dismissed EB-1C Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 31,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an education business, seeks to permanently employ the Beneficiary as its "Director 
for Asian Market for Recruitment" under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary had been employed in a managerial or executive capacity 
for the foreign entity. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary's previous 
L-1 A approval, based on the same facts regarding the Beneficiary's foreign employment, should 
have resulted in a favorable approval ofthis Form I-140, Immigrant Petition for Alien Worker. The 
Petitioner contends that the Beneficiary directed an essential function for the foreign entity and thus 
qualifies as a manager. 1 
Upon de novo review we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa 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. 
A United States employer may file a Form I-140 to classifY a beneficiary under section 203(b )(1 )(C) of 
the Act as a multinational executive or manager. The petition must include a statement from an 
1 The Petitioner does not claim that the Beneficiary worked in an executive capacity. Accordingly, we restrict our 
analysis to eligibility under the statutory definition of managerial capacity. 
Matter of S-A-, Inc. 
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(j)(3). 
The Act defines the term "managerial capacity" as an assignment within an organization in which 
the employee primarily manages the organization or a department, subdivision, function, or 
component; supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function; if the employee directly supervises other employees, 
has the authority to take personnel actions, or if no other employee is directly supervised, functions 
at a senior-level within the organization 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 101(a)(44)(A) ofthe Act. 
II. EMPLOYMENT IN A MANAGERIAL CAPACITY ABROAD 
The Director denied the petition determining that the record did not include a sufficiently detailed 
description of the Beneficiary's duties for the foreign entity and that the record did not include 
sufficient evidence to establish that the Beneficiary managed an essential function, as the Petitioner 
claimed. 
The Petitioner states that it provides academic enrichment programs for international students to 
successfully matriculate in the U.S. system and that its business develops and recruits international 
students for these programs in Asia. The Petitioner asserts that it depends on international 
recruitment abroad to bring in business and that the Beneficiary oversees this critical component 
both "domestically in the U.S. in the past year and a half and during his 6-year service at [the foreign 
entity]." The Petitioner claims that the Beneficiary directed and organized a marketing campaign for 
the Petitioner's products through agents, partner organizations, and individually to the entire region, 
and that his position did not involve actual recruitment. The Petitioner avers that marketing and 
recruitment are an essential function and that the Beneficiary is the manager of this essential 
function. 
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. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that a beneficiary will manage an essential 
function, a petitioner must clearly describe the duties to be performed in managing the essential 
function, or more specifically, identify the function with specificity, articulate the essential nature of 
the function, and establish the proportion of a beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. § 204.5(j)(5). In addition, a petitioner's description of a 
beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than 
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Matter of S-A-, Inc. 
perform duties related to the function. See Matter of Z-A -, Inc., Adopted Decision 2016-02 (AAO 
Apr. 14, 2016). 
We will address both the foreign entity's description of the Beneficiary's duties as well as the 
foreign entity's staffing to determine whether the Petitioner established that the Beneficiary was a 
function manager abroad. We note that when reviewing staffing levels as a factor in determining 
whether an individual is acting in a managerial or executive capacity, we must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section 1 01 (a)( 44 )(C) of the Act. 
A. Duties 
When examining the executive or managerial capacity of a beneficiary, we will look first to a 
petitioner's description of the job duties. See 8 C.F .R. § 214.2(1)(3 )(ii). The definitions of executive 
and managerial capacity have two parts. First, the petitioner must show that the beneficiary will 
perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). Second, the petitioner must prove that the beneficiary 
will be primarily engaged in managerial or executive duties, as opposed to ordinary operational 
activities alongside the petitioner's other employees. See, e.g., Family Inc. v. USC IS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
The Petitioner initially stated that the Beneficiary "directed a major function of the Subsidiary [the 
Beneficiary's foreign employer] which includes creating and managing agencies in order to target 
new markets and potential leads in Asian regions," and that he "supervised independent contractors 
and subcontractors for two Agents and three Educational Agencies'' "while holding a senior position 
to carry out the activities of the managed function." The Petitioner asserted that the Beneficiary 
"also managed an essential function within the Subsidiary, which is new business creation and 
recruitment in the Asian markets," without which the Petitioner "would not have a pipeline to recruit 
new students." The Petitioner noted that the Beneficiary had full discretion to initiate talks and 
finalize agency agreements and memorandums of understanding and also interacted with 
senior-level managers of independent contractors and educational agencies. 
In response to the Director's request for evidence for a more detailed description ofthe Beneficiary's 
duties for the foreign entity, including "actual specific day-to-day tasks," the Petitioner essentially 
re-stated the initial description as follows: 
• [The Beneficiary] directed a major function of the Subsidiary which includes 
creating and managing agencies with a purpose of targeting new markets and 
potential leads in Asian regions. (20%) 
• [The Beneficiary] managed the Independent Agent, in China who 
controls three Subcontractors. . . . Other Independent Contractors [the 
Beneficiary] manage[ d] are and in Korea who operate 
Matter of S-A-, Inc. 
more than 15 agencies. [The Beneficiary] further managed three mam 
Educational Agencies in China, Korea, and Japan .... (50%). 
• [The Beneficiary] also managed an essential function within the Subsidiary, 
which is new business creation and recruitment in the Asian markets. This is an 
essential function of the Subsidiary because [the Beneficiary] created 90% of the 
Company's business through the leads that he created from partnerships and 
strategic Agency Agreements. Without [the Beneficiary's] performance as 
Director of Asian Market for Recruitment, the Company would not have a 
pipeline to recruit new students[.] (30%) 
In the repetitive descriptions of the Beneficiary's duties for the foreign entity, the Petitioner 
emphasizes that the Beneficiary is a function manager and that the function managed is essential. 
However, the Petitioner does not provide a detailed description of the Beneficiary's actual 
day-to-day duties as those duties relate to the claimed essential function. 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). Moreover, the statements regarding 
the Beneficiary's employment capacity in essence repeat the language of the statute or regulations 
and do not satisfy the Petitioner's burden of proof. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. at 
1108; Avyr Assocs .. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Based on the descriptions provided, it appears that the foreign entity targets new markets and 
potential leads in Asian regions, and creates new business and recruits students in the Asian markets. 
The Petitioner, however, does not identify the Beneficiary's particular duties as they relate to 
marketing and recruiting potential students for the petitioning organization's business. The 
Petitioner also asserts that the Beneficiary supervised or managed independent contractors and 
subcontractors "while holding a senior position to carry out the activities of the managed function .. , 
However, the fact that the Beneficiary will manage or direct a business, or a portion of the business, 
does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial capacity within the meaning of section 101(a)(44) of the Act. By statute, eligibility for 
this classification requires that the duties of a position be "primarily" managerial in nature. Sections 
101(A)(44)(A) ofthe Act. 
Here, the record does not include sufficient detail regarding the specifics of the Beneficiary's routine 
activities to analyze. The record does not include evidence of who negotiates and writes the 
contracts, who prepares each contract amendment with registration and processing information, and 
who prepares the advertisements used to market the Petitioner's program and which are provided to 
the agencies and contractors. The record does not identify the Beneficiary's day-to-day duties 
involved in managing the contractors, agencies, and education agencies. The Petitioner does not 
delineate the tasks the Beneficiary performs and the tasks he delegates. The record does not include 
descriptions of duties demonstrating that the Beneficiary's duties are managerial and not 
administrative in nature. While the Beneficiary may have exercised discretion over the foreign 
entity's operations, including entering into new agency contracts, and may have possessed the 
requisite level of authority with respect to discretionary decision-making, the position descriptions 
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Matter of S-A-, Inc. 
here are insufficient to establish that his actual duties would be primarily managerial in nature. 
Without additional detailed information on the Beneficiary" s day-to-day duties and actual position at 
the foreign entity, the Petitioner has not established that the Beneficiary performed primarily as a 
manager. 
B. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed managerial capacity of a beneficiary, including the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
relieve a beneficiary from performing operational duties, the nature of the business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business. 
The foreign entity's organizational chart depicts the Beneficiary as the "Director of Asian Market for 
Recruitment" and lists two individual agents and three educational agencies (China, Korea, and 
Japan) as reporting to the Beneficiary. The record includes a second chart noting: that one of the 
individual agents is involved with three other entities; that the second individual agent is involved 
with 15 agencies; and, the names of the three educational agencies. The record includes a few 
agency agreements and several memorandums of understanding with other businesses, some of 
which appear on the second organizational chart. These agreements, however, do not include 
sufficient detail to establish that the agents, agencies, and businesses involved perform the 
operational, supervisory, and administrative tasks of the foreign entity's business, and thereby 
relieve the Beneficiary from performing non-qualifying duties. The record does not clearly set out 
the interaction, obligation, and responsibilities of the Beneficiary and the agents, agencies, and 
contracts he claims to supervise or manage. 
The Petitioner asserts that recruiting and creating new business "is an essential function of the 
Subsidiary because the Beneficiary created 90% of the Company's business through the leads that he 
created from partnerships and strategic Agency Agreements." This statement indicates the 
Petitioner's belief that the Beneficiary is an essential employee, not that the recruitment and creation 
of new business is an essential function. Even if considering that the Petitioner meant to identifY 
recruiting and creating new business as a specific function and that such overseas recruitment of 
potential students is essential to the Petitioner's business, the Petitioner attributed only 30 percent of 
the Beneficiary's time to managing this function. As noted above, the Petitioner provides minimal 
information regarding the actual tasks that are involved in managing this function. The agreements 
do not include sufficient detail to ascertain and analyze the Beneficiary's responsibilities and 
obligations and to determine whether his duties in relation to the agreements were managerial or 
administrative in nature. 
The Petitioner also identifies a "major function of the Subsidiary" as "creating and managing 
agencies with a purpose of targeting new markets and potential leads in Asian regions." The 
Petitioner does not detail what is involved in "creating agencies" and the evidence of record does not 
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Matter of S-A-, Inc. 
shed further light on the nature of this function. The record also does not include evidence of the 
Beneficiary's actual duties in relation to "directing" this function. 
The Petitioner indicates that the Beneficiary spent 50 percent of his time managing the independent 
agents and agencies. The Petitioner does not expound upon the duties involved in managing the 
agents and agencies, and the agreements and memorandums of understanding do not identify the 
Beneficiary's specific role. The Petitioner has not articulated a specific function that included the 
majority of the Beneficiary's time, has not adequately described the essential nature of a specific 
function, and significantly has not corroborated its assertions that the Beneficiary will manage the 
function rather than perform the duties relating to the function. 
The record also does not include sufficient evidence to demonstrate that the Beneficiary is a 
personnel manager. 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." Section 101(a)(44)(A)(iv) of the Act. If a beneficiary 
directly supervises other employees, or outside resources, 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). The Petitioner has not established that the Beneficiary had 
subordinate employees at the foreign entity to supervise and to carry out the operational and 
administrative tasks associated with the foreign entity's responsibility to promote the Petitioner and 
provide students for the Petitioner's programs. The record does not establish that the Beneficiary 
will primarily supervise managers, supervisors, or professional employees. 
The Petitioner has not established that the Beneficiary's position for the foreign entity IS a 
managerial position. 
III. PRIOR APPROVAL 
On appeal, the Petitioner asserts that the evidence used to document that the position abroad 
qualified as a managerial position resulted in the approval of the Beneficiary's L-lA nonimmigrant 
visa, and thus, should also be sufficient for the approval of the immigrant visa petition at hand. 
Because the record of proceedings of the approved petition is not before us, the Petitioner has not 
shown that the evidence is essentially the same in each petition. In any event, the other approval is not 
binding on us in the adjudication of the present appeal. Further, if the previous nonimmigrant petition 
was approved based on the same evidence contained in the current record, the approval would 
constitute an error on the part of the Director. 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary was 
employed in a managerial capacity for the foreign entity. 
Matter of S-A-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-A-, Inc., ID# 749766 (AAO Oct. 31, 2017)