dismissed EB-1C Case: Freight Shipping

identliying den deleted to 
prevent ~113: 'il~warranted 
invasion of personal privacy 
PUBLIC COPX 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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 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. 
/r& 
~obetf-k~iemann, Chief 
Administrative Appeals Office 
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 rejected as untimely 
filed. 
In order to properly file a motion, the regulation at 8 C.F.R. 5 103.3(a)(2)(i) provides that the affected party 
must file the appeal within 30 days of service of the unfavorable decision. If the decision was mailed, the 
appeal must be filed within 33 days. See 8 C.F.R. 9 103.5a(b). 
In accordance with 8 C.F.R. 9 103.2(a)(7)(i), an application received in a CIS office shall be stamped to show 
the time and date of actual receipt, if it is properly signed, executed, and accompanied by the correct fee. For 
calculating the date of filing, the motion shall be regarded as properly filed on the date that it is so stamped by 
the service center or district office. 
The record indicates that the director issued the decision on February 23, 2006. It is noted that the director 
properly gave notice to the petitioner that it had 33 days to file the appeal. The appeal was received by 
Citizenship and Immigration Services (CIS) on Wednesday, March 29, 2006, or 34 days after the decision 
was issued. Therefore, the appeal was untimely filed. 
The regulation at 8 C.F.R. 5 103.3(a)(2)(v)(B)(I) states that an appeal which is not filed within the time 
allowed must be rejected as improperly filed. Accordingly, the appeal in the instant case will be rejected as 
untimely filed. 
Additionally, notwithstanding the petitioner's untimely filing, even if the appeal had been properly filed 
within the allowed time, it would have been summarily dismissed. 
The petitioner is a branch office of a Venezuela-based entity. The petitioner is engaged in the business of 
freight shipping via ocean transportation. It seeks to employ the beneficiary as its general 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. 9 1153(b)(l)(C), as a 
multinational executive or manager. 
On February 23, 2006, the director denied the petition based on two grounds of ineligibility: 1) the petitioner 
failed to establish that it would employ the beneficiary in a managerial or executive capacity; and 2) the 
petitioner failed to establish that the beneficiary was employed abroad in a quali&ing managerial or executive 
capacity. The denial addressed the relevant information and documents provided by the petitioner and 
responded with a well-reasoned analysis of the petitioner's submissions. More specifically, the director 
repeated the petitioner's descriptions of the beneficiary's foreign position and his proposed position in the 
United States. With regard to the latter position, the director accurately concluded that the description lacked 
"an accurate portrayal of the actual day-to-day duties of the petitioner at the petition[ing entity]." With regard 
to the beneficiary's position abroad, the director stated that the percentage breakdown provided in response to 
the request for evidence (RFE) was overly broad and failed to clearly define the beneficiary's role with the 
foreign entity. 
Additionally, the director addressed counsel's discussion of Matter of Tessel, properly concluding that Acting 
Association Commissioner's finding in the precedent case does not dictate a favorable outcome in the instant 
matter. 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). Specifically, the director observed that while the 
Page 3 
finding in Matter of Tessel established that a member of the board of directors would qualify as an employee 
of the company, it did not establish that any individual, by virtue of establishing board membership, would 
automatically qualify as someone employed in a managerial or executive capacity as defined in sections 
101(a)(44)(A) and (B) of the Act, respectively. Id. In fact, a thorough review of the case indicates that the 
issue of the beneficiary's duties was never addressed, as they were apparently not a disputed issue in that 
proceeding. Id. Moreover, the director in the instant matter has not issued a finding that the beneficiary, by 
virtue of his board membership, is not the petitioner's employee. As such, the case cited by counsel is entirely 
irrelevant to the issues that are in contention in here. 
The petitioner submitted an appeal urging the AAO to reconsider the director's decision and discussed 
evidence and information that had been previously submitted. While counsel acknowledges the director's 
grounds for denial, he offers no additional information to cure the deficiencies regarding the insufficient 
descriptions of duties. In fact, counsel states that "the beneficiary has no specific duties in his position on the 
Board of Directors" and persists with the claim that the beneficiary manages the essential function of directing 
the petitioner's business. However, 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. 
§ 204.56)(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. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 
576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornrn. 
1988)). In the instant matter, the petitioner fails to describe the essential function with any specificity and 
adds to ambiguity by failing to provide a detailed description of duties. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. Precedent case law furthers the significance of a detailed job 
description noting that the actual duties themselves will reveal the true nature of the 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). 
In the instant matter, the petitioner has failed to answer a critical question: What does the beneficiary 
primarily do on a daily basis? The same information is also lacking with regard to the beneficiary's foreign 
employment. Merely showing that the beneficiary was an active member of the foreign entity's board of 
directors is not an adequate substitute for the required description of daily duties. Nor can the AAO assume 
that the beneficiary's discretionary authority within the petitioning entity necessarily includes primarily 
qualifying duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103. Despite the director's comprehensive 
decision, which delineates the specific deficiencies, counsel has not supplemented the record with evidence or 
information specifically addressing the grounds for denial. 
As a final note, counsel makes a brief reference to the petitioner's current approved L-1 employment of the 
beneficiary. With regard to the beneficiary's L-1 nonirnmigrant classification, it should be noted that, in 
general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonirnrnigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See $9 101(a)(44)(A) and 
Page 4 
(B) of the Act, 8 U.S.C. § 1101(a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonirnrnigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
Cfi $5 204 and 214 of the Act, 8 U.S.C. $9 1154 and 1184; see also 
 316 of the Act, 8 U.S.C. 5 1427. 
In addition, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. The approval of a nonimmigrant 
petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same 
beneficiary. CIS denies many I- 140 immigrant petitions after approving prior nonimmigrant 1-1 29 L-1 
petitions. See, e.g,, Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 
F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
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 CIS 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 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The regulation at 8 C.F.R. § 103.3(a)(l)(v) states, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the 
party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 
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. Inasmuch as the petitioner has failed to identify 
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not 
sustained that burden. However, based on the petitioner's untimely filing of the Form I-290B, the appeal will 
be rejected. 
ORDER: The appeal is rejected.