dismissed EB-1C Case: Engineering Management

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
tdcntmlng data de Feted t0 
 Washington, DC 20529-io90 
prevent clearly unwarranted 
 U. S. Citizenship 
invasion of personal privacy 
 and Immigration 
PUBLIC C Services 
FILE: - OFFICE: NEBRASKA SERVICE CENTER 
LIN 07 094 50193 
IN RE: 
AUG 0 4 :to09 
Date: 
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. 9 1 153(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. 5 103.5 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 reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
4 - 
John F. Grissom 
* 
Acting Chief, Administrative Appeals Office 
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 Michigan corporation that seeks to employ the beneficiary as its marketing and 
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. 6 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a managerial 
or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his 
arguments. 
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 101 (a)(44)(A) of the Act, 8 U.S.C. 8 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. 8 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 January 31, 2007, which 
includes the following description of the beneficiary's proposed U.S. employment: 
Will manage Human Resources: 
Manage hiring and interviewing of new employees, requiring in[-]depth 
knowledge of all positions in the plant, so as to train and recognize appropriate 
placement of new and potential employees; 
Manage weekly schedules, in addition to overtime schedules; 
Manage, supervise and train 15-20 employees. 
Will manage [the] Laboratory: 
Manage [the] chemical inventory for [the] production line in addition to [the] 
analysis of chemicals; 
Application of expertise in metallurgy and metal finishing re [sic] behavior of 
various alloys and their reaction to various in-house treatments . . . . 
Will manage Production Scheduling: 
Responsible, through regular contact with clients and transportation companies, 
staggering production to encompass shipping deadlines; 
Responsible to [sic] schedule production to provide the optimum finishing 
environment for varying products, i.e., stagger certain parts in daily schedules, 
and concentrating parts during the highs and lows of the chemical cycle. 
Will manage Quality Control: 
Responsible to [sic] test surface finishes, corrosion resistance, and coating 
thickness of all processed parts; 
Liaison to customers and independent research facilities to maintain the highest 
echelon of quality in product; 
Responsible to [sic] maintain and institute efficiency standards, furthermore, 
ensure all procedures are IS0 9001 compliant. 
Will manage plant and equipment maintenance: 
Manage and maintain all in[-]house equipment in addition to adhering to strict 
service schedules while establishing and maintaining a maintenance and 
equipment budget; 
Manage and provide expertise with respect to plumbing, welding, electrical repair 
in order to maintain the capacity and schedules of [the] plant as well as 
emergency situations to contain varying occurrences . . . in order to limit losses 
and collateral damage until correction can be implemented; 
*- Page 5 
Manage and apply in-house procedures with respect to the maintenance of 
equipment in a manner that will result in optimum efficiency . . . . 
Will manage closely held Chemical Concentrations: 
Responsible to measure and analyze the "baths", [sic] as well as necessary 
adjustments with respect to precise calculation in order to maintain stability in the 
process and maintenance of equilibrium in the fixed components re [sic] process. 
The petitioner also stated that the beneficiary would oversee 15-20 employees. It is noted that, while 
the petitioner generally stated that the beneficiary was employed abroad by the petitioner's affiliate 
entity, a formal description of the beneficiary's duties and responsibilities during his employment 
abroad was not provided. 
On August 7, 2007, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide detailed descriptions of the beneficiary's foreign and proposed employment. 
The director stated that the job descriptions should include the job titles, levels of authority, and 
specific job duties that are associated with the beneficiary's foreign and proposed employment. The 
petitioner was also asked to describe the types of employees the beneficiary supervised and would 
supervise. Additionally, the director instructed the petitioner to provide both entities' organizational 
charts illustrating the beneficiary's position with respect to other employees within each entity's 
organizational hierarchy. 
In response, the petitioner provided a letter dated August 30, 2007 from president of 
the petitioning entity. stated that he assumes responsibility for most of the executive 
level job duties, but claimed that he dele ates certain executive level tasks to the beneficiary as the 
company's vice president. stated that the beneficiary is directly responsible for 
production as well as sales and marketing in his capacity as the company's vice president and 
marketing and sales manager. claimed that the beneficiary carries out both executive 
and managerial level tasks, including managing human resources, which the beneficiary does by 
overseeing accounting and office management-and by hiring and firing personnel. - 
further stated that the beneficiary supervises all employees, except for the president himself, and that 
none of these employees, with the exception of the accountant, are degreed professionals. Mr. 
repeatedly referred to the beneficiary as a function and people manager as well as an 
executive level employee. Although 
 referred the director to a November 25, 2003 
statement that was initially submitted in support of a previously filed nonimmigrant petition, it is 
noted that the description referenced is virtually identical in content to the description submitted in 
support of the instant petition. As the previously submitted description conveys no new or additional 
information, it will not be restated in this decision. 
With regard to the requested organizational charts, the petitioner provided a chart illustrating its own 
hierarchical structure, which shows the president in the top-most position and the vice-president as 
the second-in-command. Directly subject to the vice-president's oversight are the sales and 
marketing department, the production department, and the accountant. It is noted that the 
beneficiary is named as the person in charge of the sales and marketing and production departments, 
thus indicating that the beneficiary in his capacity as vice-president oversees himself in the two 
Page 6 
subordinate positions. The chart further shows that the beneficiary oversees three lab technicians, 
who have no subordinates, and a plant manager, who oversees employees in two types of shift 
production, shipping, and maintenance. The petitioner did not comply with the director's request for 
a more detailed description of the beneficiary's foreign employment and the foreign entity's 
organizational chart. It is noted that failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). 
In a decision dated January 23, 2008, the director denied the petition finding that the petitioner failed 
to establish that the beneficiary was employed abroad and that he would be employed by the U.S. 
petitioner in a qualifying managerial or executive capacity. With regard to the beneficiary's foreign 
employment, the director observed an undated resume in which the beneficiary claimed to be 
responsible for quality control and communication with the company's customers. The director 
observed that no additional evidence was submitted to establish that the beneficiary's employment 
abroad was within a qualifying capacity. With regard to the beneficiary's proposed position, the 
director observed that the beneficiary has no subordinates in his position as sales and marketing 
manager. The director further observed that the beneficiary's position as the head of production does 
not involve supervising professional employees. 
On appeal, counsel submits a letter dated March 11, 2008, in which he asserts that a thorough 
position description was previously provided. Counsel claims that the beneficiary was managing 
human resources during his employment abroad and continues to do the same in his current U.S. 
position. Counsel's statements, however, are not persuasive in establishing eligibility, particularly in 
the matter of the beneficiary's employment abroad for which no supplemental information was 
provided in response to the RFE, despite the director's express request for a detailed description of 
the beneficiary's specific job duties. Contrary to counsel's assertions, merely claiming that the 
beneficiary managed human resources during his employment abroad does not constitute the type of 
detailed description of job duties the director asked for in the RFE, a description that was deemed 
necessary to establish eligibility in this matter. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. 5 204.5(j)(5). 
 The AAO will then 
consider this information in light of the company's organizational hierarchy and the beneficiary's 
position therein. In the present matter, the petitioner did not provide a detailed description of job 
duties; nor did it provide the requested organizational chart illustrating the foreign entity's staffing 
hierarchy and the beneficiary's position therein. Thus, due to the petitioner's failure to submit this 
highly relevant information, the AAO has no basis upon which to conclude that the beneficiary's 
employment abroad primarily involved the performance of tasks withn a qualifying managerial or 
executive capacity. 
With regard to the beneficiary's proposed employment, the petitioner provided a supplemental job 
description and organizational chart. However, neither document is sufficient to establish that the 
beneficiary would be relieved from having to primarily perform non-qualifying tasks on a daily 
basis. The supplemental job description, which was provided by the president of the petitioning 
entity, is confusing in its attempt to establish the beneficiary as both a personnel and function 
manager as well as someone that is employed in an executive capacity. First, with regard to the 
claim that the beneficiary is both a personnel and function manager, the AAO must note that 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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1 (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. 8 C.F.R. 204.5(i)(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. 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. 593, 604 (Comm. 1988). Thus, the mere 
fact that is claiming that the beneficiary is both a personnel and a function manager 
suggests either an inconsistency or confusion with regard to the difference between the two 
significantly different types of management positions. 
Additionally, a beneficiary may not claim to be employed as a hybrid "executive/manager" and rely 
on partial sections of the two statutory definitions. If the petitioner chooses to represent the 
beneficiary as both an executive and a manager, it must establish that the beneficiary meets each of 
the four criteria set forth in the statutory definition for executive and the statutory definition for 
manager. In the present matter, the record lacks a comprehensive description of the beneficiary's 
day-to-day tasks, thus further confusing the distinction between someone who is employed in a 
managerial capacity and someone employed in an executive capacity. While the AAO 
acknowledges that certain positions may fit both statutory definitions, the burden is on the petitioner 
to fully discuss the beneficiary's specific job duties (which were requested in the present matter) and 
explain how those job duties fall within the given statutory definitions. Here, the petitioner has 
failed to provide a detailed description of specific job duties, often relying on general terminology 
that discusses broad responsibilities and job objectives rather than the specific tasks that allow the 
beneficiary to reach those objectives. For instance, the petitioner stated that the beneficiary would 
manage hiring and firing, weekly schedules, and a staff of 15-20 employees. However, the actual 
tasks associated with these managerial responsibilities were not specified. The petitioner also 
claimed that the beneficiary would manage chemical inventory and apply his claimed expert 
knowledge of metallurgy. Again, the petitioner did not specify the tasks that would be involved in 
fulfilling these business objectives. It is noted that the actual duties themselves reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), agd, 
905 F.2d 41 (2d. Cir. 1990). Thus, merely conveying the beneficiary's discretionary authority is not 
a detailed list of underlying tasks and an explanation establishing how such tasks fit the definition of 
managerial and/or executive capacity. 
The AAO further notes that portions of the job description indicate that some of the beneficiary's 
time would be attributed to the performance of non-qualifying tasks, including maintaining regular 
contact with clients and independent research facilities and testing the petitioner's finished products 
for quality control purposes. In light of the petitioner's legal burden of establishing that the 
beneficiary would spend the primary portion of his time performing tasks within a qualifying 
capacity, it is increasingly important for the petitioner to specify how much of the beneficiary's time 
would be attributed to non-qualifying tasks. Here, not only has the petitioner failed to provide an 
adequate job description containing sufficient details to convey an understanding of what tasks the 
beneficiary would perform on a daily basis, but the petitioner has also failed to establish how much 
of the beneficiary's time would be attributed to tasks that are outside the qualifying capacity. 
Lastly, while a review of the petitioner's organizational chart illustrates the beneficiary's position as 
one entailing significant authority and oversight, the record does not establish that the beneficiary's 
personnel management would primarily involve overseeing supervisory, professional, or managerial 
employees. In fact, the record clearly states that the only degreed professional among the 
beneficiary's subordinates is the accountant. Thus, any time spent managing or overseeing the 
remaining, non-professional, non-supervisory, or non-managerial members of the beneficiary's 
subordinate staff cannot be considered as time spent performing tasks within a qualifying capacity. 
That being said, the petitioner is not required to establish that all of the beneficiary's time would be 
spent performing qualifylng tasks, such as overseeing professional, supervisory, or managerial 
personnel. However, when claiming that a significant portion of the beneficiary's time is devoted to 
personnel management, the petitioner must clearly establish that the primary portion of that time 
would be spent managing individuals that can be deemed professional, supervisory, or managerial. 
Here, in light of the fact that the beneficiary has only one subordinate that can be deemed a degreed 
professional, it is unlikely that the primary portion of the time that would be devoted to personnel 
management could be deemed as time spent performing tasks within a qualifying capacity. 
In summary, the petitioner has not provided sufficient evidence or information to establish that the 
beneficiary was employed abroad and that he would be employed in the United States in a qualifylng 
managerial or executive capacity. Based on these two independent grounds of ineligibility, the AAO 
cannot approve this petition. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), afd, 345 F.3d 683 (9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.