dismissed EB-1C Case: Freight Forwarding

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLlCCOPY 
DA TE: OCT 3 1 2011 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
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)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § IIS3(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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$630. Please be aware that 8 C.F.R. § 103.S(a)(l)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a _ corporation that seeks to employ the beneficiary as its vice president and chief 
operating officer. 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)(I)(C), as a multinational executive or manager. 
The director determined that the petitioner failed to establish eligibility for the immigration benefit sought 
and denied the petition. Although the director cited 8 C.F.R. § 204.5(g)(2), which requires the petitioner 
to establish its ability to pay the beneficiary'S proffered wage, a specific discussion addressing this issue 
was not included in the denial. Regardless, after reviewing the record in its entirety, the AAO finds that 
there is no basis for concluding that the petitioner does not have the ability to pay, as the evidence shows 
that the beneficiary was compensated at or near the proffered wage at or around the time the Form 1-140 
was filed. As the petitioner's ability to pay will not serve as a basis for dismissing the instant appeal, this 
issue need not be addressed further. 
The record also shows that the petition was denied on two grounds that the director expressly states in his 
decision. Namely, the director determined that (1) the petitioner failed to establish that it has a qualifying 
relationship with the beneficiary'S foreign employer and that (2) the petitioner failed to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
Despite the director's findings, the AAO concludes that the record contains sufficient evidence to 
establish that the petitioner and the beneficiary's foreign employer have a qualifying relationship. As 
such, the AAO hereby withdraws the director's adverse finding with regard to this issue. The remainder 
ofthis decision will focus primarily on the beneficiary's proposed employment with the U.S. petitioner. 
On appeal, counsel disputes the director's conclusions and provides a brief and supporting evidence in 
support of his arguments. All relevant documents and information will be addressed in the discussion 
below. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 
--Page 3 
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. 
The primary issue in this proceeding calls for an analysis of the beneficiary'S proposed job duties with the 
U.S. entity. Specifically, the AAO will examine the record to determine whether sufficient evidence has 
been submitted to establish that the petitioner would employ the beneficiary in the United States in a 
qualifying managerial or executive capacity. 
Section 1 01 (a)(44)(A) ofthe 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--
(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: 
Page 4 
The tenn "executive capacitylt 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 president of the petitioning entity,_ submitted a statement 
dated December 20, 2008 in which he stated that the beneficiary's proposed position would involve 
operations management, including the purchase of transportation, and management of the company's 
finances, sales, documentation, compliance with the Federal Maritime Commission, filing tariffs 
regarding the freight forwarding operations, and managing personnel both in the United States and in the 
Dominican Republic. Although the petitioner also provided a copy of its May 2008 organizational chart, 
the record shows that the Form 1-140 was filed on January 5, 2009 and thus the organizational hierarchy 
that was in place seven months prior to the filing of the petition is irrelevant in the present matter. It is 
noted that the regulations require the petitioner to establish eligibility based on facts that exist at the time 
the Form 1-140 is filed. See 8 C.F.R. §103.2(b)(l2). 
As the director determined that the petitioner had not established eligibility at the time of filing, a request 
for evidence (RFE) was issued on June 23, 2009. The beneficiary's proposed employment with the u.S. 
entity was among the issues that were addressed in the RFE. Namely, the petitioner was instructed to 
provide an analysis of the qualifYing and non-qualifYing job duties the beneficiary would perform in order 
to determine whether the primary portion of the beneficiary's time would be allocated to tasks within a 
qualifYing capacity. The director asked the petitioner to list the beneficiary's actual daily job duties and 
to specifY the percentage of time that would be allocated to each task. The director explained that while 
the beneficiary's employment may consist of a mix of both qualifying and non-qualifYing tasks, the 
petitioner must establish that the non-qualifying tasks will not consume the primary portion of the 
beneficiary's time. 
In response, submitted a statement indicating that in his proposed position with the U.S. 
entity, the beneficiary would assume managerial responsibility for worldwide carrier relations, including 
engaging in contract negotiations to establish rates and services to be provided by carrier vendors. • 
_estimated that one third of the beneficiary's time would be spent ensuring that the carrier vendors 
carry out the services that are specified in their respective contracts with the petitioner; another one third 
of his time would be allocated to contract negotiation; and the remaining one third of the beneficiary'S 
Page 5 
time would be spent training, teaching, and coaching subordinate staff.' The petitioner also provided the 
beneficiary's official position description, including the position's salary range, full compensation 
package, qualification criteria, and the following list of job responsibilities: 
• With subordinates, develop annual customer-based Volume and Revenue Budget and 
Expense Budget for [the petitioner's] operations, This includes all services, all 
operations and facilities and all personnel. 
• With management, develop Pricing and Regulatory strategies for all services[,] 
Organize & manage Administrative functions of Human Resources, Govermnent 
Regulations, Insurance, and Accounting of [the petitioner]. 
• Negotiate service contracts and rates with ocean carrier partners worldwide[.] 
• Develop intermodal transport strategies[.] 
• Negotiate Agency contracts worldwide[.] 
• Maintain overall responsibility for all expense management. 
• Execute leases and manage all facilities. 
• Supervise Pricing levels for all Sales efforts. 
• Set sales budget and strategies for U.S. Sales[.] 
• Assist the President with all functions as required[.] 
• Manage community affairs coordination in all major markets served[.] 
• Other duties as assigned by management. 
The petitioner also provided a copy of its 2009 organizational chart, which depicts the beneficiary at the 
top of the hierarchy, subordinate only to the company's president,_. The chart indicates that 
the beneficiary's subordinates in the United States include a general manager, a vice president of sales, 
and LCL & Airfreight manager, the latter of which is shown as an open position. The sales vice president 
is shown with an inside sales position as his subordinate and the general manager is shown as overseeing 
four employees who fill accounting, credit and collections, interrnodal, and documentation positions. 
, Although _ indicated that the beneficiary would continue to assume a leadership role with his foreign 
employer, the primary concern that will be addressed in the current proceeding pertains to the beneficiary's 
proposed employment with the U.S. entity. As the beneficiary's continued responsibility to the foreign entity is 
technically not part of his proposed employment with the U.S. entity, any job duties the beneficiary will continue to 
perform for the foreign entity need not be addressed in this decision. 
Page 6 
On October 13,2009, the director issued a decision denying the petition based, in part, on the conclusion 
that the petitioner failed to establish that the beneficiary would be employed in the United States in a 
qualifYing managerial or executive capacity. Although the director properly stressed that the beneficiary 
must allocate the primary portion of his time to qualifYing managerial or executive tasks in order to merit 
the sought after immigrant visa classification, he devoted a considerable part of his analysis to the 
petitioner's staffing, determining that the petitioner lacked an adequate support staff and would thus result 
in the beneficiary having to spend the majority of his time acting as a first-line supervisor and generally 
performing the petitioner's daily operational tasks. 
While the decision to deny the petition will be affirmed, the AAO finds that the director placed undue 
emphasis on the petitioner's staffing and failed to address the beneficiary's proposed job description, 
which is a primary concern when examining the executive or managerial capacity of the beneficiary. See 
8 C.F.R. § 204.5U)(5). Specific information about the beneficiary's job duties is crucial in order to 
properly consider the petitioner's organizational hierarchy and its overall ability to relieve the beneficiary 
from having to primarily perform the daily operational tasks. In the instant matter, the director omitted a 
key portion of the analysis by focusing on the petitioner's staffing without first giving due consideration 
to the beneficiary's proposed job description. 
Contrary to the director's finding, the petitioner's organizational chart does not outwardly convey the 
understanding that the beneficiary will primarily perform non-qualifYing tasks. Rather, the chart shows 
the beneficiary in a top-level leadership position with two managers in the United States as his direct 
subordinates. The chart further indicates that the non-managerial and non-professional employees would 
be supervised by the beneficiary's subordinates, not by the beneficiary himself. A thorough reading of 
the beneficiary's proposed job description, however, leaves several key questions unanswered and allows 
for the possibility that the beneficiary may allocate a considerable portion of his time to performing non­
qualifYing job duties. For example, while the petitioner indicated that the beneficiary would be 
responsible for developing the petitioner's revenue and expense budgets for services, operations, 
facilities, and personnel, the beneficiary's specific role in these budget activities was not explained and 
the specific allotment of time was not provided. As the job description indicates that the beneficiary 
would work with his subordinates to create the revenue and expense budgets, clarifYing information is 
needed in order to distinguish the beneficiary's role and job duties from those of his subordinates in terms 
of their respective contributions to creating the petitioner's budgets. The petitioner similarly failed to 
clarifY the beneficiary's specific role in developing pricing and regulatory strategy, thus precluding the 
AAO from being able to determine whether the beneficiary's duties regarding pricing and regulatory 
strategy are of a qualifYing nature. 
Other items listed as part of the beneficiary's job description indicate that the beneficiary would perform 
various non-qualifYing tasks. Specifically, the petitioner has not established that negotiating contracts 
with ocean carrier partners, negotiating agency contracts, and executing leases are job duties within a 
managerial or executive capacity. While the AAO acknowledges that no beneficiary is required to 
allocate 100% of his time to managerial- or executive-level tasks, the petitioner must establish that the 
non-qualifYing tasks the beneficiary would perform are only incidental to his proposed position. 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) 
Page 7 
and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive 
duties); see also Matter a/Church Scientology International, 191&N Dec. 593,604 (Comm. 1988). 
The job description offered fails to specify any time allocations that pertain to the beneficiary's functions. 
The petitioner's failure to provide the requested time allocations and relevant information that specifically 
identifies the beneficiary's job duties with sufficient clarity precludes the AAO from being able to 
affirmatively determine that the beneficiary's proposed employment would primarily involve the 
performance of managerial- or executive-level tasks. 
On appeal, counsel asserts that the beneficiary's role as the petitioner's chief operating officer is, "by any 
reasonable person's measure," a position within an executive capacity. Counsel points to the petitioner's 
previously approved L-I employment of the beneficiary, asserting that the approved nonimmigrant 
petition is proof that the petitioner meets the statutory definition of managerial or executive capacity. The 
AAO finds that counsel's argument is unpersuasive. 
Contrary to the underlying inference of counsel's argument, each nonimmigrant and immigrant petition is 
a separate record of proceeding with a separate burden of proof and must stand on its own individual 
merits. U.S. Citizenship and Immigration Services (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 prior nonimmigrant approvals do not 
preclude USCIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556,2004 WL 1240482 (5th Cir. 2004). Similarly, the approval of a nonimmigrant petition in no 
way guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. 
USCIS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-l petitions. 
See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; lKEA US v. US Dept. o/Justice, 48 F. 
Supp. 2d 22 (DD.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
If the previous nonimmigrant petitions were approved based on the same unsupported assertions that are 
contained in the current record, the approvals 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 0/ 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest 
that uscrs 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). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (ED. La.), affd, 248 FJd 1139 (5th 
Cir. 2001), cert. denied, 122 S.C!. 51 (2001). 
As discussed above, the job description that the petitioner offered in response to the RFE does not contain 
specific information about the beneficiary's actual day-to-day job duties, which are crucial in order to 
determine the nature of the beneficiary'S proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Page 8 
Supp. 1103, 1108 (E.D.N.Y. 1989), afj'd, 905 F.2d 41 (2d. Cir. 1990). As the petitioner failed to provide 
sufficient evidence to establish that the beneficiary's proposed position meets the statutory criteria, the 
AAO is unable to affirmatively conclude that the beneficiary would primarily perform tasks within a 
qualitying managerial or executive capacity. On the basis of this conclusion, the instant petition cannot 
be approved. 
[n 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.