dismissed EB-1C Case: Construction Materials Manufacturing

(b)(6)
DATE: JUL 2 8 2014 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The 
preference visa petition was initially approved by the Director, Nebraska Service Center. 
On further review of the record, the director determined that the petitioner was not eligible for the benefit 
sought. Accordingly, the director properly served the petitioner with a notice of his intention to revoke the 
approval of the preference visa petition, and his reasons therefore. The director ultimately revoked the 
approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner is a California corporation that operates as a manufacturer of construction materials . It seeks to 
employ the beneficiary as its plant superintendent. 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 revoked approval of the petition based on the conclusion that the petitioner failed to establish 
that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
I. TheLaw 
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. 
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Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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 addition, with regard to the revocation of a previously approved petition, section 205 of the Act, 8 U.S.C. 
§ 1155, states: "The Attorney General may, at any time, for what he deems to be good and sufficient cause, 
revoke the approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
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NON-PRECEDENT DECISION 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citingMatter ofEstime, 19 I&N 450 (BIA 1987)). 
II. Procedural History 
The record shows that the petition was filed on November 5, 2012 and was accompanied by the petitioner's 
supporting statement, dated October 22, 2012. With regard to the beneficiary's position with the foreign 
entity, the petitioner stated that the beneficiary was employed as an electronics department manager. The 
petitioner stated that during the tenure of the beneficiary's employment abroad he "was solely responsible for 
ensuring the proper operation of all automation, [and] controls and electrical systems at three manufacturing 
plants" that were operated by the beneficiary's foreign employer in Israel. The petitioner further stated that 
the beneficiary was employed at a "senior level" and that he "interacted with plant employees, suppliers, and 
vendors to ensure that the plants' electrical, automation and control needs were effectively and timely met." 
The petitioner provided the following additional information regarding the beneficiary's employment abroad: 
As the leader of the Electronics Department, [the beneficiary] was solely responsible for the 
functions he managed. The staff consisted of six electricians that would take care of the day 
to day repairs and maintenance of the automation, control and electrical systems. [The 
beneficiary] was responsible for assigning their tasks, guiding their daily work and 
continuously evaluating their work development. He had significant input on their hiring, 
advancement and if necessary, disciplinary action. Using his team of expert electricians, [the 
beneficiary] kept the three plants operating on a 24/7 basis by constantly evaluating existing 
electrical systems, anticipating plant electrical needs and making [sic] ordering necessary 
repairs and/or improvements. 
* * * 
As the ultimate authority within the Electronics Department, the beneficiary was solely 
responsible for the day to day operations of the Electronics Department. With limited 
intervention by the plant management[, the beneficiary] performed the following (non­
exhaustive list) duties: 
• Managed, directed and oversaw plant electricians; 
• Directed the installation of new equipment and systems; 
• Established electrical and electronic maintenance policies and procedures; 
• Directed troubleshooting issues; 
• Supervised all maintenance . . .. 
On February 26, 2013, the director issued a request for evidence (RFE), instructing the petitioner to provide a 
detailed description of the beneficiary's employment abroad, complete with the duties performed and the time 
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allocated to each duty. The director also asked the petitioner to provide a copy of the foreign entity's 
organizational chart depicting the staffing hierarchy and the beneficiary's position therein. 
In response, the petitioner provided the following breakdown of the beneficiary's job duties during his 
employment with the foreign entity: 
• Managing, directing and overseeing 9-10 professional-level electricians and an electronic 
software hardware 
specialist at three plants. 80% 
• Supervised the maintenance of all plant electrical systems including: PLC debugging and 
programming, ac/dc motors and drives installation and application, personal computer 
software and hardware installation and repair. 5% 
• Directed the installation of new equipment and systems. 3% 
• Established electrical and electronic maintenance policies and procedures. 3% 
• Directed troubleshooting issues. 3% 
• Established purchase of electrical electronic spare parts. 3% 
• Diagnosed electrical, mechanical and operating malfunctions. 3% 
The petitioner also provided the requested organizational chart pertaining to the foreign entity. The chart 
depicts the beneficiary's position as directly subordinate to the VP of operations. The beneficiary is shown as 
overseeing a total of eight employees with three subordinates working at each of two plants ~nd two 
subordinates working at the third plant. All eight employees were shown as having the position title of 
electrician. Although the chart includes an IT hardware employee, that individual is shown as being directly 
subordinate to the VP of finance/CFO, whose position is depicted on the parallel tier as that of the 
beneficiary's immediate supervisor- VP operations. 
On September 4, 2013, subsequent to the approval of the petition, the director issued a notice of intent to 
revoke (NOIR). The director reviewed the information the petitioner previously provided in support of the 
petition with regard to the types and number of employees under the beneficiary's supervisory control and 
determined that the petitioner failed to establish that the beneficiary's subordinates were professional 
employees, despite the petitioner's use of the term "professional-level" when referring to those subordinates. 
The director pointed out that the petitioner provided no evidence that the beneficiary's subordinates had 
bachelor's degrees or that such degrees were necessary to the performance of their respective job duties. 
In response to the NOIR, the petitioner provided a statement from counsel, dated October 2, 2013, who stated 
that, in addition to being a supervisory manager, the beneficiary was also a function manager. Counsel 
claimed that the beneficiary managed three senior electricians, who were supervisory employees. Counsel 
stated that the beneficiary can be both a supervisory and a function manager, asserting that the two are not 
mutually exclusive. The petitioner also provided a response statement reiterating several of counsel's points. 
Specifically, the petitioner claimed that the beneficiary was employed in the role of a function manager, who 
was responsible for the foreign entity's electronic control systems at three different plants. The petitioner 
restated, verbatim, the job description with corresponding percentage breakdown that was previously 
provided in the petitioner's RFE response statement. The petitioner went on to state that the beneficiary was 
employed at a senior level with respect to the management of electrical functions and had ultimate authority 
over daily electrical projects he managed at each of the foreign entity's three plants. The petitioner claimed 
that the beneficiary assigned projects to electrical teams at each plant and negotiated with outside vendors if 
he determined that in-house employees would be unable to perform the necessary work. The petitioner 
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claimed that the beneficiary was not a first-line supervisor and that he supervised the work of senior 
electricians who played supervisory roles. The petitioner claimed that the beneficiary supervised a combined 
group of "nine to ten" employees. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to overcome the 
adverse findings listed in the NOIR. Accordingly, in a decision dated October 19, 2013, the director revoked 
the approval of the petitioner's Form I-140, concluding that the petitioner failed to establish that the 
employees the beneficiary supervised during his employment abroad were professionals. The director also 
noted the petitioner's inconsistent claims with regard to the types and number of employees the beneficiary 
supervised; pointing out that the first time the petitioner claimed that the beneficiary supervised senior 
electricians was in response to the NOIR. This portion of the director's decision shall be withdrawn. The 
petitioner previously submitted an organizational chart of the foreign entity, depicting a vertical hierarchy 
among the electricians, which indicates that each plant had at least one supervisory electrician. The director 
noted that the petitioner initially claimed that the beneficiary supervised six electricians and later asserted that 
he managed nine to ten electricians, including three supervisory electricians. The director rejected the 
petitioner's claim that the beneficiary assumed the role of a function manager. 
Lastly, the director issued a finding with regard to an issue that was not previously addressed in the NOIR. 
Namely, the director observed that the company filing the Form I-140 was not the same as the entity where 
the beneficiary's U.S. employment would take place. In light of this information, the director determined that 
the petitioner failed to provide a valid job offer as required at 8 C.F.R. § 204.5(j)(5). 
The petitioner filed an appeal, disputing the director's adverse findings. 
Upon review, and for the reasons stated below, we find that the petitioner has failed to establish that the 
beneficiary was employed abroad in a primarily managerial or an executive capacity. Notwithstanding our 
decision to affirm the director's decision revoking the approval of the petitioner's Form I-140, we find that the 
director erroneous issued the decision on the basis of a finding that had not been previously addressed in the 
NOIR. The regulation at 8 C.P.R. § 205.2(b) mandates that the director must provide the petitioner with an 
opportunity to offer evidence in support of the petition and in opposition to the grounds alleged for revocation 
of the approval. Contrary to this requirement, the director's final notice of revocation included a new ground 
that had not been previously cited in the NOIR. Therefore, to the extent that the petitioner was not given the 
opportunity to provide evidence to overcome the new ground cited in the revocation, we hereby withdraw this 
ground as a basis for the revocation. 
ill. Issues on Appeal 
As indicated above, the primary issue to be addressed in this proceeding is the beneficiary's former 
employment with the foreign entity and whether such employment was in a qualifying managerial or 
executive capacity. 
In general, when examining the executive or managerial capacity of a given position, we review the totality of 
the record, starting first with the description of the beneficiary's job duties with the entity in question. See 
8 C.P.R. § 204.5(j)(5). Published case law has determined that the duties themselves will reveal the true 
nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Beyond the required description of the job duties, USCIS reviews 
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the totality of the record, including the employing entity's organizational structure, the duties of the 
beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary from 
performing operational duties, the nature of the business conducted, and any other factors that may contribute 
to a comprehensive understanding of a beneficiary's actual duties and role within the foreign entity. 
Turning first to the beneficiary's job description, we find that the petitioner provided inconsistent information 
as to the number and types of employees the beneficiary managed. While the petitioner's original supporting 
statement, dated October 22, 2012, indicated that the beneficiary's entire subordinate staff was comprised of 
six electricians, in its follow-up statement, which was submitted in response to the RFE, the petitioner 
claimed that the beneficiary's subordinate staff consisted of "9-10" employees and that those employees were 
"professional-level electricians and an electronic software hardware specialist." The petitioner created further 
confusion by its submission of an organizational chart that was inconsistent with the original and subsequent 
claims made in response to the RFE. As noted above, the organizational chart indicated that the beneficiary 
supervised a total of eight electricians and did not include a hardware software specialist among the 
beneficiary's subordinates. Rather, the chart indicated that while an IT hardware position was part of the 
foreign entity's organizational hierarchy, this position was subordinate to the VP of finance rather than to the 
beneficiary, whose position was subordinate to the VP of operations. 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, 591-92 (BIA 1988). 
Moreover, contrary to counsel's assertions on appeal, the petitioner may not simultaneously claim that the 
beneficiary is both a function and a personnel manager. 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 101(a)( 44)(A)(ii) of the Act, 
8 U.S.C. § 1101(a)(44)(A)(ii). Given that the very essence of a function manager is that he or she does not 
oversee the work of subordinate employees, the claim that the beneficiary is both a function and a personnel 
manager leads to a factual improbability within the context of a multinational manager or executive. 
The petitioner repeatedly claimed that 80% of the beneficiary's time was allocated to overseeing the work of 
his subordinates, therefore the petitioner cannot successfully establish that the beneficiary allocated his time 
primarily to the management of a function. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Furthermore, given the petitioner's inconsistent information with regard to the number and types of 
employees managed, the petitioner cannot successfully establish that the beneficiary allocated his time 
primarily to the management of a supervisory, managerial, or professional staff. It is noted that doubt cast on 
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of 
the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. 
Accordingly, in light of the numerous anomalies and inconsistencies described in the discussion above, we 
find that the petitioner failed to establish that the beneficiary's employment with the foreign entity was 
primarily within a qualifying managerial or executive capacity and on the basis of this adverse finding this 
petition cannot be approved. 
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IV. Conclusion 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.