dismissed EB-1C Case: Daycare

U.S. Citizenship 
and Immigration 
Services 
In Re : 11880614 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 26, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a company operating a children's daycare facility, seeks to permanently employ the 
Beneficiary as its president in the United States under the first preference immigrant classification for 
multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Texas Service Center denied the petition on multiple grounds, concluding that the 
Petitioner did establish, as required, that: 1) it had a qualifying relationship with the Beneficiary's 
former foreign employer; 2) the Beneficiary was employed in a managerial or executive capacity 
abroad prior to her entry into the United States as a nonimrnigrant; 3) the Beneficiary would be 
employed in a managerial or executive capacity in the United States; and 4) it had the ability to pay 
the Beneficiary's proffered wage. 
On appeal, the Petitioner states that the Director erred in his conclusions and asserts that it submitted 
sufficient evidence "to meet all the aspects of the requirements to qualify [the Beneficiary] for the 
classification." 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. Since the 
identified basis for denial below is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve appellate arguments regarding the remaining bases of denial. See INS v. Bagamasbad, 
429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision 
of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec . 516, 526 
n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise 
ineligible). 
I. LEGAL FRAMEWORK 
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. § 204.5(i)(3). 
II. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary acted in a 
managerial or executive capacity abroad. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
The statute defines an "executive capacity" as 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 regulation at 8 C.F.R. § 204.5(i)(5) requires the Petitioner to submit a statement that clearly 
describes the duties performed by the Beneficiary abroad. 
A. Duties 
As a preliminary matter, the Petitioner has not clearly articulated whether the Beneficiary qualified as 
a manager or executive in her former position abroad leaving initial uncertainty as to whether she acted 
in either qualifying capacity. For instance, on appeal, the Petitioner states that "the nature of the 
beneficiary's duties ... clearly shows that [the] Beneficiary is an Executive/Managerial level 
employee." A petitioner claiming that a beneficiary performed as a "hybrid" manager/executive will 
not meet its burden of proof unless it has demonstrated that the beneficiary primarily engaged in either 
managerial or executive capacity duties. See section 10l(a)(44)(A)-(B) of the Act. While in some 
instances there may be foreign duties that could qualify as both managerial and executive in nature, it 
is the petitioner's burden to establish that the beneficiary's foreign duties meet each criteria set forth 
in the statutory definition for either managerial or executive capacity. A petition may not be approved 
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if the evidence of record does not establish that the beneficiary was primarily employed in either a 
managerial or executive capacity abroad. 
To be eligible for L-lA nonimmigrant visa classification as a manager or executive, the Petitioner 
must show that the Beneficiary was employed abroad in a position involving the high-level 
responsibilities set forth in the statutory definition at section 10l(a)(44)(A)(i)-(iv) or (B)(i)-(iv) of the 
Act. If the record does not establish that the foreign position meets all four of these elements, we 
cannot conclude that it was a qualifying managerial or executive position. 
If the Petitioner establishes that the foreign position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary was primarily engaged in managerial or 
executive duties abroad, as opposed to ordinary operational activities alongside the foreign employer's 
other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining 
whether a given beneficiary's foreign duties were primarily managerial or executive, we consider the 
description of the foreign job duties, the foreign employer's organizational structure, the duties of a 
beneficiary's subordinates employees abroad, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the foreign business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business abroad. 
The Petitioner stated that the Beneficiary was the "owner and sole proprietor" of a construction 
company based in Pakistan and indicated that she began acting in this role in 2001 until her entry into 
the United States as a nonimmigrant in March 2014. In a letter submitted in response to the Director's 
request for evidence (RFE), the foreign employer explained that it "has a distinctive edge within [the] 
local industry" owning the "largest fleet of construction machinery and equipment." The foreign 
employer further stated that the Beneficiary was instrumental in "policy making throughout the 
company," "setting overall corporate guidelines," and "hiring, firing, role changes, salary 
recommendations, and terminations from projects." The foreign employer submitted the following 
duties for the Beneficiary's foreign position: 
Overall Management and Direction of Company including Business Development 
50% 
• Formulate 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 reserve 
levels to ensure that all legal and regulatory requirements are met. 
• Maintain current knowledge of organizational policies and procedures, federal and 
state and directives, and current accounting standards. 
Financial Analysis 30% 
• Monitor fundamental economic, industrial, and corporate developments through 
the analysis of information obtained from financial publications and services, 
investment banking firms, government agencies, trade publications, company 
sources, and personal interviews. 
• Prepare plans of action for investment based on financial analysis. 
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• Reviewing and analyzing data relating to market conditions, sales reports, 
establishing and implementing policies to manage and achieving marketing goals 
and reviewing and investment activities. 
• Interpret data affecting investment programs, such a prices, yield, stability, future 
trends in investment risks, and economic influences. 
Client Relationship Management 10% 
• Establishing liaison with local businesses, CIVIC, financial institutions and 
government agencies in Pakistan and maintain contact with prospective clients. 
• Negotiating with clients and new related businesses. 
People Management 10% 
• Authority of Hiring and Firing employees and monitor and evaluate the 
performance of managerial employees; recommend and implement personnel 
actions such as promotions and dismissals. 
• Responsible for training and supervising the work done by new and subordinate 
employees including managerial and supervisory level employees. 
The Petitioner submitted a foreign duty description for the Beneficiary that does not sufficiently 
demonstrate that she primarily devoted her time to qualifying managerial duties abroad. Despite 
asserting that the Beneficiary acted in a managerial and executive capacity abroad from 2001 until her 
entry into the United States as a nonimmigrant in early 2014; there is little detail and no supporting 
documentation to substantiate her performance of managerial or executive-level duties abroad. The 
Beneficiary's asserted foreign duties are generic and could apply to a manager acting in any company 
or industry. For example, the Petitioner did not detail or document the policies or business strategies 
the Beneficiary formulated, the "business activities" she coordinated, the "business and investment 
opportunities" she determined, or the "organizational policies and procedures" she maintained. 
Likewise, the Petitioner did not specifically articulate or submit supporting evidence to substantiate 
the "plans of action for investment" the Beneficiary prepared, "marketing goals" she managed, 
"investment programs" she interpreted, clients she negotiated with, or training she conducted. 
Although we do not expect the Petitioner to detail and document ever one of the Beneficiary's 
managerial and executive-level tasks abroad, the lack of detail and supporting evidence on the record 
to substantiate these qualifying tasks is noteworthy. For instance, the Petitioner provided substantial 
documentation related to the foreign employer's operations dating from well before, and after, the date 
the petition was filed; including several notices from potential public works clients related to the 
foreign employer's prequalification or consideration for award, as well as bid notifications, contracts, 
award documents, work orders, and other similar documentation. However, none of this foreign 
employer documentation includes the Beneficiary's name, nor has the Petitioner explained her 
involvement in these activities to give this evidence probative value in substantiating her managerial 
or executive-level role abroad. In fact, in denying the petition, the Director noted that the Beneficiary's 
asserted foreign duties were broad and vague and that they did not specifically describe what she did 
on a daily basis while employed abroad. The Director also stated that the Petitioner did not explain 
the Beneficiary's duties in the context of the foreign employer's claimed construction business. 
However, the Petitioner provides no specific assertions to address the Director's conclusion nor does 
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it submit additional detail or documentary evidence to substantiate the Beneficiary's pnmary 
performance of managerial or executive duties abroad. 
Indeed, the only foreign employer documentation listing the Beneficiary are foreign utilities bills, such 
as electric and mobile telephone bills. The Beneficiary's inclusion in these documents is not indictive 
of a managerial or executive level employee, and with the absence of other corroborating evidence, 
suggests her involvement in non-qualifying operational duties while employed abroad. Whether the 
Beneficiary is a managerial or executive employee abroad turns on whether the Petitioner has sustained 
its burden of proving that their duties were "primarily" managerial or executive. See sections 
10l(a)(44)(A) and (B) of the Act. Here, the Petitioner does not document what proportion of the 
Beneficiary's foreign duties were managerial or executive functions and what proportion were non­
qualifying. The Petitioner provided supporting evidence indicating the Beneficiary's involvement in 
administrative or operational tasks abroad but did not quantify the time she spent on these duties as 
compared to qualifying managerial or executive duties. For this reason, we cannot determine whether 
the Beneficiary is primarily performing the duties of a manager or an executive abroad. See IKEA US, 
Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
The fact that the Beneficiary managed or directed a portion of the foreign business does not necessarily 
establish eligibility for classification as a multinational manager. By statute, eligibility for this 
classification requires that the duties of a foreign position be "primarily" managerial or executive in 
nature. Sections 10l(A)(44)(A) of the Act. Even though the Beneficiary may have exercised 
discretion over some of the foreign employer's day-to-day operations and possessed some authority 
with respect to discretionary decision-making, the position descriptions alone are insufficient to 
establish that his foreign position was primarily managerial or executive in nature. 
B. Staffing and Operations 
If staffing levels are used as a factor in determining whether an individual was acting in a managerial 
or executive capacity, the reasonable needs of the foreign organization are taken into account in light 
of the overall purpose and stage of development of the organization. See section 101 (a)( 44 )( C) of the 
Act. 
The foreign employer indicated in the Beneficiary's duty description that she was responsible for 
training and supervising "managerial and supervisory level employees." Therefore, it appears that the 
Petitioner asserted that the Beneficiary qualified as a personnel manager. The statutory definition of 
"managerial capacity" allows for both "personnel managers" and "function managers." See section 
10l(a)(44)(A) of the Act. Personnel managers are required to primarily supervise and control the 
work of other supervisory, professional, or managerial employees. Contrary to the common 
understanding of the word "manager," the statute plainly states that 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." Id. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 204.5(j)(2). Since the 
Petitioner does not specifically assert that the Beneficiary qualified as a function manager abroad, we 
will only consider whether she was employed as a personnel manager. 
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The Petitioner provided a foreign organizational chart reflecting that the Beneficiary supervised a chief 
executive officer overseeing an executive project manager, an executive manager, and two project 
managers. The chart further reflected that the executive project manager supervised an accountant 
and a supervisor; and that one of the project managers oversaw a resident engineer, a site engineer, a 
storekeeper, and a site supervisor. Meanwhile, the other project manager was shown to oversee 
another resident engineer, an associate engineer, and another supervisor, while the chart also indicated 
that the executive manager supervised a purchase manager and an "office boy." 
However, the Petitioner did not submit duty descriptions for the Beneficiary's claimed foreign 
subordinates as necessary to sufficiently substantiate these claimed subordinate positions abroad. This 
is a noteworthy evidentiary deficiency, since the positions titles for the Beneficiary's asserted 
subordinate supervisors are generic titles such as "executive project manager," "project manager," and 
"executive manager." There are no details as to the duties and tasks of these claimed supervisors or 
explanations of their exact role within the foreign business. In fact, the Director directly discussed 
this material deficiency in denying the petition; however, the Petitioner does not address this on appeal 
or submit additional evidence to substantiate her claimed subordinate supervisors abroad. Further, the 
Petitioner submitted no supporting evidence to substantiate the Beneficiary's asserted personnel 
authority over claimed supervisors or managers abroad or documentation to corroborate her delegation 
of duties to these asserted foreign subordinates. See 8 C.F.R. § 204.5(j)(2). It is questionable that the 
Petitioner provides no supporting documentation to demonstrate the Beneficiary's claimed personnel 
authority over subordinate supervisors and managers, despite claiming that she acted in this role for 
over 13 years beginning in 2001. Therefore, the Petitioner did not establish that the Beneficiary 
qualified as a personnel manager abroad based on her supervision of subordinate supervisors or 
managers. 
In the alternative, the Petitioner did not demonstrate that the Beneficiary qualified as a personnel 
manager based on her supervision of subordinate professionals. To determine whether a beneficiary 
managed professional employees, we must evaluate whether the subordinate positions required a 
baccalaureate degree as a minimum for entry into the field of endeavor. C/ 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation"). Section 10l(a)(32) of the Act, 
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." Therefore, we must focus on the level of education required by the position, rather than 
the degree held by the subordinate foreign employees. The possession of a bachelor's degree by a 
subordinate employee does not automatically lead to the conclusion that this employee was employed 
in a professional capacity. 
The Petitioner did not sufficiently establish that the Beneficiary supervised professional subordinates 
abroad. First, we note that the Petitioner does not explicitly assert that the Beneficiary oversaw 
professional subordinates abroad. Further, the Petitioner provides no supporting evidence to 
corroborate the Beneficiary's supervision of professional subordinates abroad, such as the education 
levels of these employees, their duties, or evidence of any bachelor's degrees held by them. In 
addition, the Petitioner provided no evidence to support the Beneficiary's personnel authority over 
professional subordinates or documentation reflecting her delegation of duties to these subordinates. 
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As such, the Petitioner did not sufficiently demonstrate that the Beneficiary qualified as a personnel 
manager abroad based on her supervision of professional subordinates. 
Again, as we have discussed, the Petitioner did not clearly indicate whether the Beneficiary was 
employed in a managerial or executive capacity abroad, but only ambiguously discussed her as an 
"Executive/Managerial level employee." Therefore, we will only briefly analyze whether the evidence 
demonstrates that the Beneficiary was employed as an executive capacity abroad. The statutory 
definition of the term "executive capacity" focuses on a person's elevated position. Under the statute, 
a beneficiary must have had the ability to "direct the management" and "establish the goals and 
policies" of an organization or major component or function thereof. Section 10l(a)(44)(B) of the 
Act. To show that a beneficiary "direct[ ed] the management" of an organization or a major component 
or function of that organization, a petitioner must show how the organization, major component, or 
function was managed and demonstrate that the beneficiary primarily focused on its broad goals and 
policies, rather than the day-to-day operations of such. An individual will not be deemed an executive 
under the statute simply because they have an executive title or because they "direct[ ed]" the 
organization, major component, or function as the owner or sole managerial employee. A beneficiary 
must have also exercised "wide latitude in discretionary decision making" and received only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. 
The Petitioner did not establish that the Beneficiary was employed in an executive capacity abroad. 
As noted, the Petitioner submitted a vague foreign duty description for the Beneficiary that does not 
credibly demonstrate she was primarily performing executive-level duties while employed abroad. 
Further, there is no supporting documentation to substantiate the Beneficiary's performance of 
executive-level duties abroad, such as documentation reflecting her setting of broad goals and policies 
for the organization and her overseeing subordinate supervisors and managers as claimed. In fact, as 
discussed, the Petitioner submitted substantial documentation dating from throughout the 
Beneficiary's asserted foreign employment reflecting its involvement in public works construction 
projects; however, none of this documentation substantiates her involvement in these activities in an 
executive capacity. Therefore, the Petitioner did not submit sufficient evidence to establish that the 
Beneficiary was employed in an executive capacity in her former position abroad. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary acted in a managerial 
or executive capacity abroad. 
ORDER: The appeal is dismissed. 
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