dismissed EB-1C Case: Engineering

(b)(6)
DATE: NOV 0 5 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department ofHomeland Security 
U. S. Citizenship and Immigration Service 
Admini strative 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://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
)j~ 
~~'lt~g 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Texas corporation that seeks to employ the beneficiary as its engineering manager. 
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. § 1153(b)(l)(C), as a 
multinational executive or manager. 
The record shows that the petitioner filed the Form I-140 on October 24, 2012 and submitted a number of 
supporting documents in an effort to establish eligibility for the above stated immigration benefit. The 
petitioner's submissions included various tax and financial documents, corporate and bank documents, as well 
as documents that address the beneficiary's former employment with the foreign entity as well as his 
prospective employment with the U.S. entity. 
After reviewing the petitioner's submissions, the director determined that the petition did not warrant 
approval. Accordingly, on January 15, 2013, the director issued a request for evidence (RFE) instructing the 
petitioner to provide supplementary job descriptions for both positions listing the beneficiary's specific daily 
job duties with each entity and the amount of time that was and would be allocated to the items listed. The 
director further instructed the petitioner to provide both entities' organizational charts, evidence of wages and 
salaries paid to the petitioner's employees during the relevant time period, and job titles, job descriptions, and 
educational credentials of the beneficiary's subordinates. 
The petitioner responded to the RFE, providing job descriptions and organizational charts that addressed the 
beneficiary's employment and the employment of his subordinates at both entities. Nevertheless, the director 
denied the petition in a decision dated June 4, 2012, concluding that the petitioner failed to establish that the 
beneficiary's respective positions with his former employer abroad and with his prospective employer in the 
United States fit the statutory criteria for managerial or executive capacity. 
On appeal, counsel disputes the director's decision, asserting that the director failed to apply the 
preponderance of the evidence standard of proof when examining the petitioner's supporting evidence and 
thus improperly determined that the petitioner is not eligible for the immigration benefit sought herein. With 
regard to the proposed employment, counsel asserts that the director may not apply a higher standard of proof 
based on the petitioner's small size. 
Upon review, and for the reasons discussed herein, finds that counsel's assertions are not sufficient to 
establish that the beneficiary was employed abroad and that he would be employed in the United States in a 
qualifying managerial or executive capacity. 
I. The Law 
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): 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
* * * 
(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 I-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. 
Section 10l(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 m 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 
(b)(6)
Page4 
NON-PRECEDENT DECISION 
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. 
In general, when examining whether the beneficiary was or will be employed in a managerial or executive 
capacity, the AAO reviews the totality of the record, starting first with the petitioner's description of the 
beneficiary's job duties. See 8 C.P.R. § 204.5(j)(5). A detailed job description is crucial, as the duties 
themselves will reveal the true nature of the beneficiary's foreign and proposed 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). The AAO will 
then consider this information in light of other relevant factors, including (but not limited to) job descriptions 
and size of the beneficiary's subordinate staff, the nature of the business conducted by the entity in question, 
and any other relevant facts that may contribute to a comprehensive understanding of the beneficiary's 
respective roles within the organizations of the former employer abroad and the petitioning U.S. employer. 
First, the AAO will review evidence pertaining to the beneficiary's employment with the foreign entity, 
including the initial job description the petitioner provided in its supporting statement dated October 12, 2012 
followed by a review Qf the petitioner's RFE response, which includes a second and vastly different job 
description pertaining to the same position with the foreign entity. Turning first to the supporting statement, 
the petitioner stated that the beneficiary assumed the position of senior engineer of the Fab Engineering 
department in December 2001. The petitioner stated that during such employment the beneficiary performed 
the following job duties: (1) drew up, proposed, and helped make modifications in semiconductor equipment, 
machines, processes, or materials such that would result in cost reduction or improved operations; 
(2) provided engineering services and trained employees of customer companies in the use, operation, and 
maintenance of equipment; and (3) prepared reports, records, and directives for review by his supervisors. 
The AAO notes that nowhere within the original job description did the petitioner refer to the beneficiary as 
having assumed a supervisory position wherein he managed the work of subordinate engineers or other 
professionals. Moreover, a review of the beneficiary's Form G-325A, Biographic Information, which was 
submitted with his concurrently-filed Form I-485 Application to Adjust Status, shows that the beneficiary 
identified his position title abroad, as well as his initial position with the U.S. entity, as that of "engineer." In 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
fact, the Form G-325A shows that the beneficiary did not identify himself as an engineering manager until his 
third year of employment with the petitioning U.S. entity. 
However, when turning to the evidence provided in its RFE response with regard to the same position abroad, 
the record shows that the petitioner put forth an entirely different set of facts, asserting that instead of actually 
performing the job duties listed above in Nos. 1-3, the beneficiary "was in charge of managing" those very 
functions. The petitioner went on to provide a more detailed job description, claiming that the beneficiary 
was charged with overseeing a staff of seven employees who carried out the steps to provide a work product 
for the end user, i.e., the foreign entity's customer. While the petitioner maintained that a portion of the 
beneficiary's time was allocated to management of non-professional employees, the tone of the updated job 
description focuses on the beneficiary's supervisory job duties, including evaluating the work product created 
by subordinate employees, leading meetings within his own department - Fab Engineering - and attending 
management meetings with other department heads, analyzing the results of monthly, quarterly, and yearly 
business plans in order to identify problems and adjust the plans as needed, and actually creating the monthly, 
quarterly, and yearly business plans to serve the needs of the employer and customer. Although the 
petitioner's updated job description indicates that the beneficiary primarily performed tasks within a 
managerial capacity, the AAO cannot overlook the considerable inconsistency between the latter job 
description and the original description, which contained no indication that the beneficiary acted in the role of 
either a personnel or a 
function manager. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). In the present matter, the petitioner neither acknowledges nor provides a plausible 
explanation for having submitted two such vastly distinct job descriptions both of which were intended to 
address the same position held by the beneficiary during his former employment with the foreign entity. As 
such, the AAO cannot determine which, if either, of these job descriptions is the more accurate depiction of 
the beneficiary's former employment. Given the petitioner's failure to provide sufficient credible evidence 
regarding the beneficiary's employment abroad, the AAO cannot conclude that the beneficiary was employed 
in a qualifying managerial or executive capacity and on the basis of this initial adverse conclusion, the instant 
petition cannot be approved. 
Next, turning to the beneficiary's proposed employmentwith the U.S. entity, the AAO takes note of the U.S. 
entity's staffing composition. For instance, the beneficiary's two professional subordinates in his proposed 
position dedicate only 50% of their time to the work that they perform under the beneficiary's supervision. 
The record indicates that these employees would spend the remaining 50% of their time carrying out sales, 
marketing, and administrative tasks under the supervision of the company's president, thus leaving the 
beneficiary to oversee the work of non-professional and non-supervisory employees. 
While 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 performed during his former 
employment with the foreign entity were only incidental to the position in question. 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
(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 the present matter, the time allocations that the petitioner provided do not establish the proportion of time 
the beneficiary would allocate to overseeing the non-professional staff members, who outnumber the 
professional employees and work under the beneficiary's supervision on a full-time basis. Furthermore, while 
the beneficiary allocated a considerable portion of his time - 40% - to reviewing the work product during his 
employment abroad, the job description with regard to the beneficiary's proposed employment indicates that 
the beneficiary would allocate only 10% of his time to this job duty and focus his time more on managing 
personnel and meeting with customers to resolve problems and customer complaints. While the adverse 
decision in this matter does not rest on a single component of the job description, when the job description is 
considered in its totality along with the petitioner's limited staffing, the petitioner has not established that the 
beneficiary would more likely than not allocate his time to the performance of tasks within a qualifying 
managerial or executive capacity. 
Although counsel has also indicated that the beneficiary will manage a function, the fact remains that the 
provided job description places great emphasis on the beneficiary's role as a personnel manager. 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, 8 U.S.C. § 1101(a)(44)(A)(ii). If the petitioner wishes 
to raise this claim, it must provide a job description demonstrating that the beneficiary will manage the 
function rather than perform the duties related to the function. As noted above, 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. The petitioner may not claim to employ the beneficiary in the role of a 
function manager as a default mechanism when the petitioner cannot establish the beneficiary's role as a 
personnel manager whose primary concern is to manage a subordinate staff of managerial, supervisory, and/or 
professional employees. 
Additionally, counsel erred in relying on a district court case in order to establish that the size of the 
petitioning entity is not relevant. In reviewing the relevance of the number of employees a petitioner has, 
federal courts have generally agreed that USCIS "may properly consider an organization's small size as one 
factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. U.S. 
Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of 
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) 
(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is 
appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Given the AAO's consideration of the totality of the record, the petitioner's staffing was not considered alone 
to the exclusion of other relevant factors. Rather, the AAO duly considered the beneficiary's job description 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
along with the provided time allocations. In light of the evidence presented, the AAO finds that the petitioner 
has not established that the beneficiary's time would be primarily spent performing tasks within a qualifying 
capacity. As such, the petitioner has failed to demonstrate that it is eligible for the immigration benefit sought 
herein and on the basis of this second adverse conclusion 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, 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.