dismissed EB-1C Case: Engineering

identifgring data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
LIN 09 049 50780 MAY 0 6 2010 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reopen or reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
U 
Perry Rhew 
Chief, Administrative Appeals Office 
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 an Ohio corporation seeking to employ the beneficiary as its senior development engineer. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(l)(C), as a 
multinational executive or manager. The director denied the petition on two separate grounds of ineligibility: 
I) 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 the beneficiary would be employed in a 
managerial or executive capacity. On appeal, counsel challenges the director's analysis and disputes the 
grounds cited for 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 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)(l)(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 he 
would be employed in the United States in a qualifying managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. tj 1 101(a)(44)(A), provides: 
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. 5 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in 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 December 8, 2008, which included 
descriptions of the beneficiary's foreign and proposed employment. The petitioner claimed that the 
beneficiary's foreign and proposed employment fits the definition of managerial capacity. Accordingly, the 
petitioner listed the four criteria that are the basis of the statutory definition of "managerial capacity" and 
described the beneficiary's foreign employment as follows: 
1. Manages the organization, or a department, subdivision, function, or component of the 
organization: 
[The beneficiary] was responsible for technology and quality issues related to tire 
manufacturing. He had overall responsibility for introduction of new tires to the plant, 
meeting all customer, government and company requirements, directing all tire development 
activities and designing, implementing and respecting all systems in these areas. He oversaw 
and directed action to prevent occurrences of new product process and quality system 
nonconformities; identified and recorded problems relating to product, process and quality 
systems; initiated, recommended or provided solutions; verified implementation or provided 
solutions; and controlled further processing, delivery, or installation of nonconforming 
product until deficiency or unsatisfactory condition had been corrected. He was responsible 
for ensuring that the business center objectives were supported with respect to safety, product 
and waste. 
[The beneficiary] had accountability for the team's quality assurance, results and corrective 
actions. He identified opportunities for improvement and implemented action plans to 
address quality issues. 
2. Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function . . . [:I 
[The beneficiary] provided leadership, direction and development to his team and oversaw 
team member involvement while striving to facilitate their personal development and training 
to maximize successful team decisions. 
[He] was responsible for team building and team facilitation. He delegated responsibility to 
team members as well as involved the team in the decision making process. He had overall 
responsibility for time management and organizational skills of his team and development 
and trained team members . . . . He was responsible for maintaining his team performance 
within the plant, regional and corporate and objectives. He planned, motivated, coached and 
lead team setting tasks and monitored performance of members . . . . 
3. Has authority to hire and fire or recommend subordinate managers, supervisors and 
employees along with other personnel actions . . . [:I 
[The beneficiary] directly oversaw the activities of the following subordinate associates who 
reported directly to him: Quality Technician, Quality/Die Technician and two Tire Building 
Drum Technicians over whom he provided leadership and technical support, provided 
recommendations with respect to hiring, firing and disciplinary actions; indirect reports 
included four Production Machine Set[-]Up Technicians who provided reports when required. 
4. Exercises discretion over the day-to-day operations of the activity or function for which the 
employee has authority[:] 
[The beneficiary] provided day-to day guidance, direction in managing his team to ensure the 
achievement of goals and objectives. He led his assigned team to reach the overall 
organization objectives. He managed workload, workflow, and compliance to maximize 
efficiency. . . . 
Additionally, with regard to the fourth criterion, the petitioner stated that the beneficiary was responsible for 
ensuring a safe work environment, minimizing waste by evaluating and analyzing scrap tires to determine 
appropriate corrective actions, improving productivity by initiating, evaluating, and integrating new systems 
and optimizing existing systems, and revising and maintaining procedures for "IS0 14001/QS900/TS 16949."' 
With regard to the beneficiary's proposed employment, the petitioner provided a similarly formatted job 
description. The petitioner listed the four criteria that comprise the statutory definition of "managerial 
capacity" and provided the following statements to explain how the beneficiary's job duties would fit within 
the parameters of each criterion: 
1. Manages the organization, or a department, subdivision, function, or component of the 
organization: 
[The beneficiary] provides management and technical leadership of all functions involving 
installation and evaluation of new highly complex curing software at Goodyear's North American 
and Latin American tire plants. He leads the advancement of the level of technical contribution 
to the business. He has broad[-]based discretionary authority and responsibility and has 
significant impact on driving the overall business through the direction, development, 
management, and coordination of activities involving new curing software . . . . He oversees, 
develops, and implements technical strategy and manages technical relationships and technology 
transfers between manufacturing locations and provides leadership that provides support for 
compounding process optimization. He ensures a safe work environment and leads process safety 
compliance . . . . He facilitates the implementation of systems and processes . . . . He coaches 
and trains associates to develop, implement, and monitor safety procedures. 
He oversees and directs the measurement and assignment of types of tire cures . . . to ensure a 
differentiating competitive advantage of Goodyear products and processes. He has overall 
responsibility and serves as Goodyear's expert for assessment of the correctness of tire cures 
assigned by the North American and Latin American cure compounders. 
He oversees and directs audits, analyzes and evaluates cure audit data, and recommends changes 
to technology based on results of assessments. He assists as necessary during inspections and 
product reviews, and ensures that documentation and procedures are consistent and in place to 
maintain plant compliance. 
2. Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function . . . [:I 
[The beneficiary] provides leadership, direction and development and oversees and 
coordinates the activities, including supervision, control and assignment of work, methods to 
be used, and has overall responsibility for work of subordinate technical support associates . . 
. . Additionally, one to two Cure Compounders at each North American and Latin American 
plant report to him for instructions on the installation and proper use of the new software and 
provide [the beneficiary] with periodic assessments of the software . . . . [The beneficiary] 
I While reference to "IS0 14001lQS900lTS16949" may be understood within the petitioner's given industry, the 
petitioner did not expressly define these symbols in layman's terms. The AAO is therefore unclear as to what these terms 
actually mean or what it means to revise and maintain procedures with respect to "IS0 14001/QS900/TS16949." 
Page 6 
assesses the correctness of tire cures assigned to the Plant Cure Compounders and provides 
feedback. . . . Additionally, he is directly responsible for the management of the technology 
initiative function through the use of new curing related software. 
He is highly visible to staff and peers and promotes hands-on, high involvement approach to 
problem solving. . . . He effectively interacts with multiple disciplines, cross-functional 
teams and business unit functions . . . . He interfaces with other Goodyear departments and 
management to plan and adjust priorities quickly to respond to customer and manufacturing 
needs. He acts as a liaison with Research science, Chemical division, QTEC and Production. 
3. Has authority to hire and fire or recommend subordinate managers, supervisors and 
employees along with other personnel actions . . . [:I 
[The beneficiary] directly oversees the activities of the following subordinate professional 
associates who report to him: R&D Associate and Lead Compounder (who is specific to 
compounding in general). [The beneficiary] has discretionary authority with respect to 
promotional recommendations and actions and takes part in their annual performance 
appraisals. He also oversees the activities of one to two Cure Compounders at each North 
American and Latin American Plant who report to him for instructions on the installation and 
proper use of the new software. 
With regard to the fourth criterion--exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority-the petitioner provided the following list of the beneficiary's 
principal responsibilities: 
Formulate, conceptualize, and implement technical strategy to optimize curing specifications 
for North America and Latin America Plants[.] 
Serve as [a] resource to major capital projects[.] 
Investigate and utilize new technologies to improve the development process and 
communicates advancements to cross-functional teams[.] 
Identify product strengths and weaknesses to teams, Line, Advanced and Material Support[.] 
Provide highly complex technical leadership and direction and support the technical team 
regarding product validation issues to deliver commercial results[.] 
Manage problem resolution concerning customer complaints involving product performance 
relative to material quality throughout the development cycle and follow products to 
production release[.] 
Direct and support Plant cure level audits for the North America and Latin America tire 
plants[.] 
Review North America and Latin America cure assignment practices. 
It is noted that the petitioner also provided separate percentage breakdowns to better explain how the 
beneficiary allocated his time during his employment abroad and how he would allocate his time in the 
proposed position with the U.S. entity. As the director incorporated both percentage breakdowns into the 
denial, the AAO need not repeat this information. 
On December 24, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner 
to provide organizational charts of the foreign and U.S. employers, clearly depicting the beneficiary's 
placement within each entity's organizational hierarchy and describing the job duties of the beneficiary's 
immediate supervisors and subordinate employees. The petitioner was also asked to provide a copy of the 
approved Form 1-129s and the supporting documents that were used to classify the beneficiary as an L-IB 
nonimmigrant. 
The petitioner complied with the director's RFE, submitting organizational charts for both entities as well as 
the approved L-1B petition and supporting documents. The organizational chart pertaining to the foreign 
employer depicted a plant manager as head of the organization with eight subordinate positions directly 
subordinate to him. It is noted that the individual who was identified as the plant manager also held the 
position of manager of technology quality systems to which the beneficiary was directly subordinate. The 
beneficiary's subordinates included a quality technician, a die technician, two drum technicians and four set- 
up technicians. The petitioner provided a list of job duties describing the tasks assigned to the quality 
technician, the die technician, and the two drum technicians, respectively. 
The petitioner also provided its own organizational chart, which depicted the beneficiary's position as 
immediately subordinate to the chief engineer of global processing and cure technology, which was shown as 
one of two top-most positions within the hierarchy. The beneficiary's three subordinates included one lead 
compounder in charge of the North American plant, the Asia compounding plant consisting of nine 
compounders, and a Latin American plant consisting of seven compounders. It is noted that the chart did not 
list a lead compounder either for the plant in Asia or the plant in Latin America. In a separate submission, the 
petitioner indicated that the education requirements for general compounding include a bachelor of science 
degree in engineering or science. 
Lastly, the petitioner provided a copy of the support letter dated January 2, 2008, which was submitted in 
support of the previously filed Form 1-129s. The letter included a list of seven primary job responsibilities 
that were used to describe the beneficiary's employment abroad. 
On March 2, 2009, the director issued a decision denying the petition. The director concluded that the 
petitioner failed to establish that the beneficiary was employed abroad or that he would be employed by the 
U.S. entity in a qualifying managerial or executive capacity. With regard to the beneficiary's foreign 
employment, the director found that at least 50% of the beneficiary's time was spent performing daily 
operational tasks, which did not fit within the definition of managerial or executive capacity. The director 
also found that the foreign job description that the petitioner submitted in support of the Form I-129S, which 
was filed to classify the beneficiary as a specialized knowledge employee, was inconsistent with the 
description of foreign employment that was submitted in support of the instant Form 1-140 that seeks to 
classify the beneficiary as a multinational manager. Namely, the director noted that the petitioner did not 
refer to any supervisory or managerial duties when describing the beneficiary's foreign employment in the 
submissions used to support the nonimmigrant petition. 
On appeal, counsel challenges the director's analysis of the percentage breakdown that was submitted to 
establish the beneficiary's time allocation during his foreign employment. After reviewing the document in 
question, the AAO finds that counsel's objection was based on mere semantics and did not substantively raise 
a valid deficiency in the director's finding. A thorough reading of the job description in question indicates 
that the beneficiary did in fact spend 20% of his time on the manufacturing engineering methods, theories, 
and techniques that would correct any problems with scrap tires. While the director's assessment may not 
convey the specialized nature of the beneficiary's involvement with scrap tires, the goal of the director's 
analysis was to determine how much of the beneficiary's time was spent performing non-qualifying tasks. 
The fact that a task may require specialized knowledge does not mean that the task is of a qualifying 
managerial or executive nature. Here, the petitioner indicated that the beneficiary not only investigated the 
root cause of the problems, but he also provided solutions to those problems, thus indicating that the tasks 
associated with scrap tires were necessary to provide quality products. It is noted 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). 
In light of the above statutory requirement, the AAO agrees with the director's questioning of the beneficiary's 
role as it pertains to customer relations. In the present matter, the percentage breakdown that was specifically 
addressed by the director indicates that 20% of the beneficiary's time was devoted to customer and internal 
requirements regarding quality and performance issues of the products as well as finding solutions to those 
issues. Again, the petitioner does not clarify or provide sufficient information to enable U.S. Citizenship and 
Immigration Services (USCIS) to conclude that the beneficiary is not directly involved in finding the 
solutions for customer quality requirements. If the beneficiary is not so involved, the petitioner must establish 
with sufficient clarity what specific tasks the beneficiary performed in relation to the more general job 
responsibility. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, the petitioner indicated both in the additional job description that was submitted in the support 
letter dated December 8, 2008 and in the percentage breakdown that a portion of the beneficiary's time was 
spent overseeing the work of others. The percentage breakdown more specifically indicated that 20% of the 
beneficiary's time focused on providing leadership to the subordinates named in the foreign entity's 
organizational chart. However, the evidence of record does not establish that the beneficiary's subordinates 
were supervisory or professional employees. Thus, the 20% of the beneficiary's time that was spent 
overseeing the work of such subordinates would not be deemed as time spent within a qualifying managerial 
or executive capacity. 
Lastly, despite the fact that the director expressly requested that the petitioner explain why the job description 
submitted in support of the Form 1-129s failed to mention any managerial or supervisory aspects of the 
beneficiary's foreign employment, counsel did not address this issue on appeal. 
In summary, the petitioner has failed to establish that the beneficiary's employment abroad consisted 
primarily of qualifying managerial or executive tasks. As discussed above, it appears that the beneficiary 
spent a considerable portion of his time providing technical solutions to complex issues. While this may 
establish that the beneficiary was employed in a specialized knowledge capacity, it does not establish that he 
was employed in a primarily managerial or executive capacity as required for the immigrant classification 
sought in the present matter. Therefore, on the basis of this determination this petition cannot be approved. 
Next, the director questioned the managerial or executive nature of the beneficiary's proposed employment 
given the information in the petitioner's organizational chart, which indicates that the beneficiary would 
manage subordinate employees who work in plants that are located in Asia and South America. The director 
surmised that the primary portion of the beneficiary's time would be spent developing and implementing 
testing software, drafting the operating manual, and training cure compounders. 
On appeal, counsel repeats the percentage breakdown provided initially in support of the petition and argues 
that the beneficiary would fill the role of function manager. However, 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. As previously stated, an employee who primarily performs the tasks necessary 
to produce a product or to provide services is not considered to be 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. 
In the present matter, the AAO finds that the director's assessment of the percentage breakdown describing 
the beneficiary's time allocation was on point in that 60% of his time would be spent using test analysis 
software to create an operating manual. Although the petitioner indicated that a portion of that 60% would be 
spent overseeing the review and modification of the manual, it is unclear who would be charged with 
underlying modification and/or expansion tasks. While the beneficiary's tasks may be highly specialized in 
nature, the petitioner has failed to establish that such tasks amount to managing an essential function. 
Therefore, the AAO cannot conclude that the beneficiary would be employed in a qualifying managerial or 
executive capacity. On the basis of this additional determination the instant petition cannot be approved. 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.