dismissed EB-1C Case: Distribution Management

identifying data deleted tOed 
revent clearly unwarr~li 
P . of personal pnvac'Y invasIon 
FILE: 
INRE: Petitioner: 
Beneficiary: 
. NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u. S. Citizenship 
and Immigration 
Services 
Date: NOV 1 6 2010 
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. § I 153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find 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. 
The fee for a Form 1-290B is currently $585, but will increase to $630 on November 23,2010. Any appeal or 
motion filed on or after November 23,2010 must be filed with the $630 fee. 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, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.usds.gov 
-Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Missouri corporation that seeks to employ the beneficiary as one of its field distribution 
managers. 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. 
§ IIS3(b)(1 )(C), as a multinational executive or manager. The director denied the petition based on two 
independent grounds of ineligibility: 1) the petitioner failed to establish that the beneficiary was employed 
abroad in a qualifying managerial or executive capacity; and 2) the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and challenges the accuracy of the analysis that served 
as the basis for 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 I 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 primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether she 
would be employed in the United States in a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(44)(A), provides: 
Page 3 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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 support of the Form 1-140, the petitioner submitted a letter dated November 13, 2007, which included a 
brief description of the beneficiary's foreign and proposed employment with the U.S. entity. As the director 
included this information in his decision, the AAO need not repeat the job description in the current 
discussion. The director reviewed the job description and determined further information was needed in order 
to make a determination regarding the beneficiary's employment capacity with the foreign and U.S. 
employers. 
Accordingly, in a notice dated February 12, 2009, the director issued a request for additional evidence (RFE) 
instructing the petitioner to supplement the record with a more detailed description of the job duties the 
beneficiary performed during her employment abroad and the job duties she would perform during her 
-Page 4 
employment with the U.S. entity. The director expressly asked the petitioner to assign a percentage of time to 
each of her job duties. The petitioner was also instructed to provide organizational charts illustrating the 
beneficiary's placement within the U.S. and foreign entities. The director provided instructions advising the 
petitioner of the specific information that was deemed essential and explaining what information the 
petitioner could omit if necessary. 
In response, the petitioner submitted a letter dated March 24, 2009, written by the 
petitioner's director of human resources. The letter expounded on the brief statements provided earlier to 
describe the beneficiary'S employment abroad and her proposed position with the U.S. entity. 
indicated that the beneficiary'S foreign and U.S. positions involve similar tasks and responsibilities. He 
further explained that the beneficiary'S job consists of two parts where the first part involves establishing field 
distribution offices in the desired locations. The second part of the beneficiary'S job involves the actual 
management of distribution operations once the respective offices are opened for business. 
also provided a percentage breakdown of the elements that are involved in each of the two parts of the 
beneficiary's foreign and proposed positions. As the percentage breakdowns have been incorporated into the 
director's decision, the AAO need not repeat this information in the instant decision. 
The petitioner also provided an organizational chart that illustrates a multi-tiered organization with a 
hierarchy that places the beneficiary in a position that is directly subordinate to a division manager. The chart 
lists a delivery manager as the beneficiary'S direct subordinate, a delivery supervisor as the delivery manager's 
subordinate, and delivery carriers and field staff members as the subordinates of the delivery supervisor. 
After assessing the petitioner's submissions, the director determined that the petitioner failed to establish 
eligibility and therefore issued a decision dated May 8, 2009 denying the petition. The director concluded 
that the petitioner failed to establish that the beneficiary's employment with the foreign entity had been and 
that her proposed position with the U.S. entity would be primarily within a qualifying managerial or executive 
capacity. The director noted that the petitioner failed to provide documentation establishing the employment 
of the 1,000 employees named in one of the petitioner's submissions or further evidence of the 26 employees 
and contractors that were shown as part of the Idearc Media Operations branch of the petitioning entity. 
Next, the director addressed the job descriptions the petitioner provided, noting that the petitioner failed to 
establish how much of the beneficiary'S overall time is allocated to establishing field offices versus the time 
spent arranging for the delivery of telephone directories. The director surmised, based on the petitioner's 
statement of the number of field offices the beneficiary established, that the beneficiary spent and would 
spend "a substantial portion" of her work day establishing field offices. The director also found that the 
description of the remaining element of the beneficiary's position-management of distribution operations­
was inadequate, as it is described using vague and non-specific statements. 
On appeal, counsel challenges the accuracy of the director's interpretation of the material presented in 
response to the RFE, asserting that a number of the director's adverse findings were based on the lack of 
documentation that had not been previously requested. Counsel specifically refers to the director's finding 
that the petitioner failed to provide documentation of the approximately 1,000 employees the petitioner listed 
in one of its submissions. Counsel accurately points out the RFE instruction that relieved the petitioner from 
having to provide such voluminous documentation and contends that no adverse finding should come from 
the petitioner's omission of unnecessary documentation. Counsel further contends that information about the 
Idearc Media Operations Division is irrelevant in the present matter, as it has nothing to do with the 
-Page 5 
beneficiary's position, and that as such, the petitioner is under no obligation to submit documentation of the 
26 employees who are part of a division that does not pertain to the beneficiary's foreign and proposed 
employment. 
Next, counsel addresses the director's adverse findings with regard to the beneficiary'S job descriptions. 
Namely, counsel states that the director misapplied the percentage breakdown based on the assumption that 
setting up field offices and managing them are responsibilities that the beneficiary carries out simultaneously. 
Counsel clarifies this misconception, explaining that the beneficiary first sets up the field offices and in the 
process of doing so, allocates her time to the four tasks that are necessary to set up or close down a field 
office. Counsel states that once the field office is set up with leased premises, furniture, office equipment, 
utilities, and communication services, the beneficiary then carries out the tasks that are required to actually 
manage the field office operation. 
In reviewing the supporting evidence in light of counsel's statements on appeal, the AAO finds that counsel 
has made valid points that help to clarify key aspects of the beneficiary's past and proposed positions. While 
the AAO concurs with counsel's assertion that the director's decision contained certain inaccuracies and 
certain findings that would not lead the AAO to make an ultimate finding that is unfavorable to the petitioner, 
the AAO finds that the director did not err in his overall conclusion with regard to the two grounds cited as 
the bases for denial. More specifically, the AAO finds that the petitioner has failed to meet key eligibility 
criteria in that it has failed to establish that the primary portion of the beneficiary's time was and would be 
allocated to the performance of tasks within a qualifying managerial or executive capacity. 
First, as noted above, the AAO acknowledges that the beneficiary'S job is comprised of two separate parts, 
where one part includes setting up field offices and the second part includes managing the operations of those 
field offices in the interim. With regard to setting up field offices, the petitioner has provided an explanation 
of the underlying tasks the beneficiary has and would continue to carry out. As previously concluded by the 
director, the AAO finds that these tasks do not require the management of supervisory, professional, or 
managerial employees; nor are they the tasks involved in managing an essential function. While counsel may 
argue that the beneficiary'S tasks fall within the latter category pertaining to a function manager, the AAO 
notes that the beneficiary's daily duties must demonstrate that the beneficiary manages the function rather 
than performs the duties related to the function. Here, the petitioner's explanation of the beneficiary's daily 
tasks during the course of setting up a field office are operational in nature in that the beneficiary performs 
them in order to ensure that the petitioner is able to provide its services on a daily basis. Both statute and case 
law have established that an employee who "primarily" performs the tasks necessary to produce a product or 
to provide services 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. 593, 604 (Comm. 
1988). 
Given the facts in the present matter, the petitioner has not provided an adequate explanation to clarify how 
much of the beneficiary'S time is actually spent setting up field offices versus the time the beneficiary spends 
managing those field offices. While the AAO acknowledges counsel's valid point that the tasks required to 
set up field offices are only performed during a particular phase of the business operation, the petitioner has 
failed to specify how much of the beneficiary'S time has been and would be allocated to that particular phase. 
The petitioner stated that the beneficiary has set up over 30 offices since January 2004. The AAO cannot 
determine that this aspect of the beneficiary'S job is something that is merely incidental to her foreign and 
Page 6 
proposed positions. Therefore, simply based on an assessment of one aspect of the beneficiary's employment, 
the AAO cannot conclude that the primary portion of the beneficiary's time has been and would be spent 
carrying out tasks within a qualifying capacity. 
Notwithstanding the above conclusion, the AAO will assess the other phase of the beneficiary's job that 
consists of managing a field office once it has been set up. Again, pursuant to 8 C.F.R. § 204.50)(5), the 
AAO considers the description of tasks and the corresponding percentage of time that is assigned to each 
given task. In the present matter, the director was correct in pointing out that the petitioner failed to provide a 
detailed description of the specific tasks that are involved in the second main component of the beneficiary's 
job. While the AAO is clear as to the degree of discretionary authority the beneficiary has over her 
subordinate personnel within the context of managing the field offices that are responsible for directory 
distribution, the beneficiary's specific daily tasks during this phase of her job require further clarification. 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). 
In the present matter, the petitioner has failed to provide a list of specific tasks. For example, the petitioner 
indicated that 10% of the beneficiary's time during the management phase of the operation would involve 
arranging physical distribution of directories. However, it is unclear how exactly the beneficiary goes about 
making such arrangements and how, if at all, the beneficiary's subordinates relieve her from having to carry 
out daily operational tasks of the business. The petitioner indicated that another 20% of the beneficiary's time 
is allocated to overseeing delivery managers in their administrative duties. However, the specific tasks that 
are involved in such oversight were not specified. The petitioner also failed to expressly delineate the tasks 
that are involved in managing payroll and other personnel issues, which consume 20% of the beneficiary's 
time. In other words, the petitioner did not state whether the beneficiary herself performs the payroll 
function, which would be deemed a non-qualifying task; nor did the petitioner indicate what types of 
personnel issues the beneficiary addresses, in addition to managing her direct subordinates, and what portion 
of this responsibility is devoted to the non-supervisory and non-professional field staff and delivery carriers 
who may fall under the beneficiary's supervision. 
In summary, the petitioner's discussion of the beneficiary's personnel management duties lacks overall clarity 
as to the types of tasks the beneficiary performed and would perform. Without a more definitive 
understanding of the beneficiary's specific daily tasks and the amount of time that was and would be allocated 
to those tasks, the AAO cannot conclude that the beneficiary was employed abroad or that she would be 
employed by the U.S. petitioner in a qualifying managerial or executive capacity. 
As a final note, service records show the petitioner's previously approved L-1 employment of the beneficiary. 
With regard to the beneficiary's L-l nonimmigrant classification, it should be noted that, each nonimmigrant 
and immigrant petition is a separate record of proceeding with a separate burden of proof; each petition must 
stand on its own individual merits. USCIS is not required to assume the burden of searching through 
previously provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. The approval of a nonimmigrant petition in no way guarantees that 
USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 
immigrant petitions after approving prior nonimmigrant 1-129 L-l 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.NY. 1989). 
Page 7 
Furthermore, if the previous nonimmigrant petition was approved based on similar assertions as those 
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 a prior approval that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 u.s. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 FJd 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Accordingly, 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.