dismissed EB-1C Case: Electric Power Equipment

(b)(6)
DATE: JUL 2 5 201~ 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:/Jwww.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 Rosen · 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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 corporation located in the State of Washington. It operates as an exporter of U.S.­
manufactured electric power equipment and seeks to employ the beneficiary in the United States as its vice 
president of finance and operations. 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 denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States 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. 
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 in which the 
employee primarily--
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(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. 
II. Procedural History 
The record shows that the petition was filed on May 2, 2013 and was accompanied, in part, by the petitioner's 
supporting statement, dated April 30, 2013, which included an organizational chart depicting the petitioner's 
staffing levels. The chart shows a company president at the top of the hierarchy followed by two vice 
president positions - one in charge of international purchasing and sales and the beneficiary in charge of 
finance and operations. Each vice president is depicted as having their own subordinate - a senior engineer 
working under the vice president of purchase and sales and a staff accountant directly subordinate to the 
beneficiary. The vice presidents are also shown as sharing control over the administrative and logistics 
department comprised of one manager and her subordinate as the administrative assistant. The record was 
supplemented with other supporting evidence in the form of the petitioner's corporate and financial documents 
as well as employee wage and tax statements showing employee salaries for 2011 and 2012. In addition, the 
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petitioner provided job descriptions for the petitioner's entire staff. The following was the job description 
provided for the beneficiary's proposed position: 
40% Overseeing financial matters to ensure [the petitioner]'s accomplishment of its 
financial goals, including the following: 
• Overseeing and monitoring power project actuarials , financial planning, 
budgeting, final account statements, working capital management, and financial 
analyses, etc. 
• Overseeing and directing flow of company funds; monitoring the performance of 
company investment and operations; ensuring effective control over company 
financials activities; assisting the President in approving each department's cost 
and expense proposals, improving cost effectiveness and overall performance; 
and providing support to other departments. 
• Overseeing and ensuring the timely filing of tax returns with the federal, state 
and city authorities, and making recommendations and suggestions to the 
President of the company on financial and operational budget efficiency. 
• Overseeing the preparation of year-end financial statements, corporate tax filings, 
and all other year-end financial documents; reporting [the petitioner]'s year-end 
financial status to [the foreign parent entity]'s Board of Directors; overseeing the 
preparation of monthly financial reports and submitting financial analysis to the 
President. 
• Overseeing cost control of sub[-]projects that are related to the company's export 
contracts, and optimizing the system. 
30% Overseeing the implementation of operational goals . . . to ensure the smooth 
operations of the company, and establishing supplier evaluation and customer credit 
rating systems, including the following: 
• Under the direction of the President, [the beneficiary] formulates and adjusts 
monthly, quarterly, and annual operational goals; engages in long-term and short­
term strategic, financial, and operational planning; and formulates operating and 
management policies and system . 
• Overseeing the financial and operational compliance with relevant federal, 
state, 
and local government regulations and licensing requirements to ensure continued 
business operations. 
• Establishing an evaluation system for U.S. suppliers .... [The beneficiary] has 
been fully utilizing her many years of experience in cost control in the power 
industry to establish a comprehensive supplier evaluation system. This system 
will be updated frequently and will be robust enough to compare three bids .... 
The system will also be able to provide the most optimized cost analysis based on 
the bids. After the contracts are entered into, [the beneficiary] directs 
coordination with the suppliers to ensure that the products meet the contract 
specifications and that the contract obligations are performed smoothly. 
• Establishing a customer credit rating system . 
. . . The rating system factors in 
the customer's market demand, room for further development, financial condition 
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and history of cooperation, as well as the unique character of each customer 
group . For new customers, a background check of the company and its 
customers will be conducted. [The beneficiary] has been responsible for 
establishing the rating system and overseeing the preparation of rating reports to 
the company's President on a regular basis to assist the company in efficiently 
selecting and serving customers. 
• Establishing and improving the product distribution operational procedures , such 
as quality inspection and training procedures with suppliers , and internal product 
inspection and problem resolution procedures. 
• Resolving customer complaints regarding product defect, delivery timing, and 
contract implementation issues. 
• In conjunction with Ms. the President, [the beneficiary] promotes, recruits or 
dismisses employees under her direction; and decides their salaries and bonuses 
based on their performance . 
25% Overseeing the Administrative & Logistics Department and the Finance Department, 
including the following: 
• Directing the Manager of the Administrative and Logistics Department, Ms. 
in carrying out all administrative and logistics functions and implementing all 
administrative and logistics procedures and policies to ensure the smooth daily 
operation of the company. 
• Meeting and discussing with Ms. regarding the efficiency of our 
administrative and logistics systems, such as the data management system , the 
quality control system, the customer complaint resolution system, the product 
supply and distribution system, and the contract management and implementation 
procedures, etc.; recommending methods to improve efficiency and reduce 
operational costs. 
• Overseeing the Finance Department's successful accomplishment of the tasks and 
goals related to financial and accounting matters of the company, including 
supervising the work of [the petitioner]'s accounting staff and ensuring the 
Finance Department's effective cooperation with other departments. Specific 
duties include overseeing the accounting staff's preparation of monthly , quarterly , 
and annual financial statements, federal and state corporate tax filings, as well as 
overseeing the accounting staff's preparation of profit-and-cost calculations for 
the company's projects. 
5% Coordinating with the Vice President of International Purchasing and Sales to ensure 
the financial goals of the company are accomplished, including the following: 
• Meeting and conferring with the Vice President of International Purchasing and Sales 
on a monthly , quarterly and annual basis to review profit/loss analysis and related 
reports to ensure that the company's overall financial goals are reached. 
• In conjunction with the Vice President of International Purchasing and Sales, [the 
beneficiary] makes decisions on major financial matters related to the purchasing and 
sales activities, subject to the President's final approval. 
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The petitioner also provided a list of functions the beneficiary has carried out to further illustrate the role she 
has assumed within the petitioner's organization. As one example, the petitioner described how the 
beneficiary assisted one customer company by meeting with its CEO to gather information and to ultimately 
use her knowledge of finance to "produce a detailed end-user analytical report" to help the customer introduce 
its product to new clients. As another example, the petitioner discussed the beneficiary's role as a liaison 
between a client company and the petitioner's parent company in order to bring the client's product to a new 
market in South America. The petitioner also indicated that the beneficiary assumes an integral role in 
conflict resolution by contacting suppliers regarding customer complaints. 
On October 3, 2013, the director issued a notice of intent to deny (NOID), informing the petitioner that the 
record 
lacks sufficient evidence to establish that the beneficiary would be employed in the United States in an 
executive capacity as claimed in . the petitioner's supporting documents. The director acknowledged the 
beneficiary's job description, which indicates that the beneficiary would oversee the petitioner's financial 
activities and determined that the petitioner did not provide sufficient evidence to establish that the 
beneficiary's role would be limited to overseeing, rather than performing, the petitioner's financial activities. 
The director also reviewed information provided in the petitioner's organizational chart, pointing out that the 
petitioner's finance department is comprised of a single employee who is claimed to have been on leave from 
October 2012 until March 2013 and who, based on her salary for 2012, as shown in the employee's IRS Form 
W-2, was likely to have been working on a part-time basis. The director questioned the plausibility of the 
beneficiary's role being limited to mere oversight given the unlikelihood of a single part-time employee being 
able to carry out all of the finance department's tasks. 
In response, the petitioner provided two statements, both dated November 4, 2013. One statement was from 
counsel, who pointed out the identical statutory definitions for managerial and executive capacity as applied 
in the immigrant and nonimmigrant contexts. Counsel asserted that in light of the beneficiary's prior approval 
of an L-1A nonimmigrant visa, which applied the same statutory definitions of managerial and executive 
capacity as are applied to the immigrant visa category being sought in the matter at hand, the beneficiary's 
eligibility has already been established. Counsel further asserted that the petitioner and its foreign parent 
organization should be considered "as a single multinational organization" thus justifying the need to consider 
the beneficiary's oversight of the foreign entity's employees, including a finance department manager and two 
staff accountants, as part of her job description. In addition, counsel stated contended that the director placed 
undue emphasis on the salary of one of the beneficiary's subordinates in the United States. 
In a separate statement, the petitioner reiterated counsel's request that United States Citizenship and 
Immigration Services (USCIS) consider all of the beneficiary's subordinates, including those employed by the 
foreign entity, prior to determining the beneficiary's eligibility. The petitioner added the foreign employees to 
a new organizational chart and the foreign employees' job descriptions, which were included in the response 
statement. The petitioner explained that the beneficiary's oversight of employees of both entities meet "the 
reasonable needs of a multinational organization" and discussed the petitioner's need for the beneficiary's 
services given the company's growing needs and an inadequate support staff. Notwithstanding the percentage 
breakdown, which indicated that the beneficiary focuses her time on matters concerning the U.S. entity, the 
petitioner indicated that the beneficiary spends some time overseeing matters concerning the foreign entity. 
In a decision dated December 5, 2013, the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary would be employed in the United States in a qualifying managerial or executive 
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capacity. The director acknowledged the petitioner's response to the NOID, finding that the petitioner 
provided little new evidence and added new information about the beneficiary's management of employees 
overseas, which was inconsistent with information that was originally provided. The director declined to 
consider the beneficiary's job duties with the foreign entity while employed by the petitioner in the United 
States, pointing out that the job duties performed abroad are not informative as to the beneficiary's role within 
the petitioning entity. The director went on to reject the petitioner's assertion that the beneficiary oversees 
employees from both the U.S. and foreign entities and noted that only one of the employees mentioned can 
actually be deemed to be a professional. Lastly, the director rejected counsel's assertion that the beneficiary's 
prior approval of an L-1A nonimmigrant petition should guide the director's determination regarding the 
beneficiary's eligibility in the instant matter. 
The petitioner subsequently filed an appeal supported by an appellate brief from counsel, who, once again, 
raises issues of the beneficiary's previously approved nonimmigrant petition and the beneficiary's supervision 
of employees who work for the overseas parent entity . 
Upon review, 
and for the reasons stated below , we find that the petitioner has failed to establish that the 
beneficiary will be employed in a primarily managerial or an executive capacity. 
III. Issues on Appeal 
As indicated above, the sole issue to be addressed in this proceeding is the beneficiary's proposed 
employment with the U.S. entity and whether the evidence provided thus far establishes that the beneficiary 
would be employed in the United States 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 proposed job duties with the petitioning 
entity. See 8 C.F.R. § 204.5G)(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), affd, 905 F.2d 41 (2d. Cir. 1990) . Beyond the required description of the job duties, USCIS 
reviews the totality of the record, including the petitioner'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 petitioner's business, and any other factors that may contribute 
to a comprehensive understanding of a beneficiary's actual duties and role within the petitioning entity. 
Turning first to the information provided in the initial supporting statement, the petitioner indicated that 40% 
of the beneficiary's time would be allocated to overseeing the petitioner's financial matters, including project 
actuarials, financial planning and budgeting, flow of company funds, various tax filings and preparation of 
financial statements and reports, and cost control of projects. However, with the exception of the job duties 
that fall specifically within the scope of the beneficiary's subordinate accountant, including the preparation of 
tax documents and financial statements and reports; it is unclear who would actually be carrying out the 
underlying tasks over which the beneficiary is to have oversight authority. For instance, it is unclear what 
role the beneficiary would have in overseeing the petitioner's financial planning and budgeting, or what tasks 
are involved in managing working capital. Further, while the petitioner indicated that the beneficiary's 
financial oversight would include "providing support to other departments," there is no information clarifying 
specifically what types of job duties would fall within this category or whether those job duties would be meet 
the statutory criteria of managerial or executive capacity. 
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The petitioner allocated another 30% of the beneficiary's time to overseeing the implementation of operational 
goals and establishing supplier evaluation and customer rating systems. However, the petitioner failed to 
establish that the latter portion of this category that deals specifically with establishing the two types of 
evaluation and rating systems fall within the guidelines of what is deemed to be within a managerial or 
executive capacity. While we do not question the value of the beneficiary's contributions to the petitioning 
organization, establishing and updating these two systems indicates that the beneficiary herself would gather 
various relevant data from suppliers and customers in order to create a finished product based on the 
information she gathers. 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). It is unclear how the underlying tasks that are required to create two distinct rating systems can be 
deemed as qualifying within a managerial or executive capacity. 
In addition, while the petitioner indicated that background checks would be necessary for new customers, 
there is no indication as to who would perform the background checks. Without further information, we 
cannot exclude the possibility that the beneficiary may partake in this non-qualifying task, thus adding to the 
time she would allocate to the performance of tasks that are outside the scope of what is deemed to be in a 
managerial or executive capacity. The petitioner also indicated that the beneficiary would assume a key role 
in resolving customer complaints regarding product defect, delivery, and contract implementation. However, 
the petitioner did not disclose the specific nature of the beneficiary's involvement, thus precluding a 
determination that the beneficiary's role is one that would involve the performance of tasks within a 
qualifying capacity . 
Lastly, the petitioner indicated that the beneficiary assists in recruiting and dismissing her subordinates and 
also takes part in deciding on the subordinates' salaries and bonuses. In reviewing employee salaries, 
however, we observe that, according to the employee salaries as shown in their respective Form W-2s, the 
salary of the administrative and logistics department manager, whom the beneficiary and the vice president of 
international purchasing and sales co-manage, exceeded the beneficiary's salary by more than $12,000. It is 
unclear why the beneficiary, who is claimed to have had input as to the salary paid to a subordinate, she 
would have agreed to pay that subordinate a salary that far exceeds her own. Further, while the vice president 
of international purchasing and sales and the beneficiary are depicted at the same organizational level and 
have similar position titles, which include the term "vice president" to indicate similar levels of authority , the 
beneficiary's 2012 salary fell more than $28,000 below that of her coworker. While counsel challenged the 
director's reliance on the salary of the beneficiary's subordinate in the United States as an indicator of the 
beneficiary's non-qualifying employment, it is reasonable to question the effect of the above described salary 
variances on the qualifying nature of the beneficiary's proposed employment. In other words, if the petitioner 
claims that the beneficiary oversees the work of an employee, a reasonable explanation should be offered to 
clarify why the subordinate receive a salary that far exceeded the beneficiary's salary. Similarly, when two 
employees are assigned similar position titles and placed on parallel tiers within a company's organizational 
hierarchy, a $28,000 salary discrepancy between the two employees should not go unexplained , as it gives 
rise to questions concerning the accuracy of the beneficiary's level of authority as compared to others within 
the organization. 
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On appeal, counsel contends that the director "exhibited partiality" when he declined to consider the 
beneficiary's previously approved L-1A nonimmigrant petition, which relies on the same statutory definitions 
of managerial or executive capacity. We find that the director properly rejected counsel's assertion, which 
was originally made in counsel's NOID response statement. Regardless of evidence that a prior nonimmigrant 
petition was approved, each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof. As such, 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. 
Furthermore, if the previous nonimmigrant petition was approved based on similar assertions and supporting 
evidence that are 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 prior approvals 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). 
Another contentious issue discussed on appeal is the beneficiary's continued supervision of employees who 
work for the petitioner's parent entity. Counsel stated, both on appeal and in response to the NOID, that the 
beneficiary oversees not only employees of the petitioning entity, but also several employees who work for 
the petitioner's parent entity abroad. Counsel asserts that overseeing the foreign entity's employees meets the 
reasonable needs of the U.S. and foreign entities and contends that the director's refusal to consider this aspect 
of the beneficiary's employees "is against legal and practical grounds." Counsel points out that the statutory 
language incorporates references to "the same employer" when referring to the beneficiary's proposed 
employment, suggesting that the petitioner and the foreign entity are part of the same organization and that 
the beneficiary's supervisory duties over the foreign entity's employees should be considered in concert with 
the job duties she performs directly for the U.S. entity. 
We find that counsel's assertions are not supported by statute or regulations. First, counsel's assertions are 
based on the understanding that the phrase "same employer" refers specifically to the foreign entity at its 
foreign location outside of the United States. This interpretation is incorrect as it overlooks the context of the 
statutory language, which expressly states that the provisions are to be applied to an individual who seeks to 
enter United States, thus implying that the purpose of the U.S. entry is to be employed in the United States. 
Second, counsel overlooks the statutes use of the term "or" when discussing the proposed employment. 
Specifically, the statue applies to an alien who seeks to enter the United States for the purpose of continuing 
to provide services to "the same employer, or to a subsidiary or affiliate thereof ... . " Section 203(b )(1 )(C) of 
the Act. (Emphasis added). In other words, the beneficiary's purpose for entering the United States must be 
for the purpose of working for one entity, as indicated by use of the term "or," rather than for multiple entities, 
i.e., the beneficiary's employer abroad and the proposed employer in the United States. Furthermore, the 
reference to "the same employer" simply indicates that the proposed employer is a branch of the foreign 
office. See 8 C.P.R. § 214.2(1)(1)(ii)(J) (for definition of the term "branch" in the nonimmigrant context of 
the L-1 visa). It would be illogical for the petitioner to file a petition on the beneficiary's behalf if the location 
of the prospective employer was someplace other than the United States. Here, counsel's assertions hinge on 
an implausible interpretation of the statutory language for which counsel offers no supporting evidence. 
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Accordingly, while the petitioner claims that the beneficiary will continue to intermittently provide services 
for the foreign entity by means of overseeing certain employees within the foreign entity's finance 
department, the petitioner has failed to establish that such oversight duties are related to the beneficiary's 
proposed position with the petitioning U.S. employer. Furthermore, the petitioner has provided no evidence 
to establish that the beneficiary's subordinates at the foreign entity play a role in supporting the beneficiary in 
her position with the petitioning U.S. entity. If that were the case, the petitioner would be required to provide 
evidence to establish the means by which it compensates the overseas employees for any services they would 
render specifically for the petitioner. The parent-subsidiary relationship between the foreign entity and the 
petitioner in no way permits the petitioner to comingle its finances or its staff with the foreign parent entity. 
As indicated in the supporting evidence, the petitioner and its foreign parent are two separate entities, despite 
their affiliation through common ownership or close business ties. 
In addition, while we do not dispute that the foreign and petitioning entitles are part of a common 
organization , the beneficiary's eligibility must be based on her proposed job with the petitioning U.S. entity. 
The very fact that the petitioner limited the description of the beneficiary's proposed employment to include 
only those activities that depict her role with respect to the U.S. entity and its employees further undermines 
counsel's assertion that the beneficiary's supervisory job duties abroad should be considered as part of her 
employment in the United States. Therefore, any job duties that the beneficiary would continue to perform 
directly for the foreign entity would be considered as being outside the scope of the beneficiary's role with the 
petitioner, as such duties would be performed for a separate entity and thus would be deemed irrelevant to the 
question of whether the proposed employment in the United States would be in a qualifying managerial or 
executive capacity . Furthermore, counsel erroneously relies on an unpublished decision where it was 
determined that the beneficiary met the requirements of serving in a managerial and executive capacity for L-
1 classification even though he was the sole employee. Counsel has furnished no evidence to establish that 
the facts of the instant petition, where the petitioner provided no evidence to establish that the foreign entity's 
employees in any way support the beneficiary's position with the petitioning entity, are analogous to those in 
the unpublished decision. Moreover, while 8 C.P.R. § 103.3(c) provides that this office's precedent decisions 
are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly 
binding. 
Finally, counsel asserts that the director 's decision was arbitrary and capricious and objects to the director's 
reference to the beneficiary's lack of professional subordinates, pointing out that the beneficiary would be 
employed in an executive capacity, which does not require that the beneficiary manage professional 
employees. While counsel is correct that employment in an executive capacity does not focus on the 
beneficiary having a staff of professional subordinates, the overall issue of the petitioner's staffing is highly 
relevant and cannot be overlooked when determining whether the beneficiary would be employed in a 
qualifying executive capacity. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization , and that 
person 's authority to direct the management of the organization or a major component. Section 101(a)(44)(B) 
of the Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization or a major component. Inherent to 
the definition, the organization must have a subordinate level of managerial employees for the beneficiary to 
direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
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the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." /d. 
In the present matter, by virtue of the staffing hierarchy the petitioner depicted in its organizational chart and 
the statements it submitted in support of the petition, the petitioner indicates that the purpose of the 
beneficiary's proposed employment is to direct the management of the petitioner's finances and operations. 
As indicated previously in this discussion, the petitioner has failed to establish that the employment of a 
single part-time accountant is sufficient to relieve the beneficiary from having to allocate her time primarily to 
the underlying operational tasks of the finance department to which the beneficiary would allocate 
approximately 40% of her time. As discussed earlier, the petitioner provided a job description that contained 
a number of vague references to the beneficiary's oversight responsibilities without disclosing who would 
actually perform the underlying tasks. The petitioner was similarly unsuccessful in establishing that the 
beneficiary's role with regard to operations was executed through primarily executive-level tasks. While we 
acknowledge the existence of an administrative and logistics department, which would assist the beneficiary 
in her role as vice president of operations, we nevertheless question the qualifying nature of several of the 
beneficiary's assigned job duties with regard to operations. Specifically, the petitioner failed to establish that 
creating and updating the systems for evaluating suppliers and rating customers are indicative of the 
beneficiary's role with respect to the petitioner's operations. Given that the petitioner assigned time 
allocations to four broad categories rather than to the job duties that comprise those categories, we are unable 
to determine precisely what percentage of time the beneficiary would allocate to each individual job duty. 
While we acknowledges that no beneficiary is required to allocate 100% of his or her time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to the proposed position. As previously stated, 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. at 604. Where, as here, the beneficiary's proposed position is 
comprised of both qualifying and non-qualifying tasks and where the petitioning entity has a limited support 
staff, it is critical for the petitioner to state which job duties the beneficiary would perform, establish what 
portion of the beneficiary's time would be allocated to qualifying versus non-qualifying tasks, and disclose 
who would perform the operational tasks that fall within the scope of the beneficiary's directorial 
responsibilities. Given the numerous evidentiary deficiencies discussed above, it cannot be concluded that the 
petitioner has provided the necessary information to establish that the beneficiary would allocate her time 
primarily to the performance of tasks within a qualifying executive capacity. 
The petitioner also failed to establish that the beneficiary would be employed in the capacity of a function 
manager, whose focus is on the management of an essential function rather than the management of 
personnel. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e., identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
8 C.F.R. § 204.5G)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
In this matter, the petitioner has not provided sufficient evidence to establish that the beneficiary would be 
relieved from having to allocate her time primarily to the performance of the non-qualifying tasks associated 
with the operational and financing components of the petitioner's organization. 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)). 
Accordingly, in light of the various ambiguities and lack of supporting evidence as discussed above, the 
petitioner has failed to establish that the beneficiary's proposed employment would be within a qualifying 
managerial or executive capacity and on the basis of this adverse finding this petition cannot be approved. 
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.