes that the director, in his previous approvals of the 
petitioner's Forms 1-129 petitions, found that the beneficiary is an L-1A manager. 
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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
WAC 02 242 50628 
Page 3 
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 that 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. See 8 C.F.R. 
0 204.5Cj)(5). 
The first issue in this proceeding is whether the petitioner has demonstrated that the beneficiary had been 
employed in a managerial capacity for the foreign entity in one of the three years prior to entering the United 
States as a nonimmigrant. The petitioner does not claim that the beneficiary was employed in an executive 
capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 0 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
1. manages the organization, or a department, subdivision, function, or 
component of the organization; 
. . 
11. 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; 
. . . 
111. 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. 
In a July 17, 2002 letter appended to the petition, the petitioner indicated that the beneficiary had been 
employed as the mastering manager for the foreign entity since 1998 and that in this position she supervised 
eight employees for the foreign entity. In addition, the petitioner stated that the beneficiary provided 
technical support, was responsible for setting and maintaining budgets and cost controls, analyzing production 
to control operating costs, maintaining inventory levels, and formulating the master schedule. The petitioner 
also noted that the beneficiary established production and quality control standards, ordered the modification 
WAC 02 242 50628 
Page 4 
of equipment and machines, and analyzed the entire operation to ensure product quality and obtained the 
optimum production and utilization of human resources. The petitioner provided a copy of the foreign entity's 
organizational chart showing the "mastering" department under the foreign entity's operations department. 
The chart did not include names or titles of the positions in the mastering department but included the number 
"3" in the box identifying the mastering department, apparently to reflect three employees in the department. 
On October 19, 2002, the director requested the foreign entity's organizational chart, requesting that it include 
the current names of all executives, managers, supervisors, and number of employees within each department 
or subdivision, and all employees under the beneficiary's supervision by name, job title, and brief job 
description. 
The petitioner provided the foreign entity's organizational chart in its January 9, 2003 response to the 
director's request for evidence. The organizational chart showed the beneficiary in the position of mastering 
manager from 1998 to 2001. The chart depicted the beneficiary's position over seven departments including 
the graphics and printing department, the purchasing department, the packaging and warehouse department, 
production department, information system department, quality control department, and the mastering 
machine operator department. The chart showed that each department included a manager and designated 
approximately 25 employees under the supervision of the various "managers." 
The petitioner, through counsel, also noted that the beneficiary had been responsible for the mastering and the 
production systems, providiilg technical support to the mastering machine operators, and supervising the 
mastering machine operators for quality control, as well as coordinating with the production department, 
graphics and printing department, purchasing department, quality control department and the packaging and 
warehouse department. 
On February 26, 2003, the director again requested information regarding the beneficiary's duties as a 
manager or executive for the foreign entity. The director requested that the petitioner clearly identify the 
beneficiary's position on the foreign entity's organizational chart and list all employees under the beneficiary's 
supervision by name, job title, and brief description ofjob duties. 
On May 19, 2003, the petitioner responded by providing a third organizational chart. The organizational chart 
in the record has been partially tom, such that the total number of employees under the beneficiary's 
supervision cannot be determined. The chart does depict four mastering machine operators and six ". . . 
operators" under the beneficiary's supervision. The petitioner, again through counsel, stated that the 
beneficiary had 16 employees under her supervision, including six shift managers, six line operators, and four 
mastering machine operators. Counsel also provided a brief description of the beneficiary's duties. 
On November 22, 2004, the director denied the petition in a grammatically incorrect and poorly articulated 
decision. The director determined that the organizational charts submitted contradicted each other; that the 
descriptions of the beneficiary's job duties for the foreign entity contradicted each other; and that the 
beneficiary's job duties appeared to include primarily day-to-day operational tasks. The director concluded 
that the beneficiary's position for the foreign entity did not qualify as managerial because the beneficiary was 
not managing other managers or professional employees. 
WAC 02 242 50628 
Page 5 
On appeal, counsel does not specifically address the director's determination regarding the beneficiary's 
position for the foreign entity. Instead, counsel seems to rely on the beneficiary's past approvals as an L-1A 
intracompany transferee. Counsel asserts that without a showing or claim of Citizenship and Immigration 
Services (CIS) error in its previous findings that the beneficiary was a manager, it is arbitrary and an abuse of 
discretion for CIS to now conclude that the beneficiary is not a manager. 
Counsel's assertions are not persuasive. The AAO acknowledges that both the immigrant and noniinmigrant 
visa classifications rely on the same definitions of managerial and executive capacity. See $5 101(a)(44)(A) 
and (B) of the Act, 8 U.S.C. § 1 10 1 (a)(44). There are significant differences between the nonimmigrant visa 
classification, which allows an alien to enter the United States temporarily for no more than seven years, and 
an immigrant visa petition, which permits an alien to apply for permanent residence in the United States and, 
if granted, ultimately apply for naturalization as a United States citizen. CJ: 55 204 and 214 of the Act, 
8 U.S.C. 55 1 154 and 1 184; see also 5 3 16 of the Act, 8 U.S.C. 5 1427. 
Moreover, it must be noted that many Form 1-140 immigrant petitions are denied after CIS approves prior 
nonimmigrant Form 1-129 L-1A petitions. See, e.g., Q Data Consulting, Inc. v. INS, 2993 F. Supp. 2d 25 
(D.D.C. 2003); 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). Because CIS spends less time reviewing Form 1-129 
nonimmigrant petitions than Form 1-140 immigrant petitions, some nonimmigrant L-1A petitions are simply 
approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. 
Fj 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-1A petition's 
validity). 
Further, the AAO is not bound or estopped by the previous decisions of the service center director. 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.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. 
denied, 122 S.Ct. 51 (2001). 
Finally, each petition is a separate record of proceeding and receives an independent review. See 8 C.F.R. 
5 103.8(d). In making a determination of statutory eligibility, CIS is limited to the information contained in 
the record of proceeding. See 8 C.F.R. fj 103.2(b)(16)(ii). Because the approved nonimmigrant petitions are 
not part of the current immigrant visa record of proceeding, the AAO cannot determine whether the previous 
L-1A petitions were approved in error, or whether the beneficiary was originally eligible but the facts 
changed before the Form 1-140 immigrant petition was filed. 
The petitioner has not provided evidence sufficient to overcome the director's determination that the 
beneficiary had not been employed in a managerial or executive capacity abroad for one of the three years 
prior to entering the United States as a nonimmigrant. 
WAC 02 242 50628 
Page 6 
The next issue in this proceeding is whether the beneficiary's position for the United States petitioner will be 
primarily managerial. The petitioner does not claim that the beneficiary's position will be an executive 
position. 
The director in his November 22, 2004 decision recites the petitioner and counsel's descriptions of the 
beneficiary's duties for the United States entity. The AAO will not repeat the descriptions in their entirety in 
this decision. 
In the petitioner's July 17, 2002 letter in support of the petition, the petitioner indicated that the beneficiary is 
and would be the petitioner's mastering manager "responsible for the daily management of the mastering 
department including staff recruitment and management, security, purchasing, shipping and maintenance." 
The petitioner also indicated that the beneficiary would coordinate all activities concerning production of 
"L&M Stampers" for optical disc products, utilizing knowledge of the product technology, production 
methods and procedures and the capabilities of machines and equipment, maintaining production and quality 
control standards, supervising employees on production and printing lines, organizing work schedules and 
formulating training manuals and procedures, implementing new procedures or operating methods to 
eliminate problems and improve product quality, and provide technical support. 
The record contains the United States entity's organizational chart submitted in response to the director's 
October 2002 request for evidence. The organizational chart depicts the "mastering department" as one of 
seven departments within the petitioner's operations division. The petitioner indicates that the beneficiary 
supervises a night shift supervisor, three mastering machine operators, a graphics and printing manager, a 
packaging and warehouse manager, and a purchasing manager. The petitioner indicates that the beneficiary is 
responsible for: staff training, quality control, production of "stampers," maintenance, and analyzing 
mastering reports to identify problems; receipt and checking all masters sent by customers, correcting 
problematic masters if possible, preparing material for production runs, and organizing and maintaining 
materials; operation of the mastering system, shift production, coordinating production according to the plant 
schedule and priority, "stampers" quality, providing technical support and solutions, and developing the 
masters into "exa-tapes." 
The record also contains the United States entity's organizational chart submitted in response to the director's 
February 2003 request for evidence. The second organizational chart depicts the beneficiary's position in the 
mastering department with five employees. The chart also shows the injection department directly beneath 
the mastering department and identifies the beneficiary as also being in this department with eleven 
employees. The petitioner identifies the employees in the mastering department by name and job title, which 
include a night shift equipment operator and supervisor, a night shift equipment operator, and three-day shift 
equipment operators. The petitioner also lists the job titles and names of employees in the production 
department, including an injection day shift supervisor, an injection night shift supervisor, and nine injection 
lines operators. The petitioner indicates that the beneficiary hires and trains staff, maintains the equipment for 
creating the masters, troubleshoots special equipment, provides technical support, fixes problematic medias, 
maintains quality control of the compact discsldigital video discs masters (stampers) and the final product, 
and keeps in contact with the client's authoring studios. The petitioner indicates that the beneficiary also 
organizes the work schedule for employees, formulates training manuals, plans, production activities and 
WAC 02 242 50628 
Page 7 
establishes production priorities, supervises employees on the mastering equipment, looks for vendors, 
maintains inventory levels, and sets and maintains budgets and cost controls. 
The director observed that the petitioner's organizational charts contained conflicting evidence regarding the 
number, title and positions of employees under the beneficiary's supervision. The director noted that the 
petitioner's organizational charts reflected that the beneficiary would be a first-line supervisor and that the 
petitioner had not shown that the positions subordinate to the beneficiary were professional positions. The 
director concluded that the evidence failed to establish that the beneficiary would be a manager or an 
executive for the petitioning entity. 
On appeal, counsel for the petitioner asserts that the director offered no analysis or rational basis for 
classifying the beneficiary as a first-line supervisor. Counsel contends that even if the beneficiary could be 
classified as a first-line supervisor she would still qualify as a manager because she oversees two supervisory 
employees and fourteen subordinate employees. Counsel notes that the "injection supervisor" is responsible 
for supervising, planning, organizing and directing the injection department. Counsel claims that the 
beneficiary, as mastering manager, oversees both the mastering and injection departments. Counsel again 
asserts that prior approvals, when there has been no change in job title or duties and no claims of error, should 
require approval in this matter in the interest of consistency and public policy. 
Counsel's assertions are not persuasive. When examining the executive or managerial capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 204.5(j)(5). 
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 (9th Cir. July 30, 1991). 
In this matter, both counsel and the petitioner portray the beneficiary as the individual responsible for 
maintaining production and quality control standards, for providing technical support and troubleshooting 
technical problems, for maintaining inventory levels and setting and maintaining budgets and costs controls, 
as well as, security, purchasing, shipping, and maintenance. These are duties that are typical of a position 
directly involved in the day-to-day operations of the petitioner. The petitioner does not explain how these 
duties encompass the high level responsibilities specified in the definition of managerial capacity. The 
petitioner and counsel also depict the beneficiary as directly involved in staff recruitment, staff training, 
supervising employees on production and printing lines, organizing work schedules and formulating training 
manuals and procedures. This description depicts an individual engaged in a supervisory role. If the 
beneficiary's duties involve supervising employees, the petitioner must establish that the subordinate 
employees are supervisory, professional, or managerial. See § 10 1 (a)(44)(A)(ii) of the Act. 
In this matter, the petitioner initially claimed that the beneficiary would supervise employees on the 
production and printing lines. In the petitioner's October 2002 response to the director's request for evidence, 
the petitioner expanded upon the type of job positions under the beneficiary's supervision by identifying the 
beneficiary's subordinates as a night shift supervisor, three mastering machine operators, a graphics and 
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printing manager, a packaging and warehouse manager, and a purchasing manager. The petitioner did not 
provide sufficient evidence to establish that any of these employees supervised subordinate staff members or 
managed a clearly defined department or function such that they could be classified as managers or 
supervisors. 
In the petitioner's February 2003 response to the director's request for evidence, the petitioner identified the 
beneficiary's subordinates as a night shift equipment operator and supervisor, a night shift equipment 
operator, three-day shift equipment operators, an injection day shift supervisor, an injection night shift 
supervisor, and nine injection line operators. Although the petitioner labeled three of the beneficiary's 
subordinates' positions as supervisory positions, the petitioner offered no evidence or description sufficient to 
establish that the duties of the positions comprised primarily supervisory duties rather than the responsibility 
of a senior team member. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of Calzjornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). The 
AAO acknowledges counsel's assertion on appeal that the day shift injection supervisor supervises nine 
employees, however, without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 1980). Providing a title for a position is not 
sufficient to establish the duties of that position. 
Moreover, the petitioner's initial iteration of the beneficiary's job duties limited the beneficiary's supervisory 
role to the production and printing lines. The petitioner's second iteration of the beneficiary's duties and the 
accompanying organizational chart showed that the beneficiary supervises seven individuals, four in the 
mastering department and three others involved in the graphics and printing department, the packaging and 
warehouse department, and the purchasing department. In the petitioner's third iteration of the beneficiary's 
duties and the accompanying organizational chart, the beneficiary supervises sixteen employees in only two 
departments, the mastering department and the production (or injection) department. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). Further, a 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 1971). Whether the inconsistencies arise because the petitioner has expanded its number of 
employees on the production and printing lines or whether the petitioner has attempted to expand the 
beneficiary's responsibilities to more closely align with the definition of managerial capacity, the record does 
not substantiate that the beneficiary's primary duty at the time the petition was filed involved the supervision 
of managerial, supervisory, or professional employees. 
Counsel's complaint that the director did not offer an analysis or rational basis for classifying the beneficiary 
as a first-line supervisor is not persuasive. Although the AAO acknowledges that the director's poor use of 
grammar made the decision difficult to read, the director clearly noted that the record contained contradictions 
both in the job descriptions provided and the disparate organizational charts submitted. The petitioner, thus, 
WAC 02 242 50628 
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had adequate notice that the record was inconsistent regarding the beneficiary's claimed managerial capacity. 
The AAO observes that the record in this matter, including the job descriptions provided by the petitioner and 
counsel and the accompanying organizational charts do not depict an individual engaged in a position that is 
primarily managerial. The petitioner and counsel's description of the beneficiary's position and the 
organizational charts show the beneficiary is engaged in providing the services and operational tasks of a 
supervisor. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The evidence in the 
record is insufficient to establish that the beneficiary's subordinates' duties are primarily managerial, 
supervisory, or professional. As observed above, counsel's assertion on appeal that one of the beneficiary's 
subordinates supervises nine employees is not adequately supported in the record and contradicts prior 
iterations of the beneficiary's duties. On review, the petitioner has not presented sufficient evidence to 
establish that the beneficiary's duties for the petitioner encompass primarily managerial duties. 
Beyond the decision of the director, the AAO observes that Skura Intercontinental Trading Co., Inc. 
employed the beneficiary when the petition was filed. The petitioner has submitted a California Form DE-6, 
Employer's Quarterly Wage Return that identifies this entity as the beneficiary's employer. As observed 
above, the petitioner is a limited liability company organized in New York that claims to own a 60 percent 
membership interest ind-which based on separate Internal Revenue Service 
(IRS) Forms 1065, U.S. Return of Partnership Income, is a separate entity. The petitioner has not sufficiently 
established its relationship with the beneficiary's actual employer. Although the companies appear related, 
the petitioner has not established that the beneficiary has been employed for at least one 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. 
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 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). For this additional reason, the petition will not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely w-ith the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.